ODC 2016

The appellants appealed a Landlord and Tenant Board review order requiring them to pay the respondent tenant $9,439.13 for a bad faith eviction.

The appellants argued the Board failed to articulate the legal test for bad faith and lacked an evidentiary record.

The Divisional Court dismissed the appeal, finding that the Board's conclusion of bad faith was a factual finding or a finding of mixed fact and law, which is not reviewable under section 210 of the Residential Tenancies Act, as appeals are restricted to questions of law.

The respondent children's aid society brought a motion to dismiss the parents' appeal of a Crown wardship order for delay.

The parents had failed to order transcripts or perfect their appeal within the required timelines under the Family Law Rules, instead engaging in numerous other unsuccessful legal proceedings.

The Divisional Court applied the factors for dismissing a child protection appeal for delay, finding that the parents had no prospect of ordering the transcripts, the delay prejudiced the children's need for permanency, and the appeal lacked merit.

The motion was granted and the appeal was dismissed.

The respondent subcontractor obtained default judgment against the general contractor for unpaid work and subsequently sued the appellant owners for breach of statutory trust under the Construction Lien Act.

The motion judge granted summary judgment against the owners and their directors.

On appeal, the respondent conceded the motion judge erred in finding a subcontractor could be a beneficiary of the owner's trust under s. 7(1).

The respondent alternatively argued the owners were liable under s. 13 for having 'effective control' of the general contractor by paying its invoices.

The Divisional Court rejected this argument, holding that merely paying invoices does not constitute effective control of a corporation's relevant activities.

The appeal was allowed and the claim against the owners dismissed.

The appellant lawyer brought a Small Claims Court action against a former client for unpaid legal fees based on a simple written retainer agreement setting an hourly rate.

The deputy judge stayed the action for want of jurisdiction, relying on binding precedent that the Small Claims Court cannot hear claims based on written fee agreements under the Solicitors Act.

On appeal, the Divisional Court held that a simple hourly retainer agreement does not constitute an extraordinary fee agreement under section 16(1) of the Solicitors Act, and therefore is not subject to the prohibition on actions in section 23.

The appeal was allowed and judgment was granted to the appellant.

The moving parties sought leave to appeal an order that allowed the respondent to amend its statement of defence, added a third party as a necessary party, and dissolved an injunction preventing the respondent from disposing of disputed lands.

The Divisional Court granted leave to appeal specifically on the issue of lifting the injunction, finding good reason to doubt the correctness of that part of the order because the moving party would suffer irreparable harm if the respondent sold the land before the court determined ownership rights.

Leave to appeal the joinder of the third party was denied.

The appellant subcontractor appealed the dismissal of its unjust enrichment claim against the respondent condominium corporation.

The general contractor went bankrupt, leaving the subcontractor unpaid.

The condominium corporation retained the statutory holdback but did not pay the subcontractor, who had not registered a lien.

The Divisional Court allowed the appeal, finding that the trial judge erred in concluding the contract between the owner and general contractor was a juristic reason to deny the claim.

The court held the owner was unjustly enriched by retaining the holdback and awarded the subcontractor the holdback amount.

The appellant contractor appealed the dismissal of its construction lien and quantum meruit claims against the respondent landowner.

The trial judge found the respondent was not an 'owner' under the Construction Lien Act because it did not request the work, which was performed under a separate contract with a third-party purchaser.

The Divisional Court upheld this finding, concluding there was no palpable and overriding error.

The Court also dismissed the unjust enrichment claim, finding that while the trial judge erred in requiring the respondent to have caused the deprivation, the claim still failed because the appellant's contract with the third party constituted a juristic reason for the enrichment.

The moving party university brought a motion to set aside a decision of a single judge of the Divisional Court who refused to strike an affidavit filed by the responding party association on an application for judicial review of a labour arbitration award.

The arbitration upheld the termination of a professor for failing to grade students objectively.

The Divisional Court panel found that the motions judge erred in law by admitting the affidavit, as it did not meet the narrow Keeprite exception for admitting new evidence on judicial review.

The motion was granted and the affidavit was struck in its entirety.

The applicant, an RCMP officer on long-term sick leave, sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB).

The HPARB had upheld a decision by the College of Physicians and Surgeons' Inquiries, Complaints and Reports Committee to take no further action on her complaint against an RCMP Occupational Health Services Officer.

The applicant alleged the physician arbitrarily changed her medical profile from employable with restrictions to unemployable without examining her.

The Divisional Court dismissed the application, finding the HPARB's conclusion that the physician performed a reasonable review of the medical information and exercised appropriate clinical judgment was reasonable.

The applicant sought judicial review of an interlocutory order made at a Small Claims Court settlement conference in a medical negligence action.

The order required the applicant to produce expert reports and directed third-party hospitals and doctors to produce the applicant's medical records.

The Divisional Court held that the Small Claims Court judge had jurisdiction to order the production of expert reports under the Rules of the Small Claims Court.

However, the court concluded that the Small Claims Court lacks jurisdiction to order third-party production of documents.

The application was allowed in part, and the third-party production order was set aside.

The applicants sought judicial review of the Minister of Natural Resources' decision to apply an Interim Enforcement Policy, which permits Aboriginal people to hunt and fish for food, social, and ceremonial purposes, within the 1923 Williams Treaties boundaries.

The Minister brought a motion to quash the application.

The Divisional Court granted the motion, finding that the application of the policy was an exercise of prosecutorial discretion, which is immune from judicial review absent an abuse of process.

The court also held that the policy did not violate the applicants' equality rights under section 15 of the Charter, as it constituted an ameliorative program under section 15(2).

The appellants appealed a Master's order requiring them to pay $49,767.47 into court as security for costs pursuant to Rule 56.01(1)(c).

The appellants argued the Master erred by effectively rescinding an agreement to pay the outstanding costs upon the closing of a real estate transaction and by failing to recognize that a $300,000 deposit held by the respondent was sufficient security.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the Master's exercise of discretion to order security for costs.

The appellant appealed a Small Claims Court decision dismissing his claim against the respondent bank for $4,350 in allegedly unauthorized withdrawals.

The trial judge found, based on video and documentary evidence, that the appellant had made the withdrawals himself.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact and rejecting the appellant's claim that he was denied a fair trial.

The appellant appealed a Small Claims Court decision reinstating a default judgment and garnishment proceedings.

The parties had previously signed Minutes of Settlement requiring the appellant to pay $4,000, with a default clause allowing for a $15,000 judgment if payments were missed.

The appellant stopped payment on the settlement cheques, triggering the default clause.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the lower court's factual findings and holding that the default clause was not unconscionable given that both parties were represented by counsel when the settlement was reached.

The appellants appealed a Superior Court decision that rescinded a building permit issued by the Chief Building Official (CBO) for the construction of a riding arena on a property in the Oak Ridges Moraine.

The appeal judge had found that the arena was not a permitted agricultural use under the zoning by-law and that the CBO failed to consider the Official Plan's major development policies.

The Divisional Court allowed the appeal, holding that the appeal judge erred by applying a correctness standard instead of reasonableness to the CBO's interpretation of the home by-law.

The Court found the CBO's conclusion that the arena was a permitted principal agricultural building was reasonable and correct.

Furthermore, the Court held that conformity with the Official Plan is not 'other applicable law' under the Building Code Act that would justify refusing a permit.

The defendants appealed a motion judge's decision to certify four additional common issues in two related class actions brought by former employees regarding the distribution of a pension plan surplus.

The Divisional Court dismissed the appeal regarding the viability of the cause of action under s. 8(10) of the Pension Benefits Standards Act, 1985, finding it was not plain and obvious that the employer-administrator was not in a conflict of interest.

However, the court allowed the appeal in part to amend the class definition in one of the actions to remove restrictive and vague language.

The appellant appealed a trial judgment that awarded only nominal damages for unpaid inventory after the respondent closed its business.

The trial judge found the respondent breached the contract but concluded damages could not be assessed due to lack of records.

The Divisional Court allowed the appeal, finding the trial judge made a palpable and overriding error by ignoring uncontested evidence regarding the value of the inventory.

The court substituted a damages award of $65,772.42 and awarded the appellant its costs of the trial and appeal.

The plaintiff appealed a motion judge's refusal to approve a class action settlement regarding alleged copyright infringement by the defendant's online legal database.

Following Supreme Court of Canada decisions that significantly enhanced the defendant's fair dealing defence, the parties agreed to a settlement including a cy-près payment and a non-exclusive licence from class members.

The Divisional Court allowed the appeal and approved the settlement, finding the motion judge erred in characterizing the licence as a property right and in elevating the standard for settlement approval by introducing 'institutional fairness' as a new factor.

The applicants (defendants) sought leave to appeal an order that upheld a Master's decision refusing to dismiss the plaintiffs' action for delay.

The Master had found that while there was inordinate and inexcusable delay creating a presumption of prejudice, the plaintiffs successfully rebutted this presumption by showing that documentary evidence had been preserved and a fair trial was still possible.

The Divisional Court found no error of law or principle in the lower court decisions and refused leave to appeal, awarding costs to the respondents.

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

The tenant did not respond or appear.

The court found the tenant's appeal failed to raise any legitimate question of law, was devoid of merit, and was brought merely to delay the proceedings following a history of non-compliance with court orders to pay rent.

The motion was granted, the appeal was quashed, the stay was vacated, and the eviction was ordered to be enforced forthwith.