ODC 2017

The appellants appealed the dismissal of their Small Claims Court action for damages to their vehicle caused by the respondents during restoration.

The trial judge dismissed the action mid-trial upon learning the appellants had traded the damaged vehicle to a third party, concluding the cause of action had disappeared.

The Divisional Court allowed the appeal and ordered a new trial, finding that the cause of action remained with the appellants as it had not been assigned, and that the trial judge erred in dismissing the claim without hearing all of the appellants' evidence.

The applicant sought an extension of time to file a motion for leave to appeal an interlocutory order requiring him to pay security for costs.

The court denied the extension, noting the litigation had been ongoing for 15 years and the applicant was pursuing a meritless property claim.

The court further held that even if the motion was timely, leave to appeal would be denied because the proposed appeal did not involve matters of importance beyond the interests of the parties.

The defendants sought leave to appeal an order refusing their motion for summary judgment regarding a building loss claim.

The motions judge had concluded that summary judgment was not a proportionate means to achieve a just result, as the claim involved issues requiring the weighing of evidence and assessment of credibility, including the application of a covenant to insure.

The Divisional Court dismissed the motion for leave to appeal, finding that the moving parties failed to satisfy either branch of the test under Rule 62.02(4) of the Rules of Civil Procedure.

The defendants moved for a stay of an interlocutory injunction order pending the determination of their motion for leave to appeal.

The injunction restrained the defendants from competing against the plaintiff corporation and from using confidential information or soliciting clients.

The court applied the three-part test for a stay and found that the motion for leave to appeal was unlikely to succeed, the defendants would not suffer irreparable harm that could not be compensated in damages, and the balance of convenience favoured the plaintiffs.

The motion for a stay was dismissed.

The appellant appealed a Master's decision refusing to set aside an administrative dismissal for delay and refusing to add further defendants.

The Divisional Court found no error of legal principle or palpable and overriding error of fact in the Master's application of the four-part Reid test.

The Master had correctly concluded that the appellant failed to adequately explain the delay, failed to prove inadvertence, and failed to rebut the presumption of prejudice.

The appeal was dismissed with costs awarded to the respondents.

The appellant tenants appealed an order of the Landlord and Tenant Board terminating their tenancy for non-payment of rent.

The Divisional Court quashed the appeal, finding that the appellants' grounds—which alleged inadequate notice and cited medical and financial hardship—did not raise a question of law as required by section 210 of the Residential Tenancies Act.

The court awarded costs of $3,500 to the respondent landlords.

The applicant insurer sought leave to appeal an order dismissing its motion to compel the plaintiff to attend three defence medical examinations and a future care assessment.

The motion judge had denied the examinations due to the insurer's failure to comply with the rules regarding the delivery of expert reports prior to pre-trial conferences.

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 exercise of discretion under section 105 of the Courts of Justice Act.

The tenant appealed an order of the Landlord and Tenant Board evicting her so the landlord could use the basement unit for storage related to her personal occupation of the rest of the house.

The tenant argued that storage did not constitute 'residential occupation' under s. 48(1) of the Residential Tenancies Act, 2006, and that the Vice-Chair showed bias by initiating a review of a previous order.

The Divisional Court dismissed the appeal, finding the Board's interpretation of 'residential occupation' to be reasonable and concluding there was no reasonable apprehension of bias.

The appellants, commercial tenants, appealed a Small Claims Court judgment ordering them to pay rent arrears.

They argued the trial judge erred in finding no oral agreement to extend a temporary rent reduction, and failed to apply the doctrines of promissory estoppel and waiver based on the landlord's acceptance of reduced rent cheques.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding errors of fact in preferring the landlord's evidence, and that his factual findings properly foreclosed the application of promissory estoppel.

The applicant's application for leave to appeal to the Divisional Court was previously dismissed.

The respondent sought costs of $9,698.28 on a partial indemnity basis, arguing the applicant raised numerous complicated grounds of appeal.

The applicant argued for a lower amount based on proportionality and a purported standard maximum of $3,500 for leave applications.

The court rejected the standard maximum, finding the application was more complex than a standard leave application due to the 15 to 17 grounds of appeal raised.

Costs were fixed at $6,500 inclusive of HST and disbursements.

The applicant sought leave to appeal an order made at a Trial Management Conference that imposed conditions, including costs for a supplementary report, on the late filing of his expert report.

The applicant had breached a previous order setting deadlines for expert reports.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the procedural order, which was within the motion judge's jurisdiction under the Family Law Rules.

The plaintiff sought leave to appeal an order dismissing its motion for default judgment against two defendants noted in default.

The motions judge had dismissed the motion, concluding a trial was necessary to address allegations of fraud for piercing the corporate veil and to prove the compact disks were blank.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision as the motions judge failed to apply the deemed admissions under Rule 19.02(1) and the appeal raised important issues regarding the requirement to prove liability in default proceedings.

The appellants appealed a trial judgment awarding the respondent $25,000 for damage to personal property.

The appellants had purchased a home and, when the occupants did not vacate on the closing date, removed their belongings and left them outside in the rain.

The Divisional Court upheld the trial judge's finding that the appellants acted as gratuitous bailees and were grossly negligent in their treatment of the property.

The appeal was dismissed.

The appellants appealed a Master's order dismissing their motion to set aside the Registrar's dismissal of their action for delay.

The action, arising from a construction contract dispute, was dismissed after the appellants failed to set it down for trial by the court-ordered deadline.

The Divisional Court found no error in the Master's application of the Reid test, noting the appellants failed to provide a satisfactory explanation for the delay and bore the primary responsibility to move the litigation forward.

The appeal on the merits was dismissed, but leave to appeal costs was granted and the costs awarded below were reduced to ensure proportionality.

The applicants sought judicial review of a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision that barred their civil action for personal injuries sustained in a bridge collapse.

The WSIAT had determined that the injured applicant was a 'worker' rather than an 'executive officer' of his company, thereby precluding the lawsuit under the historic trade-off of the workplace insurance scheme.

The Divisional Court applied a reasonableness standard of review and found that the WSIAT did not err in its treatment of the evidence, its allocation of the burden of proof, or its ultimate conclusion.

The application for judicial review was dismissed.

The applicant sought judicial review of two decisions of the Human Rights Tribunal of Ontario dismissing his discrimination complaint.

He argued the Tribunal unfairly refused to hear three allegations, improperly conducted the hearing by teleconference, and reached an unreasonable decision.

The Divisional Court dismissed the application, finding the Tribunal reasonably declined to re-litigate allegations already decided in another complainant's hearing, the applicant had agreed to the teleconference format, and the Tribunal's decision was defensible on the facts.

The plaintiff sought leave to appeal from an order that had dismissed a previous motion for leave to appeal.

The Divisional Court held that there is generally no right of appeal from an order refusing leave to appeal, subject to a narrow exception where a judge mistakenly declines jurisdiction.

Finding that jurisdiction was not declined but rather the original motion was decided on its merits, the court concluded it had no jurisdiction to entertain the further motion.

The motion was dismissed as frivolous, vexatious, or an abuse of process under Rule 2.1.01.

The appellant tenant appealed an order of the Landlord and Tenant Board terminating her tenancy so the purchaser could move in.

The appeal automatically stayed the eviction, allowing the appellant to live rent-free for 14 months.

The appellant failed to perfect the appeal, claiming she could not afford the transcripts, and moved for an extension of time.

The Divisional Court dismissed the motion and quashed the appeal, noting the appellant had saved approximately $21,000 in rent and failed to provide proper proof that the transcripts had been ordered.

The self-represented appellant appealed an order dismissing his motion to set aside a settlement and consent dismissal order.

The Divisional Court raised the issue of its jurisdiction to hear the appeal.

The court concluded that it lacked jurisdiction under s. 19(1.2) of the Courts of Justice Act because the order appealed from was not for the payment of money, and the original claim was for $100,000, which exceeded the monetary limit.

The appeal was transferred to the Court of Appeal.

The College of Physicians and Surgeons appealed a penalty imposed by its Discipline Committee on a physician found to have sexually abused four female patients and committed unprofessional conduct toward a fifth.

The Committee had imposed a six-month suspension and practice restrictions.

The Divisional Court allowed the appeal, finding the penalty clearly unfit and unreasonable given the gravity of the misconduct, the inconsistent factual findings regarding the physician's intent, and the need for general deterrence to eradicate sexual abuse in the profession.

The penalty was quashed and remitted to the Committee.