ODC 2014

The plaintiffs appealed a Master's order dismissing their $3 million professional negligence action against two law firms for delay at a status hearing.

The Master found three years of unexplained delay and concluded the plaintiffs failed to show the defendants would not suffer non-compensable prejudice if the action proceeded.

The Divisional Court upheld the Master's decision, confirming that the 'Faris test' for dismissal for delay is a strict two-step conjunctive test and rejecting the plaintiffs' argument for a third 'contextual' or 'just result' step.

The appeal was dismissed with costs.

The appellant was successful on an appeal of a Master's refusal to allow amendments to a Statement of Claim and sought costs.

The court awarded costs to the appellant for both the motion before the Master and the appeal, totaling $15,405.75.

However, the respondent successfully argued that the costs order should be stayed because the appellant had two outstanding costs orders against him in other proceedings totaling over $330,000.

The court stayed the costs order until the appellant paid the outstanding costs orders, noting that a party cannot seek the court's assistance while refusing to respect its previous orders.

The appellant physiotherapist pleaded guilty to professional misconduct for misrepresenting his educational credentials and practice hours.

He appealed the Discipline Committee's penalty of a 12-month suspension and a $25,000 costs award.

The Divisional Court applied the reasonableness standard of review and dismissed the appeal, finding that the penalty was justified for specific and general deterrence given the serious nature of the misrepresentations, and that the costs award was an appropriate proportion of the actual costs incurred.

The applicant sought to vary an order of a single judge who had denied his request to adjourn a motion to extend the time for filing a Small Claims Court appeal.

The underlying action involved a negligence claim against a paralegal, which had been dismissed.

The Divisional Court found no error in the motion judge's decision, noting that the self-represented applicant failed to provide concrete justification for the delay or the adjournment.

The application was dismissed with no order as to costs.

The plaintiff appealed a jury verdict arising from a motor vehicle accident where his motorcycle collided with the defendant's left-turning truck while the plaintiff was attempting to pass.

The jury apportioned liability 85% to the plaintiff and 15% to the defendant, and assessed total damages at $206,958.46, resulting in a net award of $16,500.

On appeal, the plaintiff argued the apportionment of liability and assessment of damages were unreasonable and that the jury relied on inadmissible lay opinion evidence.

The Divisional Court dismissed the appeal, finding the trial judge's instructions were adequate, the lay witness was properly confined to fact evidence, and the jury's verdict on both liability and damages was supported by the evidence and not plainly unreasonable or unjust.

The appellant appealed an order of a case management Master striking its defence of set off and counterclaim due to repeated breaches of court orders and failure to produce documents.

The Divisional Court applied the standard of review for discretionary orders of a Master, finding that the Master had ample evidentiary basis and applied the correct legal principles.

The appeal was dismissed, as the Master's decision to strike the pleadings to prevent trial delay and prejudice to the respondent was justified.

The landlord brought a motion to lift a Certificate of Stay and dismiss the tenant's application for judicial review of a Landlord and Tenant Board eviction order.

The tenant had sought judicial review instead of appealing the Board's decision.

The Divisional Court lifted the stay, finding it was improperly issued by the Registrar, and quashed the judicial review application because the tenant failed to exhaust his statutory appeal rights under the Residential Tenancies Act and the application lacked merit.

The Registrar appealed a decision of the Licence Appeal Tribunal ordering it to grant the respondent's application for registration as a real estate salesperson.

The Registrar had proposed to refuse registration based on the respondent's past conduct in British Columbia, which included a lifetime suspension as a mortgage sub-broker.

The Divisional Court allowed the appeal, finding that the Tribunal erred in law by applying the 'balance of probabilities' standard of proof instead of the statutory 'reasonable grounds for belief' standard under s. 10(1)(a)(ii) of the Real Estate and Business Brokers Act, 2002.

The matter was remitted to the Tribunal for a new hearing.

The appellants appealed a Master's order dismissing their action for delay at a status hearing and brought a motion to introduce fresh evidence.

The individual appellant had been petitioned into bankruptcy, and the Trustee had sought directions from the Commercial Court regarding the action.

The Master refused to adjourn the status hearing and dismissed the action due to a long pattern of delay and non-compliance with previous orders.

The Divisional Court dismissed the motion to introduce fresh evidence, finding it could have been obtained prior to the hearing with reasonable diligence.

The appeal was also dismissed, as the Master correctly applied the test for dismissal for delay and made no palpable and overriding error.

The applicant sought judicial review of an Information and Privacy Commissioner adjudicator's decision ordering the City of Toronto to disclose portions of a software maintenance log under the Municipal Freedom of Information and Protection of Privacy Act.

The applicant argued the log contained confidential technical information exempt from disclosure under s. 10(1).

The Divisional Court found the adjudicator's decision unreasonable, noting that the adjudicator applied the three-part exemption test inconsistently and failed to provide adequate justification for concluding the information was not supplied by the applicant.

The application was allowed, and the matter was remitted for a new hearing.

Following the dismissal of the respondent's motion for leave to appeal in a family law proceeding, the parties provided written submissions on costs.

The applicant sought partial indemnity costs of $9,280.13, while the respondent argued for $6,500 payable at the end of litigation due to his alleged insolvency.

The court fixed costs at $7,500, finding the requested amount slightly high for a two-hour motion.

The court declined to defer payment, emphasizing that costs should be payable as litigation proceeds to discourage unnecessary motions.

Following the dismissal of the plaintiff's appeal, the parties sought directions regarding costs of prior appearances and the plaintiff's request for free transcripts for a motion for leave to appeal.

The court set a timetable for the defendant to make submissions on costs for prior appearances, noting the plaintiff's limited means.

The court denied the plaintiff's request for free transcripts at public expense, finding that transcripts of oral argument are not necessary for a motion for leave to appeal under the Rules of Civil Procedure.

The plaintiff appealed an order setting aside a previous order that struck out the defendants' statement of defence and counterclaim for failure to pay costs.

The motion judge had invoked the inherent jurisdiction of the Superior Court to set aside the order, citing the negligent representation of the defendants' former lawyer.

The Divisional Court allowed the appeal, finding that the motion judge erred in invoking inherent jurisdiction when the matter should have been governed by Rule 59.06(2)(a).

Furthermore, the defendants were not entitled to relief because they failed to take reasonable steps to protect themselves despite being aware of red flags regarding their lawyer's negligence.

The plaintiff brought a motion to extend the time to appeal a Master's order that refused to restore his motor vehicle accident action to the trial list.

The plaintiff missed the 30-day appeal deadline by a few days due to counsel's miscalculation of the time period.

Despite deficiencies in the plaintiff's supporting affidavits, the court granted the extension of time, finding the delay was short and inadvertent.

The appellant sold a residential property to the respondent.

Prior to closing, the City of Toronto issued an order requiring the appellant to repair a defective retaining wall.

The appellant actively concealed this order from the respondent.

The trial judge awarded the respondent damages for the cost of repairs.

On appeal, the appellant sought to introduce fresh evidence, which the Divisional Court rejected as it did not meet the Palmer test.

The court applied the Housen standard of review, found no palpable and overriding error in the trial judge's findings of fact, and dismissed the appeal.

Following a successful motion by the interveners for a Kelly v. Canada order in an Aboriginal rights judicial review application, the parties could not agree on costs.

The interveners sought costs in the cause fixed at $13,500, arguing the applicants used hardball tactics by threatening substantial indemnity costs.

The court declined to fix costs, noting that threats of substantial indemnity costs are often empty and did not deter the interveners' counsel.

The court ordered costs in the cause, as the appropriate procedure for Aboriginal rights claims remains a work in progress.

The applicant sought judicial review of an arbitration award that ordered her to repay a $209,912 lump sum to her former employer.

The arbitrator found that the applicant breached the confidentiality provision of a grievance settlement agreement by referencing the payment in a self-published book.

The Divisional Court dismissed the application, finding that the applicant lacked standing because the union had not failed in its duty of fair representation.

Furthermore, the court held that the arbitrator reasonably concluded the repayment provision was a valid forfeiture clause, not an unconscionable penalty, and that the applicant had clearly breached the confidentiality terms.

The applicant brought five applications seeking sweeping orders, including quashing judicial appointments, halting police promotions, and challenging the constitutionality of court rules.

The court initiated a review under Rule 2.1.01 of the Rules of Civil Procedure to determine if the applications were frivolous, vexatious, or an abuse of process.

Finding that the applicant lacked both private and public interest standing and that the applications were based on hypothetical scenarios, the court dismissed all five applications as an abuse of process.

During a judicial review proceeding, the court struck the applicant's affidavit from the record.

The court found that the affidavit contained argument and attempted to supplement the record before the Tribunal.

The applicant failed to satisfy the court that the affidavit fell within the exceptional circumstances set out in Keeprite that permit a party to file affidavit evidence to supplement the record.

The appellants appealed an order requiring them to produce an edited copy of a Mary Carter Agreement to the respondent municipality.

The appellants argued that they were only required to disclose the existence of the agreement, not its terms.

The Divisional Court dismissed the appeal, holding that the terms of a Mary Carter Agreement that change the litigation landscape must be disclosed to the court and to non-settling parties to ensure procedural fairness and maintain the integrity of the adversarial process.