ODC 2014

The appellants appealed a jury verdict that assessed their damages from a motor vehicle accident at zero dollars.

The self-represented appellant argued the trial judge failed to provide adequate assistance, specifically regarding the exclusion of medical consultation notes and limitations on expert testimony due to non-compliance with the Rules of Civil Procedure.

The Divisional Court dismissed the appeal, finding the trial judge reasonably balanced his duty to assist the unrepresented litigant with the need to ensure fairness to the defendants.

The Toronto District School Board appealed a decision dismissing its appeal from the City of Toronto's Chief Building Official.

The CBO had determined that a zoning by-law exemption for school board lands used 'only for teaching or instructional purposes' did not permit a private company to operate a commercial sports facility on school property.

The Divisional Court found that while the application judge erred in interpreting the by-law to restrict the 'user' rather than the 'use', the CBO's conclusion was reasonable.

The proposed private recreational use was not 'only' for teaching or instructional purposes, nor was it an 'accessory use' naturally and normally incidental to school use.

The appeal was dismissed.

The interveners in a judicial review application concerning the Crown's duty to consult brought a motion for a Kelly v. Canada Order to add 28 Indian Bands as parties.

The applicants opposed the motion, arguing it was offensive to Aboriginal custom and unnecessary as they were the true rights holders.

The court granted the motion, finding that adding the bands as party respondents was necessary to ensure all potential rights holders were before the court and to avoid the risk of multiple proceedings and inconsistent results.

The appellant sought leave to appeal a decision of the Assessment Review Board regarding the current value assessment of its independent grocery store.

The appellant argued the Board erred in law by restricting its comparable properties to only the 'most similar' independent grocery stores, rather than considering all 'similar' grocery stores in the vicinity as required by the Assessment Act.

The court found there was good reason to doubt the correctness of the Board's decision, as limiting comparables to near equivalency could constitute a methodological error of law rather than a mere factual finding.

Leave to appeal was granted.

The appellants, an engineer and his company, appealed a decision of the Discipline Committee of the Association of Professional Engineers of Ontario finding them guilty of professional misconduct and negligence in the design of a manure storage tank.

The Divisional Court allowed the appeal, finding that the Discipline Committee breached procedural fairness by adjudicating an allegation regarding a 'cut-out' in the tank wall without providing proper notice to the appellants.

Furthermore, the Court held that the Discipline Committee erred by relying on expert evidence that it had previously ruled inadmissible regarding the standard of practice.

The findings of professional misconduct were set aside, and the matter was remitted for a re-hearing before a differently constituted panel.

The appellant appealed a Small Claims Court decision awarding the respondent $7,500 in damages for defamation.

The appellant, president of a housing co-operative, had sent an email to board members accusing the respondent of theft after she allegedly took a confidential document from a meeting.

The trial judge found the statement defamatory and concluded the appellant acted with malice, defeating his defence of qualified privilege.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's determination that the appellant lacked an honest belief in the truth of his statement and acted with malice.

The appellant franchisor appealed a Small Claims Court judgment awarding the respondent franchisee a return of their initial franchise fee.

The Deputy Judge had found that the franchise agreement was frustrated because the franchisor failed to secure a lease for the specific location contemplated in the agreement.

On appeal, the Divisional Court upheld the decision, finding no palpable and overriding error in the application of the doctrine of frustration.

The court also rejected the argument that frustration could not be found because it was not explicitly pleaded, noting that strict pleading standards do not apply in Small Claims Court.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld the College of Physicians and Surgeons' decision to take no action on her complaint against a physician.

The applicant alleged the tribunal failed to address all her allegations.

The Divisional Court dismissed the application, finding that the tribunal was not required to address every allegation and that its decision was reasonable based on the evidence.

The appellant sought out-of-country funding for surgery to repair a medical condition, arguing that a delay in Ontario would cause irreversible tissue damage.

The Health Services Appeal and Review Board denied the request, and the appellant appealed to the Divisional Court.

The appellant argued the Board lost jurisdiction by reconstituting the hearing panel and ignored medical evidence regarding tissue damage.

The Divisional Court dismissed the appeal, finding no procedural unfairness in the panel reconstitution and concluding the Board's decision on the medical evidence was reasonable.

The applicants sought urgent judicial review of an Ontario Securities Commission decision denying their request to adjourn a hearing.

The adjournment was requested after the applicants' expert lost her work product due to a computer error.

The Divisional Court dismissed the application as premature, applying the general rule that procedural decisions of administrative tribunals should not be reviewed prior to the final determination of the proceeding unless there is a prospect of real unfairness amounting to a denial of natural justice.

The Court found the Commission's conclusion that the expert could be adequately prepared was reasonable.

The defendant sought leave to appeal an interlocutory order that permitted a student-at-law to be present as a passive observer during a defence in-home future care costs assessment of the plaintiff, and that denied the defence expert's request to conduct a functional capacity evaluation.

The Divisional Court dismissed the motion for leave to appeal, finding that the motions judge properly exercised his discretion under Rule 33.

The court held there were no conflicting decisions on the matter and no reason to doubt the correctness of the order to warrant granting leave under Rule 62.02(4).

The appellant client appealed a Small Claims Court judgment ordering him to pay outstanding legal fees to the respondent lawyer.

The appellant argued the trial judge made several errors of law, including failing to consider the factors for assessing a lawyer's account and making improper evidentiary rulings.

The Divisional Court dismissed the appeal, finding no errors of law and concluding that the trial judge's findings of fact did not amount to palpable and overriding errors.

The appellant appealed a decision of the Criminal Injuries Compensation Board awarding compensation to her former son-in-law for injuries she caused him.

The appellant argued she was denied procedural fairness because the Board did not notify her of the hearing, despite her having returned a form explicitly checking a box to indicate she did not want notice.

She claimed the Board should have warned her of the potential impact of the hearing on a related civil action.

The Divisional Court dismissed the appeal, finding the appellant clearly waived her right to notice and the Board had no duty to provide legal advice regarding collateral civil proceedings.

The plaintiff sought leave to appeal an interlocutory order requiring it to post $140,000 in security for costs before trial.

The plaintiff argued there were conflicting decisions regarding the test for initiating a motion after a matter is set down for trial under Rule 48.01(1).

The Divisional Court dismissed the motion, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, noting the plaintiff had conceded it could post the security without prejudice.

Following the dismissal of the applicant's application for judicial review, the court received written costs submissions from the respondent Ministry.

The applicant did not provide submissions.

The court found the Ministry's requested costs to be fair and reasonable, awarding partial indemnity costs in the amount of $6,275.

The appellant issued two claims in Small Claims Court against her former criminal defence lawyer for professional negligence.

A deputy judge consolidated the claims to prevent claim splitting, limiting the total claim to $25,000.

The appellant's motion to set aside the consolidation was dismissed by another deputy judge.

The appellant appealed both orders to the Divisional Court.

The respondent moved to quash the appeal.

The Divisional Court quashed the appeal, holding that it has no jurisdiction to hear appeals from interlocutory orders of the Small Claims Court.

The appellants appealed a Master's order striking their statement of defence and counterclaim for failing to comply with a prior order to answer discovery refusals and produce records.

The Divisional Court allowed the appeal, finding the Master erred in law by stating she had 'no choice' but to strike the pleadings, thereby failing to exercise her discretion.

Conducting a de novo review, the Court held that striking pleadings is an extreme remedy of last resort and granted the appellants a 'last chance' order to comply within a short timeframe.

Following the dismissal of her application for judicial review, the applicant opposed an award of costs, arguing the case involved novel human rights issues of public importance.

The Divisional Court rejected this argument, finding the proceeding was a quest for personal vindication arising from fractious collective bargaining, not a public interest matter.

The court awarded the successful respondents $7,500 in costs, discounting their requested amount of $15,000 to exclude expenses related to the involvement of three intervenors.

Following a successful application for judicial review where the court found a denial of procedural fairness by the Town, the applicant sought costs on a full indemnity basis for the application and several related motions.

The Divisional Court held it lacked jurisdiction to award costs for the related motions or to set aside a previous costs order.

However, the court awarded the applicant substantial indemnity costs of $44,329.66 for the judicial review application, citing the Town's conduct that unnecessarily lengthened the proceeding and the denial of procedural fairness.

The appellant appealed a Small Claims Court decision dismissing her claim for negligent issuance of a building permit as statute-barred.

The appellant sought to introduce fresh evidence on appeal, arguing she did not discover the claim until receiving freedom of information documents.

The Divisional Court denied the motion to introduce fresh evidence, finding it did not meet the requisite test.

The court upheld the trial judge's finding that the claim was issued beyond the two-year limitation period and rejected arguments of procedural unfairness.