ODC 2015

The defendants sought leave to appeal a costs order of $30,000 awarded against them following their unsuccessful motion to vary a Mareva injunction.

They argued that the motion judge erred by not providing written reasons for the costs award, particularly after receiving their late submissions.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions requiring written reasons for costs awards under section 131 of the Courts of Justice Act, and no reason to doubt the correctness of the order, as the record disclosed a proper basis for the judge's exercise of discretion.

The applicant union sought judicial review of an Ontario Labour Relations Board decision.

The Board found that the respondent employer breached the collective agreement by subcontracting work to a non-unionized contractor, but denied an award of damages because the union suffered no loss, as only a non-union contractor was capable of performing the specialized work.

The Divisional Court dismissed the application, holding that the Board's decision on remedy was owed deference and was not outside the range of reasonable outcomes.

The defendant by counterclaim, ONEnergy Inc., sought leave to appeal an order dismissing its motion to strike the claims asserted against it by the plaintiff by counterclaim.

The underlying claim alleged oppressive conduct and sought a constructive trust over assets transferred to ONEnergy.

The Divisional Court denied leave to appeal, finding no conflicting decisions under Rule 62.02(4)(a) and no reason to doubt the correctness of the order or matters of general importance under Rule 62.02(4)(b).

The plaintiffs appealed an order dismissing their action for delay following a status hearing.

The action arose from alleged property damage during a swimming pool cleaning.

The Divisional Court found that the Master erred in her application of the test for dismissal for delay by failing to consider the overall context of the litigation, incorrectly identifying the period of delay, and mechanically applying a presumption of prejudice.

The appeal was allowed, the dismissal order was set aside, and the action was ordered to proceed to mediation and trial.

The appellant brought a proposed class action against her former lawyer and his firm, alleging they took unauthorized fees, failed to obtain required court approval, and charged illegal interest rates on disbursements under invalid contingency fee agreements.

The motion judge dismissed the certification motion, finding the common issue and preferable procedure criteria were not met.

On appeal, the Divisional Court allowed the appeal and certified the class proceeding, finding the motion judge erred in his interpretation of the Solicitors Act and that a class proceeding was the preferable procedure to address the common issues.

The applicant, an Advanced Care Paramedic, sought judicial review of a medical director's decision to decertify him following an investigation into a call where a patient later died.

The applicant argued he was denied procedural fairness because the medical director did not follow the advisory recommendations of the Paramedic Practice Review Committee and acted as investigator, prosecutor, and decision-maker.

The Divisional Court dismissed the application, finding that the applicant was provided with adequate notice, disclosure, opportunities to respond, and reasons, and that the process did not give rise to a reasonable apprehension of bias.

The appellants appealed a decision of the Surveyor General of Ontario confirming the location of a road allowance under the Surveys Act.

The dispute arose because the confirmed location placed the road allowance on the portion of the appellants' property bordering water, thereby removing their riparian status.

The Divisional Court dismissed the appeal, finding that the Surveyor General had jurisdiction, the fact-finding hearing process was procedurally fair, and her substantive conclusions regarding historical survey evidence and natural boundaries were reasonable and entitled to deference.

The applicant sought leave to appeal an interlocutory order staying his action until he paid outstanding costs orders.

The court reviewed the strict test for leave to appeal under Rule 62.02(4) and found no conflicting decisions or reason to doubt the correctness of the motion judge's order.

The motion judge had properly exercised discretion under Rules 57.03(1) and 60.12, noting the applicant's lack of reasonable explanation for non-payment and the weak merits of the action.

The motion for leave to appeal was dismissed.

The appellants appealed a Small Claims Court judgment ordering them to pay damages for a defectively installed engineered hardwood floor.

The floor buckled because it was glued at the edges without T-moldings, contrary to standard practice, though the respondent had insisted on this installation method.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Justice's conclusions that the appellants bore the contractual risk, that the Consumer Protection Act applied, and that the individual appellant was personally liable under the contract.

The appellant appealed an eviction and rent arrears order made by the Landlord and Tenant Board, as well as a subsequent order upholding it on review.

The appellant argued she was a member of the housing co-operative, not a tenant, and that she had obtained money orders for the rent which were never cashed.

The Divisional Court found that the respondent's agent engaged in sharp practice at the review hearing by misrepresenting the appellant's position and the resolution of the jurisdictional issue.

The Court set aside both orders due to breaches of procedural fairness and natural justice.

The appellant engineering firm appealed a Small Claims Court decision dismissing its claim for $25,000 in unpaid fees for a geotechnical report and awarding costs to the respondents.

The Divisional Court upheld the dismissal of the fee claim, finding no palpable and overriding error in the trial judge's conclusion that the parties had agreed to a capped fee of '+/- $15,000' and that the appellant breached the agreement by refusing to deliver the final report until its higher invoices were paid.

However, the court allowed the appeal regarding costs, finding the trial judge erred in law by awarding costs against the appellant for 'unreasonable behaviour' merely for naming an agent as a defendant, and by awarding legal fees to a self-represented lawyer without evidence of lost income.

The appellant purchased a used vehicle from the respondent at auction on an 'as is' basis.

The next day, the appellant discovered the vehicle was not roadworthy and required significant repairs.

The Small Claims Court dismissed the appellant's claim for damages on the basis that the appellant failed to prove the defect existed at the time of sale and failed to mitigate its damages.

On appeal, the Divisional Court found the trial judge erred by deciding the case on an unpleaded causation issue and by treating a failure to mitigate as a complete bar to recovery.

The appeal was allowed and a new trial ordered.

The applicant, a former NHL referee, sought judicial review of an OLRB decision dismissing his unfair labour practice complaint for undue delay.

The applicant had previously challenged his termination in 2008 without success.

In 2013, he requested severance pay under the collective agreement, which the NHL denied on the basis that he had forfeited it by bringing the 2008 application.

The applicant then filed a new OLRB complaint alleging the denial was an unfair labour practice.

The OLRB dismissed the complaint, finding it crystallized in 2008.

The Divisional Court found the OLRB's decision unreasonable, as the applicant could not have known with certainty in 2008 that the NHL would deny his severance claim in a manner that potentially contravened the Labour Relations Act.

The decision was quashed and remitted to the Board.

The self-represented appellant appealed a Small Claims Court decision dismissing his action against a mortgage lender for incorrect credit reporting as statute-barred.

The Divisional Court allowed the appeal and ordered a new trial, finding that the trial judge failed to consider whether the claim involved a continuous omission, whether separate injuries arose over time, or whether the appellant's physical condition tolled the limitation period under s. 7(1)(a) of the Limitations Act, 2002.

The plaintiff sought leave to appeal an interlocutory order requiring her to post security for costs.

She argued the motions judge failed to properly consider her After the Event (ATE) Legal Expense Insurance as an asset in Ontario.

The Divisional Court dismissed the application, finding the motions judge did consider the ATE insurance as one of several factors and there was no good reason to doubt the correctness of the decision.

The court also declined to admit fresh evidence regarding the ATE insurance on the leave application.

The appellants appealed an order dismissing their motion to stay the respondents' application.

The appellants argued the application was premature because the respondents had not exhausted internal remedies under the non-profit corporation's constitution regarding the termination of their membership.

The Divisional Court agreed, emphasizing the policy against judicial intervention in the internal affairs of non-profit corporations before internal appeals are exhausted.

The appeal was allowed and the respondents' application was stayed.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they discriminated against the respondents on the basis of sex, gender identification, and sexual orientation.

The applicants argued the adjudicator breached procedural fairness by admitting a radio interview, awarded unreasonable damages, and erred in finding personal liability.

The Divisional Court dismissed the application, finding no procedural unfairness as the applicants were aware of the evidence and did not object, and holding that the damages and personal liability findings were reasonable.

The appellants appealed a trial decision regarding a contract for siding installation, arguing the respondent contracted to supply defective siding.

The appellants also brought a motion to admit fresh evidence of recent siding repairs.

The Divisional Court dismissed the motion to admit fresh evidence, finding it was not fresh, reliable, or likely to affect the outcome.

On the merits, the court upheld the trial judge's finding that the contract did not include an express or implied obligation to re-sheath.

The court also upheld the dismissal of the counterclaim due to a lack of evidence regarding the cost to rectify minor Building Code transgressions.

The appeal was dismissed with costs.

The appellant wife appealed a motion judge's decision to enforce an accepted offer to settle an equalization payment for $35,000.

The appellant argued the motion judge erred by enforcing the settlement despite the respondent husband's failure to provide updated financial disclosure for her proposed valuation date.

The Divisional Court dismissed the appeal, finding the motion judge made no error in principle and correctly concluded the appellant had sufficient disclosure to appreciate the compromise she was making when she offered to settle.

The applicants sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Physiotherapists of Ontario, which issued a caution regarding their public communications but did not refer the matter to discipline.

The applicants argued the ICRC exceeded its jurisdiction, exhibited bias, denied procedural fairness, and infringed their Charter rights.

The Divisional Court dismissed the applications, finding the ICRC acted reasonably, did not make improper findings of fact or misconduct, and appropriately balanced Charter values.