ODC 2017

The applicant brought a motion for a stay of an arbitrator's order which held that an arbitration arising from a 1990 motor vehicle accident could not proceed because the applicant had signed a full and final release.

The applicant sought the stay pending an application for judicial review.

The Divisional Court applied the RJR MacDonald test and found that while there was a serious issue to be tried, the applicant failed to establish irreparable harm or that the balance of convenience favoured a stay.

The court noted that the delay was largely attributable to the applicant and that financial compensation would ultimately be available if successful.

The motion for a stay was dismissed.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board consent eviction order.

The tenant had obtained an automatic stay of eviction by filing the appeal, but abandoned the appeal shortly before the motion hearing.

The Divisional Court found the appeal was manifestly devoid of merit and an abuse of process, noting the tenant was 'gaming the system'.

The court quashed the appeal, lifted the stay, ordered immediate vacant possession, and awarded costs to the landlord.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his complaint that police officers discriminated against him based on race when they arrested and charged him following a neighbour dispute.

The applicant argued the HRTO's decision was unreasonable, alleging the police response was disproportionate and influenced by racial stereotypes, and that the HRTO showed bias in its credibility assessments and drawing of adverse inferences.

The Divisional Court dismissed the application, finding the HRTO applied the correct legal principles, its credibility findings were entitled to high deference, and its overall decision was reasonable.

The moving parties sought a stay of execution of an order vacating a certificate of pending litigation (CPL) on one property and a restraining order on another property, pending their motion for leave to appeal.

The court applied the three-part test for a stay.

The court found that the moving parties failed to establish a serious question to be tried that would meet the test for leave to appeal, and failed to demonstrate irreparable harm.

The motions for a stay and a restraining order were dismissed.

The appellant faced criminal charges for sexual assault and was also sued civilly by the complainant.

In the civil action, the appellant obtained discovery evidence, which his civil counsel shared with his criminal counsel to impeach the complainant at the criminal trial.

The motion judge ruled that the appellant needed court leave under rule 30.1(8) to use the evidence for impeachment and that sharing it with criminal counsel breached the deemed undertaking.

The Divisional Court allowed the appeal, holding that rule 30.1(6) permits the use of discovery evidence for impeachment without prior court authorization, and that sharing the evidence with legal advisors does not breach the undertaking.

The appellant mother appealed a final order dismissing her application to relocate her daughter to Ottawa and transferring primary care to the respondent father.

The mother argued the motions judge made errors of fact, law, and mixed fact and law, including misapprehending the requirement for consent to relocate and failing to adequately analyze the child's best interests.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors.

The motions judge correctly applied the Gordon v. Goertz framework, properly considered the mother's past conduct regarding communication, and reasonably concluded that transferring primary care to the father, who offered to relocate to Kingston to minimize disruption, was in the child's best interests.

The appellant appealed a Small Claims Court decision ordering it to pay $3,600.77 for unpaid electrical and excavation work.

The debts had been assigned to the respondent debt buyer.

The appellant argued the trial judge erred in finding a contract existed, accepting hearsay evidence, and awarding costs.

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

The court also refused to grant leave to raise new arguments about the validity of the assignments, noting it would cause substantial prejudice to the respondent.

The General Manager of OHIP sought judicial review of a decision by the Physician Payment Review Board to hold a hearing regarding the denial of a physician's billing claims.

The General Manager argued the Board lacked jurisdiction to review denials made under s. 18(3) of the Health Insurance Act.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify judicial intervention before the Board had fully considered the jurisdictional issue and the true basis for the claim denials.

The landlord appealed a decision of the Landlord and Tenant Board denying its request to review a rent abatement order made in its absence.

The landlord claimed it did not receive the notice of hearing or the order.

The Board found this unlikely, as the documents were mailed to the correct corporate address and not returned, inferring a lack of diligence by the landlord's head office staff.

The Divisional Court dismissed the appeal, holding that the Board's factual finding of lack of diligence was supported by evidence and did not constitute an error of law.

The applicant sought an extension of time to bring a motion for leave to appeal a temporary order that released $90,000 to each party from the proceeds of the sale of the matrimonial home.

The applicant failed to serve her motion for leave within the required 15 days.

The court applied the test for an extension of time under Rule 3.02 and considered the merits of the proposed appeal under Rule 62.02(4)(b).

The court found that the applicant did not demonstrate a clear intention to appeal within the time limit, the respondent would be prejudiced by further delay, and there was no good reason to doubt the correctness of the temporary order.

The motion for an extension of time was dismissed.

The applicant hospital sought judicial review of an arbitral award which concluded that physician assistants fell within the scope of the paramedical bargaining unit under the collective agreement.

The hospital argued the arbitrator exceeded his mandate and applied an overly broad definition of 'paramedical'.

The Divisional Court dismissed the application, finding that the arbitrator's interpretation of the collective agreement was reasonable, grounded in the ordinary meaning of the word, the parties' practice, and labour jurisprudence, and did not improperly sweep in other excluded employee groups.

The appellant developer appealed a Small Claims Court decision finding it breached its duty of fair dealing by refusing to reduce the final sale price for the respondent's commercial condominium units, despite doing so for other purchasers.

The appellant argued the trial judge introduced a novel theory of liability not expressly pleaded by the self-represented respondent.

The Divisional Court dismissed the appeal, holding that the appellant knew the substantive case it had to meet and that the trial judge correctly applied the Supreme Court of Canada's decision in Bhasin v. Hrynew regarding the duty of honest performance.

The applicant filed an application for judicial review against the Mayor of Toronto, a City Councillor, and the Integrity Commissioner, seeking damages for alleged bullying and harassment.

The court issued a notice under Rule 2.1.01(3) considering dismissal of the application as frivolous, vexatious, or an abuse of process.

Finding that damages are not available on judicial review and the application lacked an identifiable decision to review, the court dismissed the application under Rule 2.1.01(1).

The appellants appealed a decision of the Social Benefits Tribunal which upheld the Director's finding that the appellant was not financially eligible for ODSP income support due to her receipt of long-term disability insurance benefits.

The Divisional Court dismissed the appeal, finding that the Tribunal's decision involved a question of mixed fact and law, which is not appealable under the ODSPA, and that the Tribunal's conclusion was reasonable.

The applicant sought judicial review of a decision by the Financial Services Tribunal denying his request to retroactively purchase membership in his employer's pension plan.

The Divisional Court dismissed the application primarily because the applicant failed to exhaust his statutory right of appeal under the Pension Benefits Act and no special circumstances justified bypassing that route.

The Court also found that the application would fail on the merits, as the Tribunal's findings of fact were supported by evidence and its discretionary decision was reasonable.

The appellant appealed an order requiring him to sell his interest in a jointly owned property to the respondent.

The parties had previously been ordered to list the property for sale, but the appellant repeatedly frustrated the sale process, including refusing to close after making the highest bid.

The Divisional Court dismissed the appeal, finding that the motion judge's order was not a forced sale under the Partition Act, but rather a necessary step to implement and enforce a previous unappealed order for sale.

The applicant, a high school student, sought urgent judicial review of decisions by her school board and athletic committee denying her eligibility to play on the school basketball team for one year following a transfer.

The applicant argued she transferred due to bullying and that the decisions were biased and procedurally unfair.

The Divisional Court found it had jurisdiction to hear the urgent application but dismissed it on the merits, concluding there was no reasonable apprehension of bias or breach of procedural fairness in the administrative decision-making process.

The appellant appealed a Small Claims Court trial judgment dismissing her action against the respondent for trespass.

Prior to trial, a settlement had been reached and the respondent paid the appellant $18,000.

The settlement was later vacated by court order, which required the appellant to return the $18,000 before proceeding to trial.

The appellant proceeded to trial without repaying the funds and subsequently appealed the trial decision.

The Divisional Court stayed the appeal, ordering that the stay would become permanent if the appellant failed to repay the $18,000 within 30 days, citing the need to enforce compliance with court orders.

The appellant lawyer was found guilty of professional misconduct by a Law Society Hearing Panel for failing to advise lender clients of material facts in real estate transactions, but was cleared of mortgage fraud.

The Law Society appealed to the Appeal Panel, which found the Hearing Panel erred in law in its definition of mortgage fraud and ordered a new hearing.

The lawyer appealed to the Divisional Court.

The majority of the Divisional Court dismissed the appeal, finding the Appeal Panel reasonably concluded that the Hearing Panel erred by focusing on the lawyer's subjective belief about the honesty of his conduct rather than objectively assessing whether his failure to disclose constituted dishonest conduct under the Théroux test for fraud.

A dissenting judge would have allowed the appeal.

The appellant appealed a Small Claims Court judgment finding her liable for defamation after she made a false sexual assault complaint to the police against the respondent.

On appeal, she sought to introduce a Criminal Injuries Compensation Board decision as fresh evidence and argued the trial judge relied on gender stereotypes and misapplied the test for malice.

The Divisional Court dismissed the appeal, finding the fresh evidence did not meet the Palmer test, the trial judge properly assessed credibility based on inconsistencies rather than stereotypes, and the finding of express malice was supported by the evidence.