ODC 2016

The appellant employer appealed a Small Claims Court decision finding it had wrongfully dismissed the respondent employee and breached the Human Rights Code.

The employee was terminated after a 28-month disability leave, despite providing a return-to-work plan.

The Divisional Court upheld the trial judge's findings that the employment contract was not frustrated, the employer failed to accommodate the employee, and disability benefits paid by a third-party insurer were not deductible from the wrongful dismissal damages.

The appeal was dismissed.

The defendants sought leave to appeal an order dismissing their motion to strike the plaintiff's claims for damages arising from delayed market entry of a generic drug.

The defendants argued the Patent Act provided a complete code, precluding common law claims.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting Ontario decisions and no good reason to doubt the correctness of the motion judge's order, emphasizing that pleadings motions should rarely warrant appellate review.

Following the dismissal of the appellants' motion for leave to appeal an Ontario Municipal Board decision regarding a development on lands with significance to indigenous persons, the successful respondents sought costs.

The court declined to award costs against the appellants, finding they met the criteria for public interest litigants as they raised issues of public importance regarding indigenous religious sites and had no pecuniary interest in the outcome.

Additionally, the court awarded costs to the appellants' counsel personally against one of the respondents for an abandoned claim for personal costs under Rule 57.07(1).

The tenant appealed an eviction order from the Landlord and Tenant Board for non-payment of rent.

The landlord brought a motion to quash the appeal and lift the automatic stay.

The Divisional Court found the appeal was manifestly devoid of merit and an abuse of process, as the tenant had paid no rent, provided no evidence, and abandoned the LTB hearing.

The appeal was quashed, the stay lifted, and the landlord was awarded substantial indemnity costs.

The applicant brought a motion under s. 21(5) of the Courts of Justice Act to set aside or vary an earlier order dismissing his application for judicial review as frivolous and vexatious under Rule 2.1 of the Rules of Civil Procedure.

The respondent City of Toronto sought to quash the motion, arguing there was no jurisdiction for a panel of the Divisional Court to review the order.

The court agreed with the respondent, finding that an order under Rule 2.1 is made by 'the court' on its own initiative, not by a judge on a motion, and therefore s. 21(5) does not apply.

The motion to vary was dismissed as being without merit and an abuse of process.

The applicant sought leave to appeal a decision of the Assessment Review Board classifying 32 of its natural gas gate stations as industrial rather than commercial properties.

The Board had found that adding odourant to natural gas constituted 'processing' under the Assessment Act regulations.

The Divisional Court clarified that the test for leave to appeal where the standard of review is reasonableness is whether there is reason to doubt the reasonableness of the decision, rather than its correctness.

Finding that there was reason to doubt the reasonableness of the Board's interpretation of 'processing' and that the issue was of sufficient importance, the Court granted leave to appeal.

The applicant, a 17-year-old with autism, sought judicial review of the respondent's decision denying him eligibility for government-funded Intensive Behaviour Intervention (IBI) therapy.

The applicant alleged that the respondent lost medical records, failed to follow assessment guidelines, and made an unreasonable decision.

The Divisional Court dismissed the application, finding no evidence of lost records or procedural unfairness.

The court held that the respondent's clinical assessment was conducted in accordance with the applicable guidelines and its conclusion that the applicant was not at the severe end of the autism spectrum was reasonable.

Although the application was technically moot due to changes in the government's autism funding policy, the court addressed the merits to dispose of the applicant's unfounded allegations against the respondent's staff.

Three mothers sought judicial review of decisions made by the Motherisk Commission regarding their child protection cases.

The court first ruled that the mandatory publication ban under s. 45(8) of the Child and Family Services Act prevented the media from publishing the mothers' names, even with their consent.

The court then dismissed one application as moot because the applicant had already received a favourable ruling from the Commissioner.

The remaining two applications were dismissed as premature because the applicants had not yet exhausted the internal reconsideration processes available before the Commission.

The defendants sought leave to appeal an order certifying a class proceeding brought by sales agents claiming to be employees under the Employment Standards Act rather than independent contractors.

The defendants argued the motions judge erred in finding employee status to be a common issue and in failing to limit the class definition based on the limitation period.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the certification order.

The registered owners of a property fraudulently discharged a first mortgage held by Computershare and subsequently granted new mortgages to CIBC and Secure Capital.

The application judge found the CIBC mortgage was a 'fraudulent instrument' under the Land Titles Act and restored Computershare's priority.

The Divisional Court allowed CIBC's appeal, holding that because the owners were the registered owners of the fee simple when they granted the CIBC mortgage, they did not falsely hold themselves out as owners in the instrument.

Therefore, the CIBC mortgage was not a fraudulent instrument and was entitled to priority under the deferred indefeasibility scheme of the Land Titles Act.

The moving parties sought an extension of time to file a notice of appeal from a judgment ordering the removal of construction completed without building permits.

The court found that while the moving parties met the first three parts of the test for an extension, the proposed appeal lacked merit.

The application judge had jurisdiction to hear the application, and the new grounds of appeal were not raised before the application judge.

The motion to extend time was dismissed with costs awarded to the respondent.

The University of Ottawa applied for judicial review of an arbitrator's award concerning overtime pay under Article 20.4 of the collective agreement.

The arbitrator found that the grievors were entitled to overtime because their evening and weekend work was an add-on to their regular schedule, not a modified or temporarily altered schedule.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement and findings of fact were reasonable and owed deference.

The appellant, an audiologist with a doctorate degree, appealed a discipline panel's finding of professional misconduct for using the title 'Doctor' in her clinical practice, contrary to s. 33 of the Regulated Health Professions Act.

She argued that the prohibition violated her freedom of expression under s. 2(b) of the Charter and raised several jurisdictional challenges against the College.

The Divisional Court dismissed the appeal, holding that it was bound by Supreme Court precedent finding no s. 2(b) violation for similar professional title restrictions.

Alternatively, the Court found that any infringement was justified under s. 1 of the Charter as a reasonable limit to prevent public confusion.

The Court also dismissed all jurisdictional arguments, finding the tribunal's decisions on procedure, penalty, and costs to be reasonable.

The appellants appealed a Small Claims Court judgment awarding the respondents $25,000 in damages for a defectively installed stamped concrete driveway and sidewalk.

The trial judge found that the colour and design were essential terms of the contract and awarded damages based on the cost to remove and replace the concrete.

On appeal, the appellants argued damages should have been assessed based on diminution of value.

The Divisional Court found no palpable and overriding error in the trial judge's choice of the measure of damages, given the factual finding on the importance of aesthetics.

However, the court reduced the damages to $17,200 to account for the $9,000 already paid by the respondents, preventing a windfall.

The appellants appealed a Small Claims Court decision ordering them to pay $5,000 for painting services provided by the respondent.

They argued the trial judge erred in finding liability despite poor workmanship, misapplied quantum meruit, and improperly found one appellant was a party to the contract.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and concluding the reasons were adequate given the informal nature of the Small Claims Court.

The appellant appealed an order directing the sale of the matrimonial home and the payment of child and spousal support.

The Divisional Court dismissed the appeal, noting that the appellant did not have leave to appeal the support orders and acknowledged he could not purchase the respondent's interest in the matrimonial home.

The court advised that any change in circumstances should be addressed through a motion to change.

The tenant appealed a Landlord and Tenant Board decision ordering her eviction for rent arrears.

By the time the appeal reached the Divisional Court, the tenant had paid the arrears in full, rendering the eviction order void and the appeal moot.

The sole issue before the court was the disposition of costs.

Although the court noted the landlord acted precipitously in seeking eviction, the landlord was legally entitled to do so.

The appeal was dismissed without costs.

The applicant sought judicial review of decisions by the Information and Privacy Commissioner regarding a freedom of information request for an OPP investigation report.

The Commissioner had found that the Ministry repeatedly failed to properly exercise its discretion under the law enforcement exemption, but closed the appeal file claiming he was functus officio and had no further recourse.

The Divisional Court quashed the Commissioner's decisions, finding he erred in law by misapprehending the scope of a prior Supreme Court of Canada remittal order.

The Court remitted the matter back to the Commissioner and issued a declaration that the Ministry had disregarded the Commissioner's proper directions regarding its exercise of discretion.

The Ministry of the Attorney General sought judicial review of an Information and Privacy Commissioner order directing the disclosure of a draft prosecutorial guideline concerning HIV exposure.

The Commissioner found that while the draft guideline originated in solicitor-client privilege, the privilege was waived when an Assistant Crown Attorney shared it with a municipal public health manager.

The Divisional Court dismissed the application, holding that the standard of review was reasonableness and that the Commissioner reasonably concluded the privilege was waived because the Ministry and the public health authority did not share a sufficient common interest.

The appellant appealed a trial judgment awarding him $21,000 for breach of a flooring contract, arguing the trial judge erred by failing to find fraud, failing to award damages for a technical assault, and failing to award punitive damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of damages or findings of fact.

Costs of the appeal were awarded to the respondents and set off against outstanding costs orders owed to the appellant.