ODC 2016

The mother brought a motion to stay a contempt order that granted the father make-up access time after she unilaterally suspended his access to their children.

The court first determined that jurisdiction for the appeal of the final contempt order lies with the Court of Appeal, not the Divisional Court.

In the alternative, applying the three-part test for a stay pending appeal, the court found the mother failed to establish that the contempt order was wrong, that the children would suffer irreparable harm, or that the balance of convenience favoured a stay.

The motion for a stay was dismissed.

The appellant bank appealed an interlocutory order adjourning its summary judgment motion.

The motion judge had adjourned the motion to hear oral evidence regarding whether the bank knew or should have known that the respondent's brother was using a line of credit, secured by the respondent's condominium, for his own benefit contrary to a trust agreement.

The appellant argued that under Hryniak v. Mauldin, the motion judge was required to determine if there was a genuine issue for trial based solely on the paper record before ordering oral evidence.

The Divisional Court dismissed the appeal, holding that Hryniak does not restrict a motion judge's inherent equitable jurisdiction to adjourn a motion and hear oral evidence to determine if a genuine issue for trial exists.

The appellant, an IT contractor, appealed a Small Claims Court decision dismissing its claim for unpaid fees and expenses against the respondent placement agency.

The parties' contract contained a 'pay when paid' clause.

The third-party client terminated the appellant's services and refused to pay outstanding invoices after discovering the appellant's principal had undisclosed U.S. and Ontario securities convictions for insider trading.

The Divisional Court dismissed the appeal, finding the trial judge made no palpable and overriding error in concluding that the respondent had made good faith efforts to collect the unpaid amounts before reasonably abandoning the collection efforts due to the appellant's material non-disclosure of penal offences.

The appellant appealed an order dismissing its motion to oppose the confirmation of a Master's report.

The Master had found the appellant liable for the balance of an unpaid account for garage roof repairs under a fixed price contract.

The Divisional Court dismissed the appeal, finding that the Master's conclusions regarding the existence of a fixed price contract and privity of contract were supported by the evidence and contained no palpable and overriding error.

The appellant, a foreign-trained engineer, appealed a decision of the Registration Committee of the Association of Professional Engineers of Ontario refusing to issue him a licence.

The Committee found he did not meet the requirement of having at least 12 months of supervised engineering experience in Canada.

The Divisional Court dismissed the appeal, finding that the Committee correctly rejected the appellant's argument that the licensing requirement violated his s. 2(d) Charter right to freedom of association.

The Court also held that the Committee's factual findings regarding his lack of Canadian engineering experience and its discretionary decision to exclude hearsay reference letters were reasonable.

The appellant mother appealed orders determining that Ontario had jurisdiction to deal with custody and access of the parties' child under the Children's Law Reform Act.

The family had moved to Hawaii in 2010, but the child returned to Ontario for the summer.

The Divisional Court found the motion judge erred in concluding the child was habitually resident in Ontario and that the child would suffer serious harm if returned to Hawaii.

The appeal was allowed, and the orders were set aside, as Ontario lacked jurisdiction.

The moving party brought a motion to quash the responding party's appeal of a Small Claims Court decision that refused a trial adjournment.

The responding party argued the refusal amounted to a denial of natural justice and deprived it of counsel.

The Divisional Court dismissed the motion to quash, finding that the appeal was not manifestly devoid of merit, as the unusual circumstances surrounding the adjournment request warranted consideration on appeal.

Following a judicial review application where the court found a reasonable apprehension of bias by the Child and Family Services Review Board, the parties sought costs against the tribunal for both the tribunal hearing and the judicial review.

The Divisional Court held it lacked jurisdiction under section 131 of the Courts of Justice Act to award costs for the proceeding before the administrative tribunal.

Furthermore, the court declined to award costs of the judicial review application against the tribunal, finding its participation was not adversarial and its conduct did not rise to the exceptional level required to justify such an award.

The self-represented parties' alternative claim for costs against the children's aid society was also dismissed as they were unsuccessful in the application.

The defendants sought leave to appeal an order dismissing their motions to strike the plaintiff's statement of claim.

The plaintiff, a foster parent, alleged the defendants failed to disclose material information about a foster child who subsequently assaulted her.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's decision that it was not plain and obvious the claims would fail.

The applicant was unsuccessful on a motion for leave to appeal.

The respondent sought costs of the motion on a substantial or partial indemnity basis, while the applicant argued no costs should be ordered.

The court found that the issues did not transcend the interest of the parties and a costs order was warranted under the Courts of Justice Act and applicable rules.

The court awarded costs to the respondent fixed at $2,500 on a partial indemnity basis.

The tenant appealed a Landlord and Tenant Board order evicting her for repeatedly denying the landlord access to her rental unit to take photographs for the purpose of selling the property.

The Divisional Court held that the Board erred in law by finding that section 27(1)(5) of the Residential Tenancies Act permitted entry for this purpose.

The Court concluded that absent a specific term in the lease or the tenant's consent, a landlord has no statutory authority to enter a rental unit to take photographs for marketing purposes, as doing so infringes on the tenant's privacy interests.

The eviction order was set aside.

The appellants appealed a Small Claims Court order refusing to set aside the dismissal of their action for delay.

The action, based on a promissory note, was dismissed after the appellants failed to note the respondent in default and subsequently failed to attend a rescheduled motion.

The Divisional Court found no error in the Deputy Judge's application of the four-part contextual test, noting the appellants failed to adequately explain a 10.5-month delay in bringing the motion to set aside the dismissal.

The appeal was dismissed with costs.

The moving party sought leave to appeal an interim order that reduced the responding party's child and spousal support obligations based on a material change in circumstances following his loss of employment.

The moving party argued the motions judge erred in finding a material change and failing to impute income.

The Divisional Court dismissed the motion for leave to appeal and the motion for a stay, finding no conflicting decisions, no good reason to doubt the correctness of the interim order, and noting that the issue of imputing income was not raised before the motions judge.

The appellant appealed a master's order dismissing her action for failing to comply with interlocutory orders and pay costs.

The appellant argued she did not attend the motion because she believed her pending motion for reconsideration at the Supreme Court of Canada operated as an automatic stay.

The Divisional Court held that a pending motion for reconsideration does not constitute a stay or prevent the court from making decisions.

Finding no palpable and overriding error or error of law, the court dismissed the appeal.

The applicant sought urgent judicial review of an arbitrator's interim order relieving his counsel from acting in an upcoming Financial Services Commission of Ontario arbitration due to a breakdown in the solicitor-client relationship.

The Divisional Court dismissed the application as premature, finding that the applicant had not exhausted internal appeal procedures under the Insurance Act and the Dispute Resolution Practice Code.

The court found no exceptional circumstances or prospect of real unfairness that would justify fragmenting the proceedings and intervening at an interim stage.

The defendant corporation moved for leave to appeal a decision granting the plaintiff leave to commence a secondary market securities misrepresentation action against it.

The motion judge had dismissed the action against the individual directors and officers, finding they established a reasonable investigation defence, but allowed the action against the corporation to proceed based on a restatement of financial results.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order because the corporate identification doctrine suggests the corporation should also benefit from the reasonable investigation defence established by its directing minds.

The applicant sought judicial review of an Information and Privacy Commissioner's order requiring the disclosure of Change Notices and edited Detailed Feasibility Notices related to a government contract.

The applicant argued the records contained confidential commercial information and their disclosure would cause competitive harm.

The Divisional Court dismissed the application, finding the Commissioner reasonably concluded that the Change Notices were negotiated rather than 'supplied' by the applicant, and that the applicant failed to provide detailed and convincing evidence that disclosure of the edited Detailed Feasibility Notices would result in a reasonable expectation of probable harm.

The appellants, heating and air conditioning businesses, sued the Better Business Bureau (BBB) for defamation after the BBB assigned them a 'D-' rating on its website.

The trial judge dismissed the action, finding the rating was not defamatory and was protected by fair comment and qualified privilege.

On appeal, the Divisional Court held that the trial judge erred in law by failing to determine the plain and ordinary meaning of the rating, which was clearly defamatory.

The court also found that the BBB did not enjoy qualified privilege for general ratings published to the public.

The appeal was allowed, the trial judgment set aside, and the matter remitted for a new trial on the issues of fair comment, malice, and damages.

The appellants appealed a trial judgment awarding the respondent subcontractor $96,580.24 for breach of contract in a construction dispute.

The appellants argued the trial judge erred by allowing the respondent to split its case, making palpable and overriding errors of fact regarding construction delays, applying inconsistent evidentiary standards, misinterpreting a consent order, and demonstrating a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding no merit to the case splitting argument, deferring to the trial judge's credibility findings on the delay and evidentiary issues, and concluding there was no basis for the bias claim.

The appellant lawyer was investigated by the Law Society for alleged involvement in mortgage fraud.

After a five-year delay, the Hearing Panel dismissed the disciplinary application, finding the delay caused the appellant serious psychological harm.

The Appeal Panel overturned this decision, finding the Hearing Panel misapprehended evidence regarding the appellant's cross-examination and applied the wrong legal test.

On appeal to the Divisional Court, the court restored the Hearing Panel's decision, holding that the Appeal Panel failed to show deference and that the unchallenged expert evidence clearly established the appellant suffered significant psychological harm due to the inordinate delay.