ODC 2015

The applicant, an OPP officer facing workplace misconduct proceedings, brought an application for judicial review seeking to quash or stay the proceedings.

He argued that the disciplinary process under the Police Services Act violated his rights under sections 7 and 11 of the Charter by failing to provide an independent and unbiased tribunal.

The Divisional Court dismissed the application, finding that section 11 applies only to criminal matters, not employment discipline, and that section 7 is not engaged because there is no constitutional right to practice a profession unfettered by regulatory rules.

The court also declined to order the police association to fund the applicant's legal counsel.

The employer appealed a Small Claims Court judgment awarding the employee damages for constructive dismissal, mental distress caused by workplace harassment, and costs.

The Divisional Court allowed the appeal in part, reducing the constructive dismissal damages from $1,250 to $625 because the employee had worked and been paid for the first week of the two-week notice period.

The court dismissed the appeal regarding mental distress damages, finding the pleadings were sufficient and the evidence supported the award.

The trial judge's costs award was also upheld.

The tenant was successful on a motion for a stay pending appeal and sought costs on a substantial or partial indemnity basis.

The landlord argued for a lower amount.

The court found that substantial indemnity costs were not warranted, as there was no deliberate attempt to frustrate proceedings by fraud or deception.

However, the landlord's failure to comply with a previous order and the introduction of unnecessary complexity were considered.

Applying the factors in Rule 57.01 and the principles of fairness and reasonableness, the court fixed costs payable to the tenant at $7,500 all inclusive.

The appellant mother appealed a Crown wardship order.

At the hearing, a non-party requested to observe the proceedings.

The Divisional Court allowed the non-party to observe, finding the open court principle prevailed, subject to a strict publication ban under the Child and Family Services Act.

The court also granted the appellant's request for an adjournment to retain counsel or prepare, noting insufficient time remained to hear the appeal and fresh evidence motions that day.

The court seized itself of the matter and ordered the appellant to have no contact with the child pending the final determination.

The appellant mother appealed a summary judgment order making her child a Crown ward without access.

She argued that her former counsel provided ineffective representation by failing to request disclosure and an adjournment, and that the motion judge erred in his treatment of access, including sibling access.

The Divisional Court admitted fresh evidence but dismissed the appeal, finding that the fresh evidence would not have changed the outcome of the summary judgment motion and that the motion judge made no errors in his access determination.

The defendants sought leave to appeal an order certifying common issues in a class proceeding regarding a pension plan surplus.

The plaintiffs, former employees who took the commuted value of their pensions, alleged a beneficial interest in the surplus and conflicts of interest by the defendants.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the certification order because established case law holds that members who transfer out their commuted value have no rights to an ongoing plan's surplus.

The court also found the issues to be of broad importance to pension plan administrators.

The moving party sought leave to appeal to the Divisional Court from an order dismissing a motion to enforce a settlement agreement.

The motion judge had dismissed the motion with a single-sentence endorsement.

The court granted leave to appeal, finding that the motion judge's failure to provide adequate reasons constituted an error of law, satisfying the test that there is reason to doubt the correctness of the decision and that the issue is of general importance to the administration of justice.

The moving party, Advanced Framing Corp., sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment in a simplified procedure action regarding a collapsed riding arena and insurance coverage.

The court applied the test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decisions regarding the test for summary judgment and held that the matters at issue did not raise questions of general or public importance.

The motion for leave to appeal was dismissed with costs.

The husband sought leave to appeal an interlocutory family law order that dismissed his motion for temporary sole custody of the parties' special needs children and granted the wife's motion regarding the transfer of the matrimonial home.

The husband argued he was denied procedural fairness and that the motion judge erred in calculating his share of the home's equity.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's order, noting the husband had failed to follow court directions regarding the children's lawyer and that the financial calculations were appropriate.

The appellant appealed a Master's order dismissing his motion to set aside a Registrar's dismissal of his motor vehicle accident action for delay.

The action was dismissed after the appellant's counsel inadvertently missed the deadline to set the matter down for trial.

The Divisional Court allowed the appeal, finding the Master made palpable and overriding errors in assessing the Reid factors and failed to take a contextual approach.

The court noted the appellant's clear intention to proceed, the solicitor's inadvertence due to staff changes, and the lack of prejudice to the respondents.

The dismissal order was set aside and the action revived.

The plaintiff appealed a Small Claims Court decision that awarded it half of its claim for unpaid consulting fees related to SR&ED tax credit applications.

The trial judge had 'split the difference' without making specific findings of breach of contract or negligence, citing a lack of evidence on industry standards.

The Divisional Court allowed the appeal, finding that the trial judge's disposition lacked an evidentiary foundation, and ordered a new trial.

The appellants appealed a decision.

At the hearing, an alleged conflict was raised.

The Divisional Court was unable to ascertain the facts respecting the alleged conflict on the record.

As a result, the appeal was adjourned to be heard on a later date with a newly constituted panel due to scheduling exigencies.

The applicant sought judicial review of a decision by the Assessment Review Board changing the tax class of its property from farm land to vacant commercial land.

The respondent moved to dismiss the application on the basis that the applicant failed to exhaust its statutory right of appeal under s. 43.1 of the Assessment Act.

The Divisional Court agreed, declining to exercise its discretion to hear the judicial review because the applicant bypassed the statutory leave to appeal process.

The application was dismissed.

The self-represented appellant sought costs of $9,000 following an appeal, which included fees for counsel who assisted in preparing materials.

The respondent argued for costs of $2,728 on a partial indemnity basis, noting its success on a motion to admit fresh evidence.

The Divisional Court awarded the appellant $3,000 inclusive of disbursements and HST, compensating for disbursements and partial indemnity for counsel assistance, offset by the respondent's successful motion.

The appellant appealed a Small Claims Court decision awarding the respondent $25,000 for personal property left in her possession after their common-law relationship ended.

The Divisional Court found the Deputy Judge erred by misapprehending an acknowledgment of ownership as an acknowledgment of value, and by failing to consider the appellant's challenge to the respondent's valuation.

The Court also admitted fresh evidence, including an appraisal report and medical records, finding the appellant's self-represented status and medical impediments excused her inability to present the evidence at trial.

The appeal was allowed and a new trial ordered.

The appellant Minister appealed a motion judge's order regarding the interpretation of a previous costs order made by a deceased judge.

The previous order required the respondent to pay costs to the Minister from proceeds received from her insurer.

The motion judge interpreted this to mean costs were only payable if the matter proceeded to trial, not if it settled.

The Divisional Court allowed the appeal, finding no logical basis for the motion judge's interpretation, and ordered the respondent to pay the costs from her settlement proceeds.

The applicant sought judicial review of the Chief Coroner's decision not to hold a discretionary inquest into the death of his son, who died by suicide while on constant watch in a hospital psychiatric department.

The applicant argued the decision was unreasonable and that the Chief Coroner's remarks about the efficacy of lay juries raised a reasonable apprehension of bias.

The Divisional Court dismissed the application, finding the Chief Coroner reasonably concluded that the hospital had already addressed the specific contributors to the death and there was no evidence of systemic failure.

The court also held the Chief Coroner's remarks represented professional judgment and did not raise a reasonable apprehension of bias.

The appellant lawyer appealed findings of professional misconduct and a six-month suspension imposed by the Law Society of Upper Canada.

The misconduct arose from his representation of a severely injured client and the client's spouse amidst family conflicts over care and property.

The lawyer was found to have acted in a conflict of interest, breached court orders, commissioned a misleading affidavit, and delayed a settlement to prevent a Law Society complaint.

The Divisional Court dismissed the appeal, finding the Law Society Appeal Panel's decision reasonable and the penalty well within the appropriate range for the serious departure from professional standards.

The appellant parents appealed a summary judgment order making their child a Crown ward without access for the purpose of adoption.

The parents argued that the motion judge erred by failing to recognize a gap in the children's aid society's case regarding available support programs, failing to provide adequate reasons, and improperly admitting a parenting capacity assessment.

The Divisional Court dismissed the appeal, finding that the parents failed to present a comprehensive plan of care to address their need for 24-hour supervision.

The court held that the motion judge's reasons adequately explained why the child would not be safe in the parents' care and why access should be terminated, and that the assessment was properly admitted.

The appellant tenant appealed a decision of the Landlord and Tenant Board granting the respondent landlord an above-guideline rent increase based on capital expenditures for balcony repairs.

The tenant argued the Board erred in law by failing to properly determine if the expenditures were necessary to restore physical integrity, failing to provide adequate analysis, and failing to apply issue estoppel based on a previous 2012 application.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable, as it properly applied the legal test, made factual findings that the work was different from the previous application, and adequately supported its conclusion that the repairs were necessary eligible capital expenditures.