ODC 2016

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario finding him guilty of professional misconduct for sexually abusing an adolescent patient in 1979.

The appellant argued the Committee erred in assessing the credibility and reliability of the complainant's evidence, applied a more stringent standard to his evidence, and provided inadequate reasons regarding similar fact evidence.

The Divisional Court dismissed the appeal, finding the Committee's credibility assessments were reasonable, there was no unequal scrutiny of evidence, and the Committee clearly explained it did not rely on the similar fact evidence to reach its conclusions.

Following a successful appeal that reinstated spousal support payments, the appellant sought costs of the appeal and the original motion on a substantial indemnity basis.

The court found no bad faith conduct by the respondent but awarded substantial indemnity costs from the date of the appellant's more favourable offer to settle.

Noting that the claimed costs of over $116,000 were disproportionate and lacked detailed dockets, the court reduced the fees to account for duplication of effort.

Costs were fixed at $85,727.14 inclusive of disbursements and HST.

The plaintiffs sought leave to appeal an interlocutory costs order in a securities misrepresentation class action.

The motion judge had ordered the defendant to pay 50% of the costs forthwith and 50% in the cause, while disallowing disbursements that had already been paid by settling defendants.

The Divisional Court dismissed the motion for leave to appeal, finding that the plaintiffs failed to satisfy the tests under Rule 62.02(4)(a) or (b).

The court emphasized the high degree of deference owed to discretionary costs orders, particularly those made by an experienced case management judge in a complex class proceeding.

The applicants sought judicial review of two interim decisions of the Human Rights Tribunal of Ontario regarding a workplace discrimination complaint.

The Tribunal had denied the applicants' request to dismiss the complaint for being outside the limitation period, finding that the allegations constituted a series of incidents.

The Divisional Court dismissed the application for judicial review as premature, holding that the Tribunal's decisions were interlocutory and that there were no exceptional circumstances to justify fragmenting the administrative proceedings.

The applicant builder sought judicial review of Tarion Warranty Corporation's decision finding it unwilling or unable to resolve warranty claims, which allowed Tarion to abridge vendor repair periods.

The Divisional Court dismissed the application without hearing the merits, finding that the issue was moot because the repair periods had long expired and Tarion had already undertaken the repairs.

The court also noted the applicant's unreasonable delay in bringing the application and the availability of an alternative remedy through an existing civil action.

The appellant massage therapist appealed a decision of the Discipline Committee Panel finding him guilty of professional misconduct and sexual abuse of a patient.

The Divisional Court allowed the appeal, finding that the Panel's decision was unreasonable because its credibility assessment of the complainant and the appellant was fundamentally flawed, incomplete, and lacked transparency.

The matter was remitted for a new hearing before a differently constituted panel.

Following the release of its decision on the main appeal, the Divisional Court realized it had inadvertently omitted addressing the appellant's supplementary notice of appeal regarding a $10,000 costs order made by the motion judge.

The respondent argued the issue should be left to the Court of Appeal or dismissed due to late service.

The Court rejected these arguments, deciding to hear the costs appeal and setting a timetable for written submissions.

The Corporation of Haldimand County sought leave to appeal a decision of the Assessment Review Board that granted U.S. Steel Canada Inc. vacancy tax rebates for periods during which it had locked out its unionized employees.

The Board had found that the maintenance activities conducted during the lockouts did not constitute 'use' of the property under Ontario Regulation 325/01.

The Divisional Court granted leave to appeal, finding that there was good reason to doubt the correctness of the Board's statutory interpretation of 'use' and 'vacant property' in the context of a voluntary lockout, and that the issue was of sufficient public importance to warrant appellate review.

The applicant sought leave to appeal an interim order requiring him to pay retroactive spousal support and maintain the respondent as an irrevocable beneficiary of his life insurance.

The court dismissed the motion for leave to appeal, finding that the applicant failed to establish a conflicting decision under Rule 62.02(4)(a) or a matter of general importance under Rule 62.02(4)(b).

Costs of $6,000 were awarded to the respondent.

The appellant wife appealed a motion judge's order that retroactively reduced the respondent husband's child and spousal support obligations.

The motion judge had found a material change in circumstances because the husband, who previously had income imputed to him due to unreliable financial disclosure, filed tax returns and an accountant's report.

The Divisional Court allowed the appeal, finding no material change in circumstances as the husband's newly declared income was essentially the same as what he claimed at trial, and the accountant's report relied entirely on his self-reported figures which the trial judge had already deemed unreliable.

The retroactive reduction was also found to be in error.

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

The applicant argued the Board breached natural justice by denying its request for production of documents related to alleged employer support for the rival union.

The Divisional Court dismissed the application, finding that the Board's denial of the production request was an exercise of its statutory discretion under the Labour Relations Act, 1995, not an issue of natural justice.

Applying a reasonableness standard, the Court upheld the Board's conclusion that the applicant had not established a foundation for its case and was improperly seeking production to determine if it had one.

The applicant sought judicial review of the Toronto Police Services Board's decision refusing to purge a 'person of interest' record from his Police Vulnerable Sector Check regarding an unproven 2000 allegation.

On this motion, the applicant sought an order allowing him to proceed anonymously using initials and redacting identifying information from the record.

The court granted the request to use initials and redact his identifying information, finding a serious issue to be tried, irreparable harm if his name was disclosed, and that the balance of convenience favoured protecting his privacy to allow the judicial review to proceed.

The request to redact information about his relatives was denied.

The appellant estate trustee appealed a Master's order dismissing a motion to withdraw admissions regarding property ownership and to consolidate three related proceedings.

The Divisional Court upheld the Master's decision, finding no reasonable explanation for the appellant's attempt to withdraw a clear admission made over a year after a consent order for the sale of the property.

The court also agreed that consolidating the proceedings would contradict the prior consent order and increase complexity.

The appeal was dismissed with costs.

The moving parties brought a motion to adjourn the hearing of a judicial review application scheduled for February 2016.

The moving parties argued that their counsel was unavailable, they were not consulted on the date, and there was insufficient time to prepare a proper response, including conducting cross-examinations.

The court applied the factors for granting an adjournment and found that proceeding in February would deny the moving parties the opportunity to fairly make out their case.

The motion was granted and the hearing was adjourned to October 2016.

The appellant distributor appealed a Tribunal decision finding it had improperly terminated a dealership agreement with the respondent dealer.

The Tribunal had awarded damages and costs to the dealer.

The Divisional Court held that the Tribunal correctly found that Regulation 123/06 under the Farm Implements Act applied retrospectively to the agreement.

The majority held that the Tribunal's findings regarding the interpretation of the agreement and the unreasonableness of the distributor's refusal to renew were questions of mixed fact and law, and therefore not subject to appeal.

However, the Court unanimously set aside the Tribunal's award of damages for obsolete assets as an error of law, and quashed the costs award, remitting it to the Tribunal for reconsideration.

The appellant, a paralegal, sought an extension of time to appeal an interlocutory costs order and an appeal panel decision of the Law Society of Upper Canada.

The appellant had been charged with exceeding his authority by representing clients on super summary offences.

The Divisional Court dismissed the motion, finding it lacked jurisdiction to hear an appeal from the interlocutory costs order.

The court also declined to extend the time to appeal the appeal panel decision, concluding there was no merit to the proposed appeal and that the interests of justice required the appellant to raise his factual and constitutional arguments at a new disciplinary hearing.

The appellant lawyer was found by the Law Society Hearing Division to have knowingly assisted in mortgage fraud and his licence was revoked.

The Appeal Division upheld the misconduct finding and the dismissal of a stay motion based on delay, but substituted a two-year suspension for the revocation due to the Law Society's inordinate delay.

The appellant appealed the misconduct and stay decisions, and the Law Society cross-appealed the penalty decision.

The Divisional Court dismissed both the appeal and cross-appeal, finding that the Appeal Division correctly interpreted the law on delay and reasonably concluded that a two-year suspension was appropriate.

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

The plaintiff, a citizen of India who returned there after his permanent resident card expired, argued the motion judge erred by not accepting an after-the-event legal protection insurance policy as adequate security and by failing to consider the merits of his slip and fall claim.

The Divisional Court dismissed the motion, finding no conflicting decisions on principle and no reason to doubt the correctness of the motion judge's order, as the judge properly applied the test for security for costs and reasonably assessed the evidence.

The applicant sought judicial review of an OIPRD decision affirming the Toronto Chief of Police's conclusion that his assault complaint against an officer was unsubstantiated.

The applicant argued the OIPRD breached procedural fairness by refusing to disclose the subject officer's statement before the applicant provided his own.

The Divisional Court dismissed the application, finding no statutory obligation to disclose the officer's statement to the complainant at the investigative stage, and held that the OIPRD's decision was reasonable.

The College of Nurses of Ontario appealed a discipline panel's decision regarding a nurse who was found guilty of professional misconduct following criminal convictions for child pornography offences.

The nurse had resigned prior to the hearing, and the panel concluded it lacked jurisdiction to revoke his certificate of registration because it was 'non-existent'.

The Divisional Court allowed the appeal, finding the panel's interpretation unreasonable and contrary to the broad, purposive intent of the Regulated Health Professions Act.

The Court held that the College retains continuing jurisdiction to impose sanctions, including revocation, on former members to protect the public.

The Court set aside the panel's penalty and ordered the revocation of the respondent's certificate.