ODC 2018

The appellant appealed a Licence Appeal Tribunal decision that found his injuries from a motor vehicle accident fell within the Minor Injury Guideline (MIG) and denied two treatment plans for assessments.

The Divisional Court held that the adjudicator made no error of law and reasonably concluded that the appellant failed to meet his burden of proving entitlement to benefits beyond the MIG cap.

The appeal was dismissed.

The appellant, a former recipient of income support, appealed the Director's decision to pay his medical transportation benefit directly to a taxi company.

The Social Benefits Tribunal found it lacked jurisdiction to hear the appeal under s. 21(2) of the Ontario Disability Support Program Act, 1997.

On appeal to the Divisional Court, the court held that regardless of whether extended health benefits constitute income support, s. 21(1) limits appeals to decisions affecting eligibility or the amount of benefits.

As the direct payment decision affected neither, the Tribunal's decision was reasonable and the appeal was dismissed.

The Office of the Children's Lawyer (OCL) appealed a trial judge's decision holding it jointly and severally liable for 20% of the costs awarded against the mother in a custody and access dispute.

The trial judge had criticized the OCL for failing to seek court orders to compel the father and child to cooperate with its investigation.

The Divisional Court allowed the appeal, finding that the trial judge erred in principle by applying the wrong threshold for awarding costs against a non-party.

The Court held that costs against the OCL should only be awarded in exceptional circumstances involving bad faith or patently unreasonable, unfair, or indefensible conduct, which was not present in this case.

The applicant sought a declaration that a Fire Marshal guideline regarding fire alarm audibility was invalid and an injunction prohibiting its enforcement.

The applicant had previously appealed an inspection order to the Fire Marshal and then to the Fire Safety Commission, but sought judicial review before the Commission hearing proceeded.

The Divisional Court dismissed the application for judicial review as premature, finding no exceptional circumstances or true question of jurisdiction that would justify bypassing the ongoing administrative process.

The appellant appealed a trial judge's decision on a threshold motion in a motor vehicle accident case, which found her injuries did not meet the statutory threshold under the Insurance Act.

The respondent cross-appealed the trial judge's costs award, arguing the threshold decision should have been considered in the costs analysis.

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

The court granted the respondent's cross-appeal on costs, applying the recent decision in Saleh v. Nebel, and remitted the costs issue to the trial judge.

The appellant charities in two related class actions appealed a case management judge's decision declining to continue a protective order over the identities of potential class members who opted out.

The appellants argued the judge failed to consider whether the deemed or implied undertaking rules applied to this information.

The Divisional Court allowed the appeal, holding that the deemed undertaking rule under Rule 30.1.01(3) of the Rules of Civil Procedure applies to the names and numbers of opt-outs disclosed by the plaintiffs' counsel to the defendants' counsel, as this information is relevant and discoverable.

The applicant employer sought judicial review of two Grievance Settlement Board (GSB) decisions reinstating two Transit Safety Officers who were discharged for misconduct.

The GSB had found that the employer breached a sunset clause by considering expired disciplinary records when deciding to terminate the employees.

Relying on the Molson's case, the GSB concluded it was bound to void the discipline entirely and reinstate the employees with full compensation.

The Divisional Court granted the applications for judicial review, holding that the GSB erred by failing to consider all relevant circumstances before applying Molson's and by failing to consider its statutory discretion to substitute a penalty under s. 48(17) of the Labour Relations Act.

The decisions were quashed and remitted to the GSB.

The plaintiffs sought a Mareva injunction without notice against the defendants, alleging a fraudulent scheme involving the illegal dumping of industrial waste on their property.

The motion judge declined to grant the injunction without notice, citing delay and lack of direct evidence of asset dissipation.

The plaintiffs sought leave to appeal this decision to the Divisional Court.

The Divisional Court granted leave to appeal and allowed the appeal, finding that in cases of fraud, the risk of dissipation can be inferred from the circumstances of the fraud itself.

The court granted the Mareva injunction without notice against the remaining defendants, emphasizing the importance of this remedy in protecting victims of serious fraud.

The applicant, an Ontario resident, was injured in an ATV accident in British Columbia.

He applied for statutory accident benefits in Ontario.

The insurer denied the claim on the basis that the ATV was not an 'automobile' under the Statutory Accident Benefits Schedule because it was not required to be insured in British Columbia.

The applicant sought judicial review of the FSCO Director's Delegate's decision upholding the denial.

The Divisional Court dismissed the application, finding it was reasonable to apply British Columbia legislation to determine whether the ATV required insurance, and thus the ATV did not meet the definition of an automobile.

The landlord appealed a trial decision finding that the tenant properly terminated a residential lease and that the landlord was not entitled to charge administrative fees as part of common area and maintenance (CAM) expenses under a commercial lease.

The Divisional Court dismissed the appeal, holding that the tenant provided notice in the manner required by the written terms of the lease, and that there was no express or implied term authorizing the landlord to unilaterally charge administrative fees.

The trial judge's interpretation of the lease was subject to deference and revealed no palpable and overriding error.

The appellant, Deltro Electric Ltd., appealed a decision of the Electrical Safety Authority Review Panel confirming the application of a 'Wattage Based' inspection fee to its solar farm installations.

The appellant argued that the fee was invalidly enacted due to procedural defects, that certain projects were exempt from the Electrical Safety Code, and that the use of MC4 connectors did not constitute an electrical installation requiring inspection.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding that the ESA had cured any initial procedural defects by the time the fees were applied, that the projects required ESA connection authorizations under the Distribution System Code, and that connecting PV panels with MC4 connectors constituted work on an electrical installation subject to inspection.

The National Bank of Canada appealed an order dismissing its motion to set aside an ex parte order that paid surplus tax sale proceeds to the Family Responsibility Office (FRO).

The Bank, as a first and second mortgagee, had priority at law over the FRO, an execution creditor.

The Divisional Court allowed the appeal, finding that the motion judge erred in interpreting s. 380 of the Municipal Act, 2001.

The Court held that the Bank's failure to apply for the funds did not extinguish its legal priority, and the FRO was not entitled to the proceeds.

The FRO was ordered to repay the funds to the Bank.

The appellant homeowner appealed a Small Claims Court judgment awarding the respondent contractor $12,528 for home renovation work.

The homeowner argued the trial judge failed to consider expert engineering evidence and witness testimony regarding significant deficiencies in the contractor's work.

The Divisional Court agreed, finding the trial judge made a palpable and overriding error by ignoring relevant evidence of defective workmanship and remedial costs.

The court substituted its own decision, finding the cost to remedy the deficiencies exceeded the amount owed to the contractor, and dismissed the contractor's claim entirely.

The applicants sought judicial review of an interlocutory decision made by the Normal Farm Practices and Protection Board regarding its internal processes.

The Divisional Court dismissed the application, holding that judicial review of interim orders is only available in exceptional circumstances to prevent fragmentation and piecemeal proceedings.

The court found no exceptional circumstances justifying intervention before the board's final decision.

Costs were awarded to the respondent receiver in the fixed amount of $2,000.

The Conservative Party of Canada (CPC) brought a motion to quash an application for judicial review filed by a candidate in its leadership contest.

The candidate sought review of the CPC's decision to fine him $50,000 for allegedly leaking a membership list.

The CPC argued the court lacked jurisdiction because judicial review is limited to state action, that political parties lack standing as respondents, and that the application was premature.

The court dismissed the standing and prematurity arguments, finding that unincorporated associations can be subject to judicial review and that the internal appeal process was potentially biased.

However, noting conflicting jurisprudence on whether judicial review requires state conduct, the court adjourned the jurisdictional issue to be determined by a full panel of the Divisional Court.

The appellant appealed a Small Claims Court judgment finding it liable for breach of contract.

The appellant had ordered shrimp from Panama through the respondent, but the Canadian Food Inspection Agency denied the import permit.

The appellant refused to pay for the shipment, arguing frustration of contract.

The Divisional Court dismissed the appeal, upholding the trial judge's finding that the permit denial was foreseeable and that the appellant, as the importer, bore the responsibility and risk of obtaining approval before placing the order.

The applicant, a former Justice of the Peace removed from office for misconduct, brought a motion under Rule 59.06 to set aside a previous Divisional Court order that had dismissed his judicial review application.

The applicant argued he was denied a fair hearing and alleged ineffective assistance by his former counsel.

The court dismissed the motion, emphasizing the principle of finality in litigation and finding that the applicant's complaints did not fit within the narrow exceptions of Rule 59.06 for fraud or newly discovered facts.

The appellant brought a motion to consolidate his motion for reconsideration of a security for costs order with his appeal and judicial review, and to dispense with certain appeal materials.

The court declined to consolidate the proceedings, finding that doing so would render the security for costs order moot and defeat the purpose of Rule 61.06.

The court also found the request to dispense with appeal books premature, but granted an extension for the respondents to file their materials for the reconsideration motion.

On consent, the court stayed the security for costs order and the underlying defamation proceedings pending the exhaustion of appeals.

The applicant sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing his discrimination application at a summary hearing.

The applicant alleged he was not interviewed for a municipal job due to discrimination based on race and origin, and that the job posting's preference for 'lived immigration experience' was discriminatory.

The Divisional Court found the HRTO's conclusion that the applicant failed to show his non-Canadian experience was disregarded was reasonable.

The Court also rejected the applicant's claims of procedural unfairness and bias by the HRTO.

The application for judicial review was dismissed.

The appellant insurer sought judicial review of a decision upholding an arbitrator's finding that the respondent insured was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The insured, while using his vehicle as a taxi, was assaulted by a passenger, pushed, and slipped on ice while attempting to close the vehicle's door.

The Divisional Court dismissed the application, finding it was reasonable for the arbitrator and Director's Delegate to conclude that the incident arose out of the ordinary use or operation of an automobile and that the use or operation was a direct cause of the impairment, as the assault was not an intervening act that broke the chain of causation.