ODC 2016

The applicants brought two motions in relation to their application for judicial review of a decision by the Association of Professional Engineers of Ontario Discipline Committee.

The first motion sought to compel the Committee to include a full transcript of the oral evidence in the record of proceedings.

The second motion sought an interim stay of the discipline proceedings pending the judicial review.

The Divisional Court dismissed both motions, finding that the relevant statutes do not oblige the Committee to order and pay for a transcript if one has not been prepared, and that the application for judicial review was premature as the administrative proceedings had not yet concluded.

The defendants sought leave to appeal an order granting certification of a class action regarding allegedly defective hip implants.

The defendants argued that the motion judge's approach to evidence on commonality conflicted with other decisions and that there was good reason to doubt the correctness of the certification order.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's application of the 'some basis in fact' standard for certification.

The applicant sought judicial review of an arbitrator's decision regarding Statutory Accident Benefits without first appealing to the Director's Delegate as required by s. 283(1) of the Insurance Act.

After a previous stay, the applicant's late appeal to the Director's Delegate was dismissed.

The Divisional Court dismissed the current application for judicial review, holding that it lacked jurisdiction to review the arbitrator's decision directly and that the applicant must instead seek judicial review of the Director's Delegate's final decision.

The appellant brought a statutory appeal from a decision of the Assessment Review Board confirming an earlier order that corrected a typographical error in a property assessment.

The parties reached a settlement and requested a consent order under section 134 of the Courts of Justice Act to provide a corrected base rate for the assessment and realty taxes.

The Divisional Court granted the requested order to give effect to the parties' agreement and avoid extending the period of miscalculation.

The appellant appealed an interlocutory order dismissing his motion for partial summary judgment in a wrongful dismissal action.

The Divisional Court dismissed the appeal, finding that the motion judge's decision involved questions of mixed fact and law and was entitled to deference.

The court held that the motion judge appropriately considered the factual disputes and the necessity of a trial for other issues, such as mental distress and defamation, and found no palpable and overriding error.

The self-represented tenant moved for a six-month extension of time to perfect her motion for leave to appeal a Superior Court order and her appeal of a Landlord and Tenant Board eviction order.

The landlord opposed, citing extensive delays and previous extensions.

Applying the test for extending time, the Divisional Court found that while the delay was significant, the tenant's difficult personal circumstances and the lack of severe prejudice to the landlord justified a final extension.

The court granted an extension to September 1, 2016, but dismissed the tenant's requests for consolidation and case management.

The applicant wife sought to serve the respondent husband in China with a family law application.

She obtained an ex parte order validating service without complying with the Hague Service Convention, arguing the Family Law Rules provided a complete code for service.

The husband appealed.

The Divisional Court allowed the appeal, holding that the Family Law Rules do not adequately cover international service and do not clearly rebut the presumption of conformity with international law.

Therefore, Rule 17.05 of the Rules of Civil Procedure applies, making compliance with the Hague Service Convention mandatory for family law proceedings.

The appellant appealed the dismissal of his motion to vary a final child support order.

He argued he had ineffective legal representation, that his adult daughter was no longer a child of the marriage, and that his medical condition prevented him from working.

The Divisional Court dismissed the appeal, finding no evidence of ineffective counsel, no palpable and overriding error in the finding that the daughter remained dependent while completing high school courses, and that the appellant had failed to provide sufficient medical evidence of his inability to work despite prior court orders.

The defendants, three major tobacco manufacturers, appealed a motion judge's decision dismissing their motion for summary judgment.

The plaintiffs, tobacco growers, brought class actions alleging the defendants breached agreements by paying lower export prices for tobacco that was subsequently smuggled back into Canada.

The defendants argued the claims were statute-barred as the plaintiffs knew or ought to have known of the claims more than six years prior.

The motion judge found a genuine issue for trial regarding when the plaintiffs discovered the defendants' complicity in the smuggling.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the defendants' involvement in smuggling was an essential element of the claim and that its discoverability required a trial.

The appellant law firm appealed a summary judgment awarding the respondent, its former legal assistant, $32,500 for wrongful dismissal.

The appellant argued the motion judge erred in proceeding by summary judgment and in finding the respondent reasonably mitigated her damages when she declined a new employment offer following a firm merger.

The Divisional Court dismissed the appeal, finding no genuine issue for trial and no palpable and overriding error in the motion judge's conclusion that the new employment terms were sufficiently negative to justify the respondent's refusal.

The applicant sought leave to appeal an order dismissing his motion for interim possession of an Irish sport horse.

The parties had a dispute over the ownership of the horse, with the applicant claiming sole ownership and the respondent claiming a one-third interest based on a partnership agreement.

The motions judge had dismissed the interim possession motion due to competing credibility issues that needed to be resolved at trial.

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

The court issued a costs endorsement following an appeal.

The respondent on appeal sought costs of $8,218.80.

The court noted that the respondent's offer to settle was reasonable and less favourable than the final outcome.

However, balancing this with the reasonable expectations of the parties and the factors under Rule 57, the court found the claimed amount excessive.

Costs were awarded to the respondent in the amount of $6,500 for fees, plus HST and disbursements.

The appellant appealed a License Appeal Tribunal decision revoking his registration as a gaming supplier under the Gaming Control Act, 1992.

The revocation followed the discovery of counterfeit DVDs and unmarked cigarettes at his convenience store, and his subsequent disregard for an immediate suspension order.

The Divisional Court dismissed the appeal, finding that the tribunal's reasons were adequate and that the penalty of revocation was reasonable given the appellant's pattern of dishonesty and lack of respect for the law.

The appellant mother appealed a trial judgment making her twin children Crown wards without access.

She argued the trial judge erred by failing to consider section 57(5) of the Child and Family Services Act regarding the placement of Aboriginal children, given evidence of the family's self-identified Metis heritage.

The Divisional Court dismissed the appeal, finding that the children did not meet the statutory definition of 'Indian' or 'native person' under the Act, and a constitutional challenge would be required to expand the definition.

The court also upheld the trial judge's finding that placement with the maternal grandmother was not in the children's best interests.

The applicant brought an application for judicial review regarding his employment with the Ontario Provincial Police.

The Divisional Court dismissed the application as an abuse of process, finding that the applicant was attempting to resurrect claims that had been fully resolved by a prior Memorandum of Settlement.

The settlement included a comprehensive release and a complete bar to any further proceedings, including judicial review.

Following a successful appeal from a Small Claims Court decision, the appellant sought costs for both the appeal and the trial below.

The court awarded the appellant $2,500 for the trial, declining to interfere with the quantum determined by the trial judge, but reversing the entitlement.

For the appeal, the court applied the principles from Boucher and Rule 57.01, awarding $2,500 plus HST for fees and $1,071.69 for disbursements, for a total costs award of $6,396.69.

The applicants, trustees of multi-employer pension plans, sought judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of confidential actuarial valuation reports to a representative of a rival union.

The applicants argued that disclosure would cause harm during the construction industry's 'raiding season'.

The Divisional Court allowed the application and set aside the commissioner's order, finding that the commissioner applied an overly burdensome standard of proof and an overly stringent test for causation of harm under s. 17(1) of the Freedom of Information and Protection of Privacy Act.

The court held that the applicants only needed to establish a reasonable expectation of probable harm, which was met given the highly competitive context of union raiding.

The Regional Municipality of Halton appealed an Ontario Municipal Board decision that overturned its new development charges by-law.

The new by-law eliminated distinctions between unit sizes, which the Board found resulted in smaller units unfairly subsidizing larger ones.

The Divisional Court dismissed the appeal, holding that the Board reasonably applied the Development Charges Act and had sufficient evidence to find cross-subsidization.

The Board's decision to reinstate the former by-law's categories was a reasonable exercise of its remedial authority.

The appellant employee was placed on a temporary unpaid layoff and later claimed constructive dismissal.

The motion judge granted summary judgment to the employer, finding the employee had acquiesced to the layoff.

On appeal, the Divisional Court set aside the order, holding that the motion judge erred in law by finding acquiescence without first analyzing the terms of the employment contract to determine if the employer had the right to lay off the employee, as required by the Supreme Court's two-step test in Potter.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order for non-payment of rent.

The tenant argued the Board lacked jurisdiction because his name was misspelled on the application.

The Divisional Court held that the misnomer was a procedural matter, not a question of law, and that the appeal was devoid of merit.

The court quashed the appeal, lifted the automatic stay, and directed the sheriff to enforce the eviction order.