ODC 2018

The appellant appealed a decision of the Motions Judge that refused to confirm a Master's report regarding a construction contract dispute.

The Master had found an oral contract existed for construction costs but rejected the respondent's claim for a 20% management fee.

The Motions Judge set aside the report, finding no contract existed, and awarded the respondent the management fee on a quantum meruit basis.

The Divisional Court allowed the appeal, holding that the Motions Judge erred in law by treating the motion as a de novo hearing and failing to defer to the Master's factual findings.

The Master's report was confirmed.

The appellant employer appealed a summary judgment decision awarding the respondent employee common law reasonable notice damages.

The motion judge had found that the termination clause in the employment agreement was ambiguous and did not clearly rebut the presumption of common law notice.

The Divisional Court dismissed the appeal, holding that the motion judge made no palpable and overriding error in interpreting the contract.

The court found that the termination clause, when read in the context of the entire agreement, lacked the necessary clarity to limit the employee's entitlements to the statutory minimums under the Employment Standards Act.

The applicants sought judicial review of a Director's Delegate decision finding that post-accident business income from a family pharmacy should be deducted from the applicant's income replacement benefits (IRBs) under s. 7(3)(b) of the Statutory Accidents Benefits Schedule (SABS).

The applicant argued that 'earned' income required active engagement in the business.

The Divisional Court upheld the Director's Delegate's decision as reasonable, agreeing that a contextual interpretation of the SABS focuses on the profit and loss of the business rather than requiring active participation by the self-employed person.

The appellants appealed a Small Claims Court decision dismissing their action for breach of contract and negligence against the respondent garage.

The appellants had hired the respondent to fix a roof leak on their motorhome, but the leak persisted and a third party had to redo the repairs.

The Divisional Court found that the trial judge made a palpable and overriding error in concluding the respondent was not liable, as the evidence showed ongoing water damage and the respondent refused to honour its warranty.

The appeal was allowed and the respondent was ordered to refund the repair costs.

The applicant sought judicial review of a Director's Delegate decision confirming an Arbitrator's finding that he was not catastrophically impaired following a motor vehicle accident.

The applicant argued the Arbitrator erred in law by relying on surveillance evidence, the applicant's presentation at the hearing, and a psychiatrist's report.

The Divisional Court dismissed the application, finding that the issues raised were questions of fact and the weighing of evidence, not errors of law, and that the Director's Delegate's decision was reasonable.

The appellant tenant appealed a Landlord and Tenant Board order terminating his tenancy and ordering his eviction.

The appellant had been employed as a live-in superintendent, and his employment was terminated upon the sale of the building.

The Board found that under section 93 of the Residential Tenancies Act, 2006, the tenancy terminated with the employment, as there was no agreement otherwise.

The Divisional Court dismissed the appeal, finding that the issues raised by the appellant regarding the existence of a new tenancy agreement and the interpretation of the employment contract were questions of mixed fact and law, which are not reviewable on an appeal restricted to questions of law.

The appellants appealed a Master's decision refusing to set aside a Registrar's administrative dismissal of their solicitors' negligence action for delay.

The action arose from a Ponzi scheme and had been dormant for years while the appellants were involved in other proceedings.

The Divisional Court found no error in the Master's application of the Scaini test, agreeing that the appellants failed to provide a satisfactory explanation for the delay and that the respondents suffered significant prejudice.

The appeal was dismissed.

The appellants appealed a Master's decision granting partial summary judgment against them based on a 2010 personal guarantee.

The Master had found the guarantee to be a continuing guarantee covering all present and future indebtedness of the corporate borrower.

On appeal, the Divisional Court found the Master erred in law by failing to consider the surrounding circumstances, including a contemporaneous contract and promissory note, and by failing to apply the contra proferentem rule.

The Court interpreted the guarantee as limited to the initial $50,000 loan, which had already been repaid according to the rule in Clayton's case.

The appeal was allowed and the claim based on the 2010 guarantee was dismissed.

The appellant builder appealed a Licence Appeal Tribunal (LAT) decision that directed Tarion Warranty Corporation to pay the respondent homeowners $300,000 for a defective concrete foundation.

The appellant argued the LAT erred in its procedural rulings and in its assessment of the warranty claim.

The Divisional Court dismissed the appeal, finding that the LAT's decisions were reasonable and based on concessions made by the appellant during the hearing.

Costs of $10,000 were awarded to Tarion.

The appellant appealed the dismissal of her motion to certify a class action against the Hospital for Sick Children and others regarding the systemic negligence of the Motherisk Drug Testing Laboratory.

The motions judge had found that a class proceeding was not the preferable procedure because resolving the common issues of systemic negligence would not significantly advance the individual class members' claims, which required highly individualized proof of causation and damages.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the motions judge's discretionary balancing of the preferable procedure factors.

The appellants appealed a Small Claims Court decision granting judgment to the respondent for unpaid meat deliveries.

The trial judge preferred the respondent's evidence, finding that the individual appellant caused her corporations to issue cheques without adequate funds and personally guaranteed payment.

On appeal, the Divisional Court found no palpable and overriding error in the trial judge's credibility assessments or factual findings.

The court also upheld the finding of personal liability against the corporate director.

The appeal was dismissed with costs awarded on a substantial indemnity basis.

The applicant landlord sought judicial review of a Human Rights Tribunal of Ontario decision finding he discriminated against and harassed his tenants based on their religious beliefs.

The tenants, who are practicing Muslims, had requested accommodations regarding notice for apartment viewings and the removal of shoes in their prayer space.

The Divisional Court dismissed the application, finding the Tribunal's denial of an adjournment request was fair and its findings on discrimination, which were largely based on credibility assessments, were reasonable.

The court also found no error in the Tribunal's admission of the applicant's Facebook post into evidence.

The appellant appealed a Small Claims Court decision finding it did not have a valid non-possessory lien under the Repair and Storage Liens Act.

The Deputy Judge found that the invoice signed by the car owner was an acknowledgment of work done, not an acknowledgment of indebtedness as required by s. 7(5) of the Act.

The Divisional Court found no palpable and overriding error in this factual finding and dismissed the appeal.

The applicant, a disbarred lawyer, applied to the Law Society for a new licence.

After an investigation raised good character concerns, the matter was referred to a hearing.

The applicant brought a motion to quash the referral, which ultimately resulted in a consent dismissal of his licence application.

He then applied to the Divisional Court for judicial review and an order of mandamus compelling the Law Society to issue him a licence.

The Divisional Court dismissed the application, finding that mandamus was unavailable because the applicant had an alternative remedy: he could simply re-apply for a licence and establish his good character at a hearing.

The court also rejected his arguments regarding procedural unfairness.

The applicant sought judicial review of three decisions by the Investigation Committee of the Ontario College of Teachers, which refused to refer his complaints against three school administrators to discipline.

The court ruled the applicant only had standing to raise issues of procedural fairness.

The applicant argued there was a reasonable apprehension of bias and that the Committee was improperly constituted.

The Divisional Court dismissed the application, finding no denial of procedural fairness, no factual basis for bias, and that the Committee was properly constituted.

Costs of $3,500 were awarded to the respondent.

The appellant appealed an order of the Licence Appeal Tribunal directing the revocation of its liquor licence.

The revocation was based on findings that the appellant permitted a patron to remove alcohol, permitted unlawful gambling, and that the manager obstructed and assaulted an inspector.

The Divisional Court dismissed the appeal, finding no error of law in the Tribunal's assessment of the evidence or its application of the test under s. 6(2)(d) of the Liquor Licence Act.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario imposing a seven-month suspension and a 30-day preparatory period for breaching previous practice restrictions.

The appellant admitted to prescribing prohibited substances and seeing a female patient contrary to a 2011 order.

The Divisional Court dismissed the appeal, finding that the Discipline Committee's penalty was reasonable, fell within the range of acceptable outcomes, and was owed deference.

The applicant, a teacher, sought judicial review of a decision by the Investigation Committee of the Ontario College of Teachers to issue him a written caution.

The caution related to his communications with a school principal regarding his son's suspension.

The applicant argued he was acting as a parent, not a teacher, and alleged procedural unfairness and unreasonableness.

The Divisional Court dismissed the application, finding no procedural unfairness and concluding that the Committee's decision to issue a caution fell within a range of reasonable outcomes.

The moving party sought to review and set aside an order of a single judge of the Divisional Court refusing to extend the time to deliver a notice of appeal.

The underlying action was a defamation claim regarding a negative book review, which was dismissed by a jury.

The moving party delayed over two years before seeking to appeal.

The panel found that the single judge applied the correct legal test, made findings available on the evidence, and properly exercised her discretion in concluding that the justice of the case did not require an extension.

The motion was dismissed.

The defendants' motion for an extension of time to file a Notice of Appeal was previously dismissed.

The successful plaintiff sought costs of $5,169.75 on a partial indemnity basis.

The defendants argued the claim was excessive and suggested $1,500.

The court agreed the requested amount was too high and fixed costs at $2,500 all inclusive.