ODC 2015

The defendant, AT Plastics Inc., sought leave to appeal to the Divisional Court from an order dismissing its appeal of a Master's discovery ruling.

The Master had ruled that the plaintiff, IPEX Inc., was not required to answer certain questions or produce documents regarding its insurers' involvement in a prior $125 million class action settlement.

The court found reason to doubt the correctness of the decision, noting that the private insurance exception may have been incorrectly applied as a complete bar to obtaining relevant information from the insurers.

Finding the issue to be of general importance, the court granted leave to appeal.

The defendants sought leave to appeal a motion judge's decision refusing a sealing order for Minutes of Settlement from prior litigation between the parties.

The motion judge had found insufficient evidence to justify sealing the documents under the Sierra Club test.

The Divisional Court granted leave to appeal, finding that there was reason to doubt the correctness of the motion judge's decision, particularly in light of Supreme Court of Canada jurisprudence establishing settlement privilege as a class privilege.

The court also granted an interim sealing order pending the appeal and awarded costs to the moving parties.

The moving party (defendant insurer) sought leave to appeal an order dismissing its motion to remove the responding party's (plaintiff's) counsel.

The removal motion was brought because the responding party's counsel retained two experts (a psychologist and an occupational therapist) who had previously been retained by the moving party to assess the responding party's disability claim.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's conclusion that no confidential or litigation-privileged information had been imparted to the experts by the moving party, and that there is no property in an expert witness.

The landlords brought a motion to quash the tenants' appeal of a Landlord and Tenant Board eviction order and to lift the automatic stay.

The tenants had appealed the Board's refusal to grant an adjournment, which they requested because their legal representative was unprepared.

The Divisional Court found the appeal was devoid of merit, raised no question of law, and was an abuse of process intended solely to delay eviction while the tenants continued to pay no rent.

The motion was granted, the appeal was quashed, and the stay was lifted.

The Liquor Control Board of Ontario (LCBO) sought judicial review of an Information and Privacy Commissioner (IPC) Reconsideration Order.

The IPC had ordered the LCBO to cease collecting the personal information of wine club members when processing special orders, finding the practice contravened s. 38(2) of the Freedom of Information and Protection of Privacy Act (FIPPA).

The LCBO argued the IPC's order forced it to violate liquor laws and that the IPC applied an unreasonably strict test for 'necessity' under FIPPA.

The Divisional Court dismissed the application, holding that the IPC's decision was reasonable, the LCBO was exempt from the relevant liquor law prohibitions, and the IPC correctly applied the established legal test for necessity.

The appellant was successful on an appeal from a judgment of the Small Claims Court and sought partial indemnity costs of $19,323.46.

The respondent argued for costs of $5,000 based on proportionality, noting the underlying claim was for $25,000.

The court considered the factors under Rule 57.01 and the principle of proportionality, finding the appellant's claimed costs were higher than what an unsuccessful party might reasonably expect to pay.

The court fixed costs payable to the appellant at $8,000 inclusive of disbursements and HST.

Following the dismissal of the defendant's appeal regarding an abortive condominium unit sale, the successful plaintiff sought costs of the appeal.

The plaintiff claimed substantial indemnity costs of $18,310.80 or partial indemnity costs of $12,135.07.

The court found it unnecessary to determine the scale of costs, as the amounts claimed were excessive for a Small Claims Court appeal.

The court awarded the plaintiff costs fixed at $6,750 all inclusive and ordered the release of funds held in court.

The plaintiffs sought leave to appeal a costs decision where the motion judge ordered each party to bear their own costs of a certification motion due to the novelty of the issues under s. 31(1) of the Class Proceedings Act.

The plaintiffs argued that s. 31(1) should operate asymmetrically in favour of plaintiffs and not shield unsuccessful defendants from costs.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no serious reason to doubt the correctness of the motion judge's decision, as there is no rule requiring s. 31(1) to be applied asymmetrically.

The moving party, a disbarred lawyer, brought a motion for a stay of the enforcement of an order made by an Appeal Panel of the Law Society of Upper Canada pending her appeal to the Divisional Court.

The Appeal Panel had ordered her disbarment for professional misconduct involving the misappropriation of client funds.

Applying the RJR MacDonald test, the court found that while there was a serious issue to be tried, the balance of convenience and the need to protect the reputation of the legal profession weighed against granting a stay.

The motion was dismissed.

The appellant, a union member, appealed a summary judgment decision that dismissed his action challenging two internal union disciplinary convictions.

The Divisional Court found no error in the motion judge's conclusion that the court's jurisdiction over internal union affairs is limited to ensuring compliance with the union constitution, good faith, and natural justice.

The court rejected the appellant's arguments regarding lack of evidence and bias, finding them without merit.

The appeal was dismissed with costs.

The minor appellant brought an application seeking child support from her biological father.

The motion judge held that the appellant was required to have a litigation guardian under Rule 7 of the Rules of Civil Procedure, finding the Family Law Rules did not adequately cover the situation.

On appeal, the Divisional Court held that the Family Law Rules do adequately cover the situation, specifically exempting a child in a child support case from the definition of a 'special party'.

The appeal was allowed, and the order requiring a litigation guardian was set aside.

The applicant sought judicial review of an arbitrator's interim procedural ruling that issued a summons compelling the production of a Wagg brief in a grievance arbitration.

The Divisional Court dismissed the application, holding that it is premature to judicially review interlocutory decisions of administrative decision-makers.

The court found that the arbitrator has the authority to rule on her own jurisdiction and procedural matters, and that fragmenting the arbitration process would frustrate legislative goals.

The applicant union sought judicial review of an arbitration award dismissing a grievance for unjust termination and denial of benefits.

The grievor, who was off work on workers' compensation, claimed ongoing benefits from the predecessor employer after the entire business was sold to a successor employer.

The arbitrator held that the predecessor employer had no ongoing liability under the collective agreement except for crystallized entitlements.

The Divisional Court dismissed the application, finding the arbitrator's conclusion that the successor employer replaced the predecessor employer for ongoing benefits was reasonable and consistent with labour relations jurisprudence.

The defendants sought leave to appeal an interlocutory injunction that enforced a non-competition clause and prevented the individual defendant from working for the corporate defendant for six weeks.

The court dismissed the application for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's application of the RJR-Macdonald test.

The court also noted that the non-competition period had already expired, rendering the matter largely moot and not of public importance.

The applicant was injured in a motor vehicle accident and claimed attendant care and housekeeping benefits for services provided by his former wife, daughter, and a lawn care company.

The insurer denied the claims on the basis that the caregivers did not sustain an 'economic loss' as required by s. 3(7)(e) of the Statutory Accident Benefits Schedule.

A FSCO arbitrator and Director's Delegate upheld the denial, finding that mere loss of time did not constitute an economic loss.

On judicial review, the Divisional Court held that the standard of review was reasonableness, despite the concurrent jurisdiction of courts and arbitrators under the Insurance Act, and found the Delegate's interpretation of 'economic loss' as requiring a financial or pecuniary loss to be reasonable.

The appellants sought to appeal an order directing the sale of a property and the equal division of the net proceeds between the deceased father's estate and the respondent daughter.

The appellants did not object to the sale itself, only the distribution of proceeds.

Counsel sought a ruling on whether the appeal should be heard by the Divisional Court or the Court of Appeal.

The court declined to issue a declaratory order but considered whether to quash the appeal for lack of jurisdiction.

The court held that because the order for sale and distribution was made under the Partition Act, the appeal properly lies to the Divisional Court pursuant to section 7 of that Act.

The applicant sought judicial review of a decision by the Office of the Independent Police Review Director to screen out his complaint regarding alleged police misconduct.

The respondent screened out the complaint under s. 60(2) of the Police Services Act because it was filed more than six months after the events occurred.

The Divisional Court dismissed the application, finding that the respondent's reasons were adequate and its decision not to exercise its discretion to extend the time limit was reasonable given the 40-month delay and the nature of the allegations.

The appellant appealed a Master's order dismissing its action for delay at a Status Hearing under Rule 48.14.

The Divisional Court found that the Master applied the correct two-part test, requiring the appellant to show an acceptable explanation for the delay and that the respondents would suffer no non-compensable prejudice.

The court held that the Master made no error of law, principle, or palpable and overriding error in concluding the appellant failed to meet its burden.

The appeal was dismissed with costs.

The appellants appealed a Small Claims Court decision dismissing their motion to set aside a default judgment in a slip and fall action.

The Deputy Judge had found the appellants failed to establish a meritorious defence and a reasonable explanation for their default.

The Divisional Court allowed the appeal, finding the Deputy Judge misapprehended the evidence regarding the proposed statement of defence and set the bar unreasonably high by requiring the appellants to prove the process server fabricated service.

The default judgment was set aside.

The applicant sought leave to appeal an order staying her Ontario application regarding an estate dispute pending the determination of a related proceeding in California.

The deceased lived in California and executed her will there, but held significant assets in Ontario.

The applicant sought rectification of the will to include a residue clause in her favour, and also claimed the Ontario assets were held in trust for her.

The motion judge stayed the Ontario proceedings, finding that the rectification issue should be determined in California first.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decision and no reason to doubt the correctness of the motion judge's order.