ODC 2016

The Law Society appealed a decision of the Appeal Division of the Law Society Tribunal ordering a new hearing due to a lack of disclosure.

The respondent lawyer, facing professional misconduct allegations related to real estate fraud, sought disclosure of the files of other lawyers involved in the transactions.

The Divisional Court dismissed the appeal, finding that s. 49.12 of the Law Society Act does not create a statutory privilege barring disclosure, but rather a confidentiality rule with exceptions for conduct proceedings.

The Court affirmed that the Stinchcombe disclosure regime applies, requiring the Law Society to disclose potentially relevant material from other lawyers' files, subject to resolving any solicitor-client privilege claims.

The tenant brought an urgent motion for a stay of enforcement of an eviction order issued by the Landlord and Tenant Board.

His previous appeal of the Board's order had been quashed for being devoid of merit.

The tenant sought a stay pending a motion to vary the order quashing his appeal.

The court applied the RJR-MacDonald test and found the tenant failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured him, noting he had not paid rent since September 2015.

The motion for a stay was dismissed with costs awarded to the landlord.

The applicant employer sought judicial review of a labour arbitrator's decision that mitigated the termination of an employee who engaged in a sophisticated scheme of job-related thefts.

The arbitrator had reinstated the employee for the purpose of applying for long-term disability benefits, finding that the employee's undiagnosed PTSD and depression 'clouded' the thefts.

The Divisional Court allowed the application and quashed the award, holding that the arbitrator's decision was unreasonable because it relied on contradictory findings regarding the medical evidence and failed to establish a clear nexus between the PTSD and the premeditated thefts.

The self-represented moving party sought leave to appeal from two interlocutory orders that dismissed her motion regarding mandatory mediation and stayed her action pending payment of outstanding costs and mediator fees.

The moving party had previously failed to attend mediation and had multiple unpaid cost awards against her.

The Divisional Court denied her request for an adjournment and dismissed the motion for leave to appeal, finding she failed to establish either a conflicting decision or reason to doubt the correctness of the motion judge's orders under Rule 62.02(4).

The appellant appealed a Small Claims Court decision awarding the respondent $5,000 in general damages and $3,000 in punitive damages following an altercation at a hockey arena.

The appellant argued the trial judge erred in finding he acted out of revenge, in rejecting his claim of self-defence, and in the damages awarded.

The Divisional Court dismissed the appeal, finding ample evidence to support the trial judge's conclusions that the appellant was motivated by revenge and was not acting in self-defence, and that the damages awards were appropriate and supported by the evidence.

The appellant appealed a Small Claims Court decision dismissing her claim for damages for constructive dismissal and unpaid wages against her former employer.

The trial judge found she was constructively dismissed but that her employment contract governed the notice period, which she had received.

The trial judge also found she had abandoned her claims for unpaid wages during the trial.

The Divisional Court found no palpable and overriding error in the trial judge's conclusion that the appellant had abandoned her claims for specific monetary compensation, as she presented no documentary quantification and explicitly stated she was not expecting compensation for them.

The appeal was dismissed.

The appellants appealed a Small Claims Court judgment awarding the respondent $25,000 for breach of contract.

The central issue was the interpretation of a termination provision in their memorandum of understanding, which required one year's notice.

The appellants argued the notice was conditional on an agreement with the Toronto District School Board (TDSB).

The Divisional Court upheld the Deputy Judge's finding that the one-year notice requirement was not a condition precedent dependent on a TDSB agreement, but rather a commercially reasonable term.

The appeal was dismissed.

The Director of the Ontario Racing Commission sought judicial review of a Panel decision that exonerated a horse trainer from an absolute liability offence based on a due diligence defence.

The horse had tested positive for a prohibited drug after winning a race.

The Divisional Court held that the Panel's decision was unreasonable because a standard of care defence is not available for an absolute liability offence.

The Court set aside the Panel's decision, restored the original finding of a rule violation, and exercised its jurisdiction to impose a penalty of no fine and no suspension, leaving the horse's disqualification intact.

The plaintiff buyer failed to close a $75 million commercial real estate transaction and subsequently registered a certificate of pending litigation (CPL) against the property.

A Master ordered the CPL discharged and the buyer's deposits forfeited.

The buyer appealed and brought a motion to stay the Master's order pending appeal, while the sellers brought a cross-motion for security for costs.

The Divisional Court dismissed the motion for a stay, finding the appeal devoid of merit as the buyer had failed to secure financing and the sellers had not waived the 'time is of the essence' clause.

The cross-motion for security for costs was granted.

The applicants brought a motion to extend the time to deliver a Notice of Appeal and for an interim order that the respondents pay $10 million US pending a reference hearing.

The court dismissed the motion to extend time, finding the applicants filed no evidence to satisfy the test for an extension.

The court also dismissed the request for an interim payment, noting that the applicant had previously sought the same relief multiple times, which had been dismissed as an abuse of process, and that the applicant was subject to an order requiring leave to bring such motions, which had not been obtained.

The applicant sought leave to appeal an interlocutory decision of the Ontario Municipal Board (OMB) which allowed the respondent developer to amend conditions of a 1996 zoning approval for a trailer park.

The applicant argued the OMB failed to properly apply Rule 106 of its Rules of Practice and Procedure by not reopening the entire hearing after 20 years had passed.

The Divisional Court dismissed the motion for leave to appeal, finding that the OMB's interpretation of its own procedural rules was reasonable, the decision was based on evidence, and the matter did not raise a question of law of sufficient general or public importance.

The Canadian Doctors of Audiology Association brought a motion for leave to intervene in an appeal concerning a finding of professional misconduct against an audiologist for using the title 'Doctor'.

The proposed intervenor sought to support the appellant's constitutional challenge to s. 33 of the Regulated Health Professions Act, 1991.

The court dismissed the motion, finding that the application was brought very late, the proposed argument substantially echoed the appellant's argument, and the intervention would not make a useful and distinct contribution sufficient to justify disrupting the scheduled appeal.

The appellants appealed a Small Claims Court decision ordering them to repay a $22,080 loan to the respondent.

The loan originated from a Mutual Help Club organized by the respondent.

The appellants argued the trial judge erred by effectively amending the pleadings to treat the claim as a personal loan rather than a club debt.

The Divisional Court dismissed the appeal, finding the trial judge made no palpable and overriding error and properly concluded the respondent advanced the funds in her personal capacity.

The appellant appealed a decision of the Law Society Appeal Panel regarding a costs award made by a Hearing Panel that had recused itself.

The Divisional Court applied a reasonableness standard of review to the Appeal Panel's decision.

The Court dismissed most of the appellant's arguments, finding the Appeal Panel reasonably concluded that both parties were at fault for failing to raise a conflict of interest issue earlier, and that success was divided on a bias motion.

However, the Court reduced the costs awarded to the Law Society for a motion to exclude evidence by 50%, as the parties agreed the motion took less time than the Appeal Panel had estimated.

The appeal was otherwise dismissed.

The appellant appealed a decision of the Assessment Review Board regarding the assessment of a commercial office building.

The Board had reduced the property's current value to achieve equity with similar lands in the vicinity pursuant to s. 44(3)(b) of the Assessment Act.

The Divisional Court determined that the appropriate standard of review for the Board's interpretation of its home statute is reasonableness, departing from older jurisprudence that applied correctness.

The Court found the Board's methodology and interpretation were reasonable given the evidence presented, and dismissed the appeal.

The respondent sought costs, including costs against the applicant's counsel personally, following the dismissal of the applicant's unmeritorious claim.

The Divisional Court declined to order costs against counsel, noting that such awards are to be rare.

The court fixed global costs, including costs of the initial application, motion for leave, appeal, and the present motion, at $22,500 payable by the applicant's estate.

A dissenting judge would have awarded $45,000 on a substantial indemnity basis jointly and severally against the estate and the applicant's counsel.

The defendant sought leave to appeal an order dismissing his motion to set aside a worldwide Mareva injunction.

The injunction was originally granted ex parte in an action alleging the defendant perpetrated a massive fraud while CEO of Sino-Forest Corporation.

The Divisional Court denied leave on the issues of whether there was a prima facie case of fraud and risk of asset dissipation.

However, the court granted leave to appeal on three questions: whether an Ontario court can grant a Mareva injunction when the defendant has no assets in the jurisdiction, whether the undertaking as to damages provided by a non-party was sufficient, and whether that undertaking adequately protected the defendant's costs.

The appellant appealed a Small Claims Court decision finding it liable under the Occupiers' Liability Act for injuries the respondent sustained after tripping on an exterior mat at a hotel.

The Divisional Court allowed the appeal, finding the trial judge made palpable and overriding errors by imposing a higher standard of care than the law requires and by concluding the mat was a hazard without sufficient evidentiary basis.

The action was dismissed.

The respondent sought partial indemnity costs of $6,156.71 following the dismissal of the appellant's motion for a stay.

The appellant argued that as a public interest litigant, no costs should be awarded, noting it had ultimately obtained the interim remedy from the Environmental Review Tribunal.

The court agreed with the appellant and ordered no costs for the motion.

The appellants appealed a Master's order refusing to set aside a Registrar's order that dismissed their motor vehicle accident action for delay.

The action had been dismissed twice due to the appellants' former counsel's failure to advance the file.

The Divisional Court found no palpable and overriding error in the Master's application of the Reid factors, noting the appellants failed to adequately explain the delay and the respondents suffered prejudice.

The appeal was dismissed, and leave to appeal the Master's costs order was refused.