ODC 2016

The Association of Justices of the Peace of Ontario brought an application for judicial review of the Lieutenant-Governor in Council's response to the Sixth Justices of the Peace Remuneration Commission's report.

The Association challenged the government's rejection of salary and WASH Court day recommendations, and its unilateral implementation of benefit changes.

The Divisional Court held that the government provided a rational basis for rejecting the salary and WASH Court recommendations.

However, the court found the unilateral implementation of benefit changes without independent commission consideration to be unconstitutional, quashing that part of the response and prohibiting implementation until a commission reports on the issue.

A motion by the government to set aside an interlocutory stay order was dismissed.

The appellant appealed a Small Claims Court judgment ordering him to return $25,000 to the respondent.

The respondent and his wife had invested $35,000 in the appellant's internet start-up company, signing written agreements.

The trial judge found that the appellant had orally agreed to return the money on demand.

On appeal, the appellant argued that the respondent was not a proper party plaintiff and that the trial judge erred in admitting parol evidence of the oral agreement.

The Divisional Court dismissed the appeal, finding that the oral agreement did not contradict the written agreements and fell within the collateral contract exception to the parol evidence rule.

The court also added the respondent's wife as a party plaintiff.

The moving party sought leave to appeal an order dismissing her motion to terminate an ex parte Mareva injunction and a related costs order of $33,500.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision, which properly applied the test for Mareva injunctions and carefully reviewed the evidence.

The court also found the proposed appeal did not involve matters of general importance.

The appellant appealed the dismissal of his action against the LCBO for damages for conversion.

The appellant's credit card was used without his authorization to purchase over $37,000 in alcohol from the LCBO, which was delivered to a nightclub.

The Divisional Court upheld the trial judge's finding that the LCBO did not commit conversion because there was no evidence of an intentional or wrongful act, as the LCBO had no knowledge the charges were unauthorized.

The appeal was dismissed.

The appellant appealed a Small Claims Court decision dismissing her dental malpractice action against the respondent prosthodontist.

The appellant alleged that the respondent negligently replaced a dental crown and failed to obtain informed consent.

The trial judge dismissed the action because the appellant's own expert did not opine that the respondent's work fell below the standard of care, while the respondent's expert confirmed the treatment met the standard.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the appellant failed to prove a breach of the standard of care or a lack of informed consent without supporting expert evidence.

The moving parties sought leave to appeal a decision dismissing their motion for a mandatory injunction to compel the respondents to provide fleet insurance for their rental vehicles.

Fresh evidence revealed that the moving parties had sold their fleet, rendering the motion moot.

The court dismissed the motion for leave to appeal on the basis of mootness, and alternatively on the merits, finding no conflicting decisions or reason to doubt the correctness of the motion judge's decision.

The appellants appealed a Small Claims Court judgment that dismissed their claim for damages and awarded the respondent $3,500 for intentional infliction of mental suffering.

The trial judge found that the appellant doctor engaged in sexually inappropriate and unprofessional conduct that caused the respondent anxiety and mental suffering.

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

Following the dismissal of the appellant's appeal regarding a Renewable Energy Approval for a wind turbine project, the successful respondent sought costs of $20,000.

The appellant argued no costs should be awarded as he was a public interest litigant and the appeal raised a novel issue.

The Divisional Court rejected these arguments, noting that private landowners challenging REAs are not public interest litigants and the appeal did not raise a novel issue.

The court fixed costs payable by the appellant to the respondent at $10,000.

The plaintiffs in two class action proceedings sought leave to appeal a case management judge's dismissal of their motion for contempt.

The plaintiffs alleged that the defendant municipality breached a court order limiting communication with class members during the opt-out period.

The court denied leave to appeal, finding that the case management judge correctly applied the test for civil contempt, reasonably concluded the order was subject to multiple interpretations, and that there was no conflicting case law or good reason to doubt the correctness of the decision.

The moving party brought a motion to add the Independent Police Review Director, the Toronto Police Service, and several constables as respondents in his application for judicial review of a decision of the Ontario Civilian Police Commission.

The constables opposed only the addition of the Director.

The court found that the Director was already imperfectly named as a respondent in the body of the notice of application and could be added to the heading without leave.

Alternatively, the court held that the Director ought to have been named as a respondent because he had a statutory right to be heard on the appeal before the Commission and his unique oversight role under the Police Services Act made his presence necessary to effectively adjudicate the issues.

The motion was granted.

The landlord appealed a Landlord and Tenant Board decision ordering him to pay $25,000 in compensation for disposing of the tenant's property after an eviction.

The tenant had been incarcerated, and his parents attempted to pay rent, but the landlord refused payment and ignored their communications.

The Divisional Court dismissed the appeal, finding the Board's conclusion that the landlord's conduct constituted an abuse of process was reasonable and supported by the evidence.

The appellants, homeowners, appealed a trial judgment that awarded the respondent masonry subcontractor $14,714.12 on a construction lien claim and dismissed the appellants' $200,000 cross-claim for slander of title.

The appellants argued the trial judge erred in interpreting the contract, finding the lien was preserved in time, and awarding $30,000 in costs.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the contract terms and the date of last work.

The court also upheld the costs award, noting the appellants had refused to transfer the matter to Small Claims Court and had unnecessarily complicated the proceedings.

The appellants brought a motion to introduce fresh evidence on appeal, specifically an aerial photograph they claimed showed the respondent's equipment had been removed from the construction site earlier than the respondent testified.

The Divisional Court applied the Palmer test and dismissed the motion, finding that the evidence could have been discovered before trial with due diligence, was not decisive to the core issue of when the work was completed, and lacked credibility without expert interpretation.

The Ministry moved to quash an application for judicial review brought by a Drive Clean facility and its owner.

The applicants sought to review an arbitrator's decision upholding the termination of their accreditation and certification for falsifying test results.

The Ministry argued the court lacked jurisdiction due to a mandatory arbitration clause in the Performance Contract.

The court found that while the accreditation process is a licensing system, there was no legislative intent in the Environmental Protection Act to override the mandatory arbitration clause.

The application for judicial review had no reasonable prospect of success and was quashed.

The appellant husband appealed a final spousal support order, arguing a lack of procedural fairness.

The Divisional Court found that the lower court judge, who had presided over a settlement conference, erred by deciding the substantive issue without clear consent from both parties.

Furthermore, the unrepresented husband was prejudiced by the late service of the respondent's factum and affidavit on the morning of the hearing.

The appeal was allowed, the support order was set aside, and the matter was remitted to the Family Court for a new hearing before a different judge.

The appellant car wash business appealed an Ontario Municipal Board order requiring it to pay $86,943.20 in costs to the respondent municipality after its claim for injurious affection was dismissed.

The appellant argued the costs were excessive and the Board placed undue reliance on the respondent's $15,000 settlement offer.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding the Board properly exercised its discretion under the Expropriations Act to award costs based on the appellant's unreasonable conduct in refusing the offer and proceeding with a meritless claim.

The defendants appealed a motion judge's decision granting judgment in favour of the plaintiffs based on original minutes of settlement.

The motion judge found that the individual defendant had fraudulently misrepresented the financial status of the corporate defendant to extract an agreement from the plaintiffs to amend the settlement and remove his personal liability.

The Divisional Court upheld the motion judge's findings of fraudulent misrepresentation and equitable rescission, concluding that the original minutes of settlement were binding despite not being formally executed.

The appeal was dismissed.

The father appealed an order requiring him to return his child to Denmark pursuant to the Hague Convention.

The father argued that a parenting plan signed by the mother before they moved to Denmark established that the child's habitual residence remained in Ontario.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the parenting plan was unenforceable and signed under duress, and that the child's habitual residence was Denmark at the time of the wrongful removal.

The appellant appealed a Small Claims Court decision awarding the respondent damages for wrongful dismissal based on a continuous period of employment that included time with a previous, separate company.

The Divisional Court allowed the appeal, finding the trial judge erred in law by concluding the previous employer's obligations flowed through to the appellant.

The evidence demonstrated the two companies were separate corporate entities and the respondent had resigned from the first to join the second.

The damages award was reduced to reflect only the period of employment with the appellant.

The defendants sought leave to appeal an interlocutory order approving the plaintiff's discovery plan in a class action for unpaid overtime.

The defendants argued the order conflicted with established principles of relevance in class actions.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the motion judge's decision on relevance and concluding it was not desirable to grant leave.