ODC 2017

The applicant sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing her complaint against the Social Benefits Tribunal (SBT), the City of Windsor, and the Ministry of Community and Social Services.

The HRTO had dismissed the complaint against the SBT based on adjudicative immunity, and against the other respondents under s. 45.1 of the Human Rights Code, finding the issues had already been authoritatively decided by the SBT.

The Divisional Court dismissed the application for judicial review, holding that the HRTO's decisions were reasonable and that the applicant's proper remedy was to appeal the SBT decision rather than launch a collateral attack via a human rights complaint.

The applicant sought judicial review of two Ontario Labour Relations Board decisions dismissing its application to review orders to pay unpaid wages.

The Board dismissed the application because it was filed out of time and the applicant failed to pay the ordered amounts in trust.

The Divisional Court held that the Board's refusal to grant an extension of time was reasonable, noting the urgency inherent in the payment of wages to employees.

The application for judicial review was dismissed with no costs.

The applicant sought judicial review of the Workplace Safety and Insurance Appeals Tribunal's decision refusing his third request for reconsideration of a 2007 decision denying him benefits for carpal tunnel syndrome.

The applicant had previously exhausted all appeals, including to the Supreme Court of Canada.

The Divisional Court dismissed the application, finding that the Tribunal's decision not to order a further reconsideration was reasonable, as the applicant was merely attempting to reargue issues already decided.

The moving party sought leave to appeal an order requiring him to submit to a capacity assessment in the context of a will challenge.

The moving party was unrepresented and failed to address the tests for leave to appeal under Rule 62.02(4).

The court found no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, which was procedural and fact-driven.

The motion for leave to appeal was dismissed with costs.

The appellant municipality appealed a Small Claims Court decision finding it responsible for the cost of thawing a frozen waterline on its side of the property line.

The municipality had historically thawed such blockages without charge but attempted to discontinue the practice via an un-enacted policy.

The Divisional Court dismissed the appeal, holding that the municipality's due diligence obligation included bearing this cost and that it was subject to an estoppel preventing it from discontinuing the service without enacting specific provisions to the contrary.

The appellant hired the respondent to install a custom muffler.

When picking up the vehicle, the respondent advised of an oil leak but assured the appellant it was safe to drive.

The vehicle's engine was subsequently destroyed.

The Small Claims Court found the respondent negligent but reduced the appellant's damages by 50% for contributory negligence.

On appeal, the Divisional Court reversed the contributory negligence finding, holding that the appellant reasonably relied on the respondent's assurances.

The court awarded full damages and fixed trial and appeal costs.

The landlord appealed an order of the Landlord and Tenant Board requiring him to pay the tenant's last month's rent deposit, out-of-pocket expenses, and a rent abatement.

The landlord argued he did not receive notice of the hearing.

The Divisional Court dismissed the appeal, finding the Board's conclusion that the landlord was responsible for not receiving the notice was reasonable and entitled to deference.

The applicant, a student with disabilities, sought judicial review of a Human Rights Tribunal decision that found the school board failed to accommodate him but denied his claim for special damages covering private school tuition.

The Divisional Court held that while it was reasonable to deny tuition costs for subsequent years because the parent removed the student from the public system without giving the board a further chance to accommodate, it was unreasonable to deny tuition costs for the remainder of the Grade 9 year when the board had completely failed to provide support.

The application was granted in part and remitted to the Tribunal to assess special damages for the Grade 9 year.

The appellant appealed a Small Claims Court decision dismissing his action for nuisance, negligence, and trespass against his neighbour.

The dispute arose when the respondent cut down boundary cedars to build a fence for the safety of a special needs child, after the appellant unreasonably refused consent.

The Divisional Court upheld the trial judge's finding that the overgrown cedars constituted a nuisance, substantially and unreasonably interfering with the respondent's use of his property.

The court confirmed that where a boundary tree is a nuisance, the Forestry Act does not prevent a co-owner from abating the nuisance through self-help if the other owner unreasonably withholds consent.

The appeal was dismissed.

The appellant, Econo Petroleum Inc., appealed a Small Claims Court decision ordering it to pay unpaid commissions to 2081430 Ontario Inc. and to return a security deposit to Vladimir Gorbatchevski.

The Divisional Court dismissed the appeal, finding that the trial judge made no palpable and overriding errors in concluding that an informal agreement existed for the payment of commissions, that no set-off damages were owed for lack of notice of termination, and that Econo was responsible for returning the security deposit.

Costs were awarded to the respondents.

The applicant brought a motion to stay a timetable order pending the determination of a motion for leave to appeal.

The timetable order required the applicant to attend questioning and a settlement conference by specific dates, which she argued she could not meet due to professional commitments and medical issues.

The Divisional Court dismissed the motion, finding that the applicant failed to meet the RJR-MacDonald test for a stay.

The court held that the timetable order was discretionary, raised no serious issue to be tried, and that the applicant had not established irreparable harm or that the balance of convenience favoured a stay.

The applicant sought judicial review of a decision by the Human Rights Tribunal of Ontario, which summarily dismissed his discrimination complaint against the respondent housing corporation regarding his eviction for rent arrears.

The Divisional Court dismissed the application, finding it to be an abuse of process as the applicant sought to relitigate his employment termination and eviction, which had already been settled or decided.

The court held that the Tribunal's decision was reasonable, procedurally fair, and entitled to deference.

The applicant was ordered to pay costs of $2,644.55 and barred from bringing further applications without paying outstanding costs and obtaining leave.

The plaintiffs sought leave to appeal a motion judge's decision that refused to strike out several paragraphs of the defendant's statement of defence.

The underlying action involved the recognition and enforcement of a $9.5 billion Ecuadorian judgment.

The defendant pleaded defences of fraud, public policy, and lack of natural justice, alleging the foreign judgment was ghostwritten and obtained through bribery.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the pleaded defences were recognized in law and not plainly and obviously bound to fail.

The appellant appealed a Small Claims Court decision that ordered the respondent to pay a reduced amount for a credit card debt.

The trial judge had excluded the appellant's affidavit and attached business records because they were served 23 days before trial instead of the required 30 days, and because the business records were not qualified under the Evidence Act.

The Divisional Court allowed the appeal, finding the trial judge made palpable and overriding errors by failing to exercise discretion to admit the evidence, especially since the respondent did not dispute the debt amount or interest rate and suffered no prejudice.

Judgment was varied to award the appellant the outstanding balance at the contractual interest rate.

The appellant employer appealed a Small Claims Court decision finding it had constructively dismissed the respondent employee.

The sole ground of appeal was that the trial judge failed to address the issue of mitigation of damages in his reasons, as the employee delayed starting new employment for several months.

The Divisional Court dismissed the appeal, holding that while the trial judge's reasons were deficient on their face, the record clearly showed the employee acted reasonably in delaying his new employment based on legal advice regarding a potential injunction.

The court exercised its power under s. 134 of the Courts of Justice Act to find the employee had not failed to mitigate his damages.

The appellant appealed a Master's order that dismissed its action for delay under Rule 11.03 of the Rules of Civil Procedure.

The Master had found that the appellant intentionally delayed obtaining an order to continue following a corporate reorganization to insulate its assets from the respondent's counterclaim.

The Divisional Court allowed the appeal in part, finding that the Master misapprehended the evidence and erred in applying the test for dismissal.

The Court held that a dismissal under Rule 11.03 requires a showing of prejudice related to the failure to obtain the order to continue, which the respondent failed to demonstrate.

The dismissal of the action was set aside, though the Master's refusal to vary the flawed 2015 order to continue was upheld, with leave for the appellant to requisition a fresh order.

The moving parties sought leave to appeal a Case Management Judge's interlocutory order refusing to recuse herself for alleged bias, as well as the order requiring them to pay $32,681.83 in costs on a full indemnity scale for the unsuccessful recusal motion.

The court dismissed the motion for leave to appeal, finding no conflicting decisions, no broad significance to the recusal issue, and no error in principle in the discretionary costs award.

The moving parties were ordered to pay $5,000 in costs for the leave motion.

The appellant, a commercial rabbit farmer, appealed a trial decision dismissing his counterclaim that contaminated feed supplied by the respondent caused mass mortality in his rabbit herd.

The trial judge had preferred the evidence of the respondent's expert over the appellant's expert regarding the sensitivity of rabbits to mycotoxins.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment and weighing of the expert evidence.

The appellant appealed a decision of the Ontario Municipal Board dismissing a request for an Official Plan amendment to sever a two-acre portion of its golf course property containing a house.

The house was originally built as an accessory use to the golf course.

The Divisional Court held that the OMB's decision was reasonable, agreeing that it would be contrary to planning policy to allow a party to build a home as an accessory use and later sever it for residential use when it is no longer needed for the golf course.

The appellant, a black man, was unlawfully stopped, punched, searched, and left handcuffed on ice by police officers.

The trial judge found breaches of ss. 8, 9, and 10 of the Charter but declined to find racial profiling under s. 15.

On appeal, the Divisional Court found that the circumstantial evidence clearly established racial profiling.

The court increased the Charter damages against the Police Services Board to $50,000 to vindicate society's interest and deter future breaches, and increased punitive damages against both the Board and the offending officer to $25,000.