ODC 2014

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that found discrimination in only two of five alleged instances involving Toronto police officers, awarding $13,000 in compensation.

The applicant argued the Tribunal breached procedural fairness by not conducting the hearing in French and erred in finding insufficient evidence of racial profiling.

The Divisional Court dismissed the application, finding the Tribunal's decision reasonable, noting the applicant never requested a French hearing and the Tribunal's factual findings on racial profiling and compensation were entitled to deference.

The plaintiff appealed a Master's order dismissing its breach of contract action for delay at a status hearing under Rule 48.14(13).

The plaintiff had taken no steps to move the action forward for 26 months and provided no explanation for the delay.

The Divisional Court upheld the Master's decision, finding no error in the application of the conjunctive test for dismissal, which requires the plaintiff to demonstrate both an acceptable explanation for the delay and that the defendants would suffer no non-compensable prejudice.

The appeal was dismissed with costs.

The defendants sought leave to appeal an order continuing a Mareva injunction against them.

The injunction was largely based on information obtained by the plaintiff's counsel from the RCMP, which had received it from FINTRAC and US law enforcement.

The defendants argued this disclosure breached privacy laws.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the lower court's conclusion that the RCMP's disclosure of personal information to a private lawyer for a civil fraud action was authorized under the Privacy Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

The court also found the tension between privacy and access to information to be a matter of public importance.

The self-represented plaintiff successfully moved for leave to appeal an order requiring him to pay $30,000 into court as security for costs.

The court then determined the costs of the leave motion.

The defendants argued costs should be in the cause, but the court ordered costs payable forthwith to preserve the plaintiff's access to justice.

Applying the factors under Rule 57.01(1), the court fixed the plaintiff's costs at $4,135 on a partial indemnity scale, valuing his time at $100 per hour.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Division, which upheld a Hearing Panel's finding of professional misconduct and the revocation of his license.

The appellant had acted for investors in 14 real estate transactions involving a fraudulent scheme to mislead institutional lenders into financing the entire purchase price of homes.

The Divisional Court found the Hearing Panel's conclusion that the appellant knowingly assisted in the fraud to be reasonable, noting his reverse-engineering of Statements of Adjustments.

The court also upheld the penalty of revocation, affirming that absent exceptional circumstances, revocation is the presumptive penalty for knowing participation in mortgage fraud to maintain public confidence in the legal profession.

The respondent union brought a motion to strike an affidavit filed by the applicant employers on an application for judicial review of a labour arbitrator's interim award.

The employers brought a cross-motion to strike portions of an affidavit filed by the union, and sought a confidentiality order over certain competition documents if they were retained in the record.

The Divisional Court granted the union's motion, striking the employers' affidavit as it improperly attempted to expand the evidentiary record and advance argument.

The court partially granted the cross-motion, striking the parties' submissions before the arbitrator but retaining communications with the arbitrator and the competition documents.

The court dismissed the request for a confidentiality order, finding the employers failed to establish a sufficiently important commercial interest to displace the open court principle.

The appellant appealed a Small Claims Court order staying its action for unpaid fees against the respondent law firm.

The deputy judge had stayed the action pending the approval of the minor client's settlement under Rule 7.08 of the Rules of Civil Procedure in the Superior Court.

The Divisional Court allowed the appeal, finding that Rule 7.08 is designed to protect litigants under a disability, not lawyers, and does not apply to a contract dispute between a service provider and a law firm.

The stay was vacated and the matter remitted to the Small Claims Court for trial.

Following the dismissal of the appellant's appeal, the successful respondents sought costs.

One respondent failed to bring a costs outline to the hearing as required by Rule 57.01(6) of the Rules of Civil Procedure, and subsequently claimed an amount three times higher than initially estimated.

The court penalized this non-compliance by awarding costs limited to the amount the appellant had estimated in its own costs outline.

The appellant appealed a Master's decision refusing leave to amend a Statement of Claim in a defamation action.

The proposed amendments sought to add specific defamatory words allegedly spoken by the respondent to the police.

The Master had ruled that adding the specific words constituted a new, statute-barred cause of action.

The Divisional Court allowed the appeal, applying a broader, factually-oriented approach to the definition of a 'cause of action'.

The Court found that the amendments were a continuation of the existing claim arising from the same factual matrix, and the respondent was not taken by surprise.

The applicant, East Durham Wind, Inc., sought judicial review of two municipal by-laws enacted by the Municipality of West Grey that prevented the construction of a provincially approved wind energy project.

The applicant held a Renewable Energy Approval (REA) but required municipal entrance and oversize haulage permits.

The Divisional Court found that the municipal by-laws frustrated the purpose of the REA, which was to facilitate renewable energy projects under the Green Energy Act.

The court declared the by-laws inoperative to the extent of the conflict and ordered the municipality to reconsider the permit applications.

The plaintiff in a proposed securities class action sought leave to appeal an interlocutory order that dismissed his motion for preemptive document production under Rule 30.04.

The motions judge had found the production request to be an overbroad fishing expedition prior to cross-examinations on a motion for leave to proceed under the Securities Act.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the original order, which properly prevented premature discovery.

The plaintiff appealed the dismissal of a motion to certify a class action against the Toronto Police Services Board arising from mass detentions during the 2010 G20 summit.

The Divisional Court allowed the appeal, finding that the requirements for certification under the Class Proceedings Act, 1992 were met.

The court certified two separate class actions: one for five location-based subclasses who were allegedly arbitrarily detained by police cordons, and another for individuals held at a specially created detention centre.

The moving party, Windlectric Inc., proposed a wind energy project on Amherst Island.

The Ministry of the Environment deemed the application complete, initiating the technical review phase.

The responding party, an association opposing the project, sought judicial review to quash the completeness determination, arguing the application lacked an adequate emergency response plan.

Windlectric brought a motion to quash the application for judicial review.

The Divisional Court granted the motion, finding that a completeness check is an administrative step, not a statutory power of decision or a matter subject to public law remedies.

The court also held that the application for judicial review was premature, as the administrative process and available appeals had not been exhausted.

The respondent was successful on an appeal from a Small Claims Court decision and sought costs on a full indemnity basis, alleging the appellant engaged in deliberate delay and frivolous litigation.

The appellant argued for partial indemnity costs.

The court rejected the request for full indemnity, finding no reprehensible or egregious conduct by the appellant.

Costs were fixed at $5,500 inclusive of tax and disbursements, taking into account the preparation required for a fresh evidence application.

The defendant accountant sought leave to appeal an order granting the plaintiffs leave to amend their statement of claim to add a new claim against him.

The defendant argued the new claim was statute-barred and that the motion judge erred in leaving the issue of discoverability to the trial judge without requiring sufficient evidence from the plaintiffs.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the jurisprudence establishes that factual disputes regarding discoverability on a Rule 26.01 motion should generally be left to the trial judge.

In a supplemental endorsement to an appeal decision, the appellant sought to correct a calculation error regarding occupation rent.

The court agreed that the original calculation contained a conceptual error by failing to account for daily accrual, and varied the occupation rent award from $23,000 to $24,000.

The court also determined the costs of the appeal and the underlying small claims court trial, awarding partial indemnity costs to the successful parties on their respective issues based on divided success.

Following the dismissal of the applicant's application for judicial review, the court determined the costs to be awarded to the successful respondent university.

The applicant, who was self-represented, sought costs despite being entirely unsuccessful.

The court rejected the applicant's claim and awarded partial indemnity costs to the respondent, reducing the requested amount to reflect a more conventional award for an application of this type.

The respondent was awarded $18,805.89 inclusive of disbursements and HST.

The applicant First Nation sought an interim injunction to prohibit provincial ministries from authorizing a wind farm development on its traditional territory, pending judicial review regarding the Crown's duty to consult.

The court dismissed the motion as premature, finding that the Director had not yet made a decision on whether to issue the renewable energy permit.

Without a decision, the court could not determine if there was a serious issue to be tried or if irreparable harm would occur.

The corporate plaintiff, acting through unrepresented agents, brought multiple motions seeking relief from various orders in a long-standing mortgage default dispute.

The plaintiff sought to appeal a Court of Appeal costs order, extend time to appeal a Master's security for costs order, obtain leave to appeal a judge's order permitting a power of sale, and extend time to oppose confirmation of a Master's reference report.

The Divisional Court dismissed the requests regarding the Court of Appeal order, the security for costs order, and the power of sale order.

The court granted an extension of time to oppose the Master's report, but only on strict terms requiring payment of all outstanding costs and security into court.

The appellant brought a motion to vary the order of the motion judge to grant a stay of the Tribunal's decision pending appeal.

The Divisional Court found that the motion judge offered no reasons regarding irreparable harm and thus his decision was not entitled to deference.

Applying the RJR-MacDonald test, the Court found a serious issue to be tried and that the balance of convenience favoured a stay, noting the member had practiced without restriction since 2005.

The motion was granted and a stay was ordered until the appeal hearing date.