ODC 2017

The parties resolved their appeal by entering into minutes of settlement to proceed by way of a motion to change.

The court determined the costs of the appellant's motion for a stay pending appeal and the appeal itself.

Finding divided success on the motion to stay and noting the appellant's unreasonable conduct in denying court-ordered access, the court awarded the appellant modest costs of $5,000, payable by the respondent in monthly installments.

The moving party sought leave to appeal a $7,500 costs order made against him following a motion to change child support.

The moving party argued the motion judge failed to consider proportionality, his ability to pay, and wasted expenditures.

The Divisional Court dismissed the motion for leave, finding no error in principle or misapprehension of facts by the motion judge, and awarded $750 in costs to the responding party.

The appellant appealed a Small Claims Court decision dismissing his medical negligence claim against the respondent physicians.

The appellant alleged he was misdiagnosed with Parkinson's disease but failed to provide an expert report establishing a breach of the standard of care.

The appellant attempted to rely on letters from his treating physician, but the court found these letters only addressed the diagnosis and did not opine on the standard of care.

The Divisional Court upheld the dismissal under Rule 12.02 of the Small Claims Court Rules, concluding the action had no prospect of success without expert evidence.

The tenant appealed a Landlord and Tenant Board order terminating her tenancy for rent arrears.

The tenant argued the landlord was estopped from charging market rent due to a letter suggesting she pay a lower rent-geared-to-income amount while they attempted to convert her unit.

The Divisional Court dismissed the appeal, finding the estoppel issue was not raised before the Board, the letter was not a clear and unequivocal promise, and the Board reasonably interpreted its home statute regarding jurisdiction over rent subsidies and service of notices.

The appellant brought a motion to extend the time to perfect an appeal.

A threshold jurisdictional issue arose regarding whether the appeal properly lay to the Divisional Court or the Court of Appeal under s. 19(1.2) of the Courts of Justice Act.

The court interpreted the term 'single payment' in the statute, concluding that it refers to lump sum payments as opposed to periodic payments, and that multiple lump sum payments in an order do not strip the Divisional Court of jurisdiction provided the amounts fall under the $50,000 threshold.

The court found it had jurisdiction to hear the appeal and granted the extension of time.

The appellant insurer appealed an arbitrator's decision dismissing its pre-hearing motion for documentary disclosure in an indemnity dispute.

The dispute arose after a pedestrian was struck by a car insured by the appellant and claimed statutory accident benefits from the respondent insurer under his father's motorcycle policy.

The appellant sought disclosure regarding how the claim came to be adjusted under the motorcycle policy rather than the stepmother's auto policy.

The Divisional Court allowed the appeal in part, finding the arbitrator's decision unreasonable because he conflated the statutory schemes for priority and indemnity disputes and improperly decided the issue of the claimant's choice of insurer based on an incomplete evidentiary record.

The court ordered the respondent to produce documents related to the claimant's choice of policy.

The applicant brought an urgent application for judicial review regarding his daughter's denial of a place in a high school film program.

The applicant, acting as litigation guardian, was a suspended lawyer and sought to represent his daughter without retaining counsel.

The Divisional Court dismissed the application on a preliminary issue, holding that under Rule 7.05(3) of the Rules of Civil Procedure, a litigation guardian must be represented by a lawyer, and the court has no authority to relieve against this strict requirement.

The applicant brought a motion for an interlocutory injunction to maintain his rent-geared-to-income housing subsidy pending the outcome of his application for judicial review.

The respondent municipality had terminated the subsidy because the applicant failed to report changes to his income within the required 30-day period.

Applying the RJR MacDonald test, the court found that while there was a serious issue to be tried, the applicant failed to establish irreparable harm, as his fears of eviction were speculative and any financial loss could be compensated in damages.

The balance of convenience favoured the municipality, which had a long waiting list for social housing.

The motion was dismissed.

The landlords brought a motion to quash the tenants' appeal of a Landlord and Tenant Board order terminating their tenancy for persistent late payment of rent.

The tenants' appeal automatically stayed the eviction.

The Divisional Court found that the tenants' grounds of appeal were merely attempts to challenge the Board's factual findings and did not raise any genuine questions of law.

The court concluded the appeal was manifestly devoid of merit, quashed the appeal, and lifted the stay of the eviction order.

The applicants sought judicial review of a Small Claims Court judgment awarding them a reduced amount for motor vehicle storage charges.

The Divisional Court dismissed the application, holding that judicial review cannot be used as a surrogate right of appeal where the legislature has expressly restricted appeal rights for Small Claims Court decisions under $2,500 pursuant to section 31 of the Courts of Justice Act.

The appellant condominium corporation appealed a Small Claims Court decision ordering it to reimburse the respondent unit owner for costs related to a plumbing blockage.

The trial judge had found the condominium failed to definitively prove the respondent's unit caused the blockage.

The Divisional Court allowed the appeal and ordered a new trial, finding the trial judge erred by reversing the burden of proof, applying a standard of absolute proof rather than a balance of probabilities, and failing to consider key video evidence and accord deference to the condominium board.

The applicants, students of a recently closed Catholic elementary school, brought a motion for an interlocutory injunction to require the respondent school board to re-open the school pending their application for judicial review.

The court dismissed the motion, finding that the applicants would not suffer irreparable harm from the inconvenience and disruption of relocating to new schools.

Furthermore, the balance of convenience favoured the respondent, as the school had already been closed, teachers and students reassigned, and there was insufficient time to reverse the process before the start of the school year.

The moving party brought a motion to quash an appeal of an order dismissing a motion to discharge a construction lien.

The moving party argued that the order was interlocutory and therefore unappealable under s. 71(3) of the Construction Lien Act.

The Divisional Court agreed, finding that the dismissal of the motion to discharge the lien did not finally dispose of the lien's validity, as the moving party would still have to prove the lien at trial.

The motion to quash was granted and the appeal was dismissed for want of jurisdiction.

The applicant municipality brought an application for a declaration that the respondent Ombudsman lacked jurisdiction to investigate its Election Compliance Audit Committee and Property Standards Committee for alleged violations of open meeting requirements.

The Divisional Court held that neither committee falls within the definition of a 'local board' under the Municipal Act, as they are independent adjudicative bodies whose purposes are inconsistent with a municipality's power to dissolve a local board.

The Court granted a declaration that the Ombudsman has no jurisdiction to investigate these committees, but declined to grant a broader declaration regarding all quasi-judicial tribunals or to quash the Ombudsman's non-binding report.

The Ontario Children's Lawyer (OCL) sought leave to appeal a $20,000 costs order made against it following a custody trial.

The Divisional Court first determined it had jurisdiction to hear the appeal, as the costs order itself constituted a 'single payment' under $50,000 pursuant to s. 19(1.2)(a) of the Courts of Justice Act.

The court granted the OCL an extension of time to file its notice of motion, finding the brief delay reasonable.

Finally, the court granted leave to appeal, concluding that whether a court-appointed third party like the OCL has an obligation to seek court intervention when a party refuses to cooperate is a matter open to serious debate and of general public importance.

The father of a child in care brought motions to validate the late delivery of his notice of appeal, to stay the trial judge's order making the child a Crown ward with no access, and for access pending appeal for himself and the child's aunt.

The society brought a cross-motion for summary judgment dismissing the appeal.

The aunt sought to be added as a party.

The Divisional Court granted the father's motion to extend the time to appeal, finding no prejudice to the child.

The court dismissed the society's motion for summary judgment, holding that the rules do not permit summary judgment on appeals to the Divisional Court.

The court declined to add the aunt as a party or stay the trial decision, and denied the father access pending appeal.

However, the court granted the aunt access to the child pending the appeal, finding it to be in the child's best interests.

The appellant, who had been found to be a party under a disability and had the Public Guardian and Trustee appointed as his litigation guardian, attempted to appeal four consent judgments entered into on his behalf.

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

The court held that under Rule 7.01(1), a proceeding must be commenced by a litigation guardian, and there is no jurisdiction to entertain a proceeding directly commenced by a person under a disability.

The appeals were dismissed.

The moving parties sought leave to appeal an order awarding substantial indemnity costs against them arising out of a contempt motion.

The Divisional Court dismissed the motion for leave to appeal.

The Court took the opportunity to provide guidance to the profession regarding costs on motions for leave to appeal under the newly amended Rules of Civil Procedure, stating that the normal expectation for costs on such motions will be in the range of $5,000.

The Court fixed the costs of this motion at $5,000 payable by the moving parties, noting that the voluminous materials filed were unnecessary for the narrow issue to be determined.

The tenant appealed an order of the Landlord and Tenant Board that dismissed her application to set aside an ex parte eviction order.

The ex parte order was issued after the tenant breached a prior consent order regarding rent arrears.

The Divisional Court dismissed the appeal, finding that it raised no question of law and that the tenant could not use section 82 of the Residential Tenancies Act to re-litigate issues already resolved by the consent order.

No costs were awarded due to the tenant's financial hardship and personal circumstances.

The applicants successfully defended a Small Claims Court action regarding a real estate misrepresentation but were awarded no costs by the Deputy Judge, who provided no reasons for the costs decision.

The applicants sought leave to appeal the costs order to the Divisional Court.

The Divisional Court dismissed the motion for leave to appeal, finding that although the absence of reasons was unhelpful, the record demonstrated a sound basis for the Deputy Judge's exercise of discretion, as the applicants had committed a misrepresentation even though the plaintiff failed to prove reliance.