ODC 2017

The appellant brought a motion to perfect its appeal from a Small Claims Court decision without filing a certificate of judgment, to extend the time to perfect, and to file an amended notice of appeal.

The appellant argued that a certificate of judgment was required under Rule 61.10(1)(c) but was difficult to obtain.

The Divisional Court granted the motion, finding that the signed reasons for decision were sufficient to perfect the appeal, and allowed the amended notice of appeal.

No costs were awarded as the appellant could have been more diligent in obtaining the certificate or seeking advice from the Registrar.

The appellant, a dental hygienist, was injured when a dental light fell from the ceiling while she was attending to a patient.

She sued the occupier for negligence under the Occupiers' Liability Act.

A jury dismissed the claim, finding the defendant had not failed in its duty to keep the premises reasonably safe.

The appellant appealed, arguing the verdict was perverse and ignored evidence that the defendant had no system for maintaining the structural integrity of the lights.

The Divisional Court dismissed the appeal, holding that the jury's verdict was supported by some evidence, including testimony from the dentist and the serviceman who installed and serviced the equipment, and that the plaintiff failed to prove causation.

The interested parties appealed a motions judge's order requiring them and the garnishee, Vale Canada Limited, to produce contracts and assignment documents for an upcoming garnishment hearing.

The plaintiffs had obtained a default judgment against the defendant and sought to garnish amounts owed by Vale, alleging that the defendant had invalidly assigned its contracts to the interested parties to avoid garnishment.

The Divisional Court dismissed the appeal, finding that the motions judge properly exercised his discretion under Rule 60.08(16) of the Rules of Civil Procedure to order production of documents relevant to determining the rights and liabilities of the parties at the garnishment hearing.

The municipality appealed a motion judge's decision to stay its civil action against the defendants pending the completion of related criminal fraud charges against one of the defendants.

The Divisional Court allowed the appeal, finding the motion judge erred in law by holding that section 7 of the Charter eclipsed the established test requiring extraordinary or exceptional circumstances for a stay.

The court reaffirmed that the burden remains on the moving party to prove exceptional circumstances, and set aside the stay.

The appellant appealed a Small Claims Court decision that dismissed its claim and struck its defence to the respondents' counterclaim due to the non-payment of a $600 interlocutory costs order.

The Deputy Judge had proceeded with an uncontested trial, granting default judgment to the respondents.

The Divisional Court allowed the appeal, finding that the Deputy Judge erred in law by treating the striking of pleadings as a remedy of first resort and by denying the appellant the opportunity to cure the default when it offered to pay the costs in court.

The court also found a breach of procedural fairness as the appellant was denied the opportunity to make submissions on costs.

The orders were set aside and the matter remitted to a different Deputy Judge.

The appellants appealed the dismissal of their motion for certification of a proposed class proceeding against the manufacturers of the anti-coagulant drug Pradaxa.

The appellants alleged the respondents breached a duty to warn that there was no antidote for the drug.

The motions judge found that the duty to warn was not a common issue, concluding there was no basis in fact that the failure to warn was a source of harm common across the class.

On appeal, the Divisional Court held that the motions judge did not err in principle or impermissibly weigh competing expert evidence, but correctly applied the 'some basis in fact' test using undisputed evidence.

The appeal was dismissed.

The landlord appealed a Landlord and Tenant Board decision which found that rent increases for several cottage leases were void because the landlord failed to provide the required 90 days' notice under the Residential Tenancies Act.

The Divisional Court dismissed the appeal, affirming that the leases were subject to the Act and that the tenants were entitled to a rebate for the excess rent paid in the one year prior to their applications.

The appellant landlord brought a motion to vary a single judge's order that had dismissed her four ongoing proceedings against the respondent tenants.

The single judge had dismissed the proceedings because the appellant was absent, her husband was unauthorized to act as her agent, and the proceedings were improperly perfected.

On the motion to vary, the appellant was represented by counsel, curing the representation defect.

The Divisional Court granted the motion in part, permitting the statutory appeal to continue while dismissing the other duplicative proceedings.

The appellant father appealed an order denying his application for periodic or lump sum dependant support for his minor daughter from her deceased mother's estate under the Succession Law Reform Act.

The mother had left life insurance proceeds in a bare trust for the daughter.

The application judge found the father's budget included expenses not attributable to the child and ordered funds paid into court to be administered by the Office of the Children's Lawyer.

The Divisional Court dismissed the appeal, finding no error in the application judge's consideration of the statutory factors, his assessment of the evidence, or his decision to utilize the Minor's Fund Program to manage the support payments.

The defendant employer appealed a summary judgment decision awarding the plaintiff employee damages for wrongful dismissal, mental distress, and substantial indemnity costs.

The Divisional Court upheld the wrongful dismissal damages, finding no error in the motion judge's calculation of the notice period.

However, the court set aside the $7,500 award for mental distress, finding that the employer acted in good faith and there was insufficient evidence of compensable mental distress.

The court also allowed the appeal on costs, reducing the trial costs from $35,000 to $10,000, noting the motion judge failed to properly consider proportionality and the unreasonableness of the plaintiff's bill of costs.

The plaintiff appealed an order requiring her to produce a letter sent by an accountant to her lawyer, claiming it was protected by solicitor-client privilege.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's determination that the plaintiff had given a clear, unconditional undertaking during discovery to produce the letter.

Furthermore, the court agreed that the communication did not fall within the specific categories where solicitor-client privilege attaches to third-party communications.

The applicant union sought judicial review of an Ontario Labour Relations Board reconsideration decision that dismissed its application for certification in the construction industry.

The Board had refused to allow the union to amend an incorrect application filing date, finding that the amendment would cause material prejudice to the employer.

The Divisional Court held that the Board's discretionary decision to relieve from compliance with its rules was reasonable and entitled to deference, and dismissed the application for judicial review.

The applicant sought judicial review of two Ontario Labour Relations Board decisions dismissing his complaint that his union breached its duty of fair representation under s. 74 of the Labour Relations Act.

The applicant had been terminated for safety infractions and subsequently retired and began drawing his pension without notifying the union, leading the union to withdraw his grievance.

The Divisional Court applied the reasonableness standard of review and found the Board's decision that the union had not acted arbitrarily was within the range of acceptable outcomes.

The application for judicial review was dismissed.

The appellant appealed an order discharging a Certificate of Pending Litigation (CPL) that it had obtained ex parte.

The Master had discharged the CPL on the grounds of material non-disclosure and that the appellant did not have a reasonable claim to an interest in the land based on an easement for a storm water pond.

The Divisional Court dismissed the appeal, finding that the Master did not exceed her jurisdiction, made no palpable and overriding error in finding material non-disclosure, correctly concluded that the preconditions for the easement had not been met, and did not exhibit a reasonable apprehension of bias.

The appellant appealed an order granting the respondent summary judgment, which dismissed his motion to change a previous child support order.

The appellant argued the previous order did not comply with the Child Support Guidelines.

The Divisional Court dismissed the appeal, finding that the original judge was entitled to make an order based on Minutes of Settlement even if it deviated from the Guidelines, provided reasonable arrangements were made.

To vary the order, the appellant had to show a material change in circumstances, which he failed to do.

The moving parties sought to set aside an order of a single judge of the Divisional Court, which had quashed their appeal of an interim order for payment out of court.

The single judge had quashed the appeal on the basis that the underlying order was interlocutory, requiring leave to appeal.

The Divisional Court panel dismissed the motion, finding no error of law or palpable and overriding error of fact.

The panel agreed that the underlying order, which directed an interim payment out of funds held in court pending the final determination of a shareholder dispute, did not finally dispose of the moving parties' rights and was therefore interlocutory.

The applicant brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order of a motions judge in a judicial review proceeding arising from an employment dispute with Tim Hortons Inc. The applicant argued that his wife should be added as a party, that the record of proceedings was incomplete, and that the respondents' facta should be struck.

The Divisional Court dismissed the motion, finding no error by the motions judge.

The court confirmed that the applicant's wife was not a proper party to the employment litigation, the record of proceedings was complete, and there was no basis to strike the facta or find a reasonable apprehension of bias.

The appellant mother appealed a summary judgment order finding her nine-year-old child in need of protection and granting Crown wardship with access.

The child had been apprehended five times due to the mother's serious mental health decompensations and lack of a viable safety plan.

The Divisional Court upheld the motions judge's finding that the predictable interruptions in care caused a risk of emotional harm to the child.

Finding no reviewable errors of fact or law, the court dismissed the appeal.

The respondent brought a motion for security for costs in an appeal of a family law order.

The appellant had amassed over $14,000 in unpaid costs awards across multiple proceedings and had been previously ordered not to take further steps until the costs were paid.

The court found the appeal lacked merit and that the appellant was wilfully refusing to pay costs despite claiming to have adequate assets.

The motion was granted, and the appellant was ordered to post $8,500 as security for costs before pursuing the appeal.

The appellant tenant appealed an eviction order issued by the Landlord and Tenant Board for rent arrears.

The appellant argued the Board failed to consider a previous order granting her a rent abatement and improperly proceeded in her absence due to a medical emergency.

On consent of the parties, the Divisional Court allowed the appeal, finding the Board committed a reversible error by failing to account for the prior abatement order.

The matter was remitted to the Board for a fresh hearing to be held concurrently with a new eviction application filed by the property's subsequent owner.