ODC 2018

The appellant, a personal injury lawyer, appealed the dismissal of his Small Claims Court action against the respondent, another lawyer who took over his client's file.

The respondent had given a personal undertaking to protect the appellant's account but later revoked it on the client's instructions.

The Divisional Court found that while the trial judge erred in concluding the undertaking ended when the appellant's separate action against the client was dismissed, the trial judge correctly held that the claim against the respondent was barred by the two-year limitation period under the Limitations Act, 2002.

The appeal was dismissed.

The appellants successfully appealed a Small Claims Court judgment on the basis of procedural unfairness.

The parties could not agree on costs.

The appellants sought substantial indemnity costs of $11,616.60, while the respondent argued each party should bear its own costs.

The Divisional Court awarded the appellants costs on a partial indemnity scale, fixed at $11,635.12, finding the amount proportionate and within the reasonable expectations of the parties.

The sellers appealed an order directing the release of a $50,000 deposit to the purchaser after a failed commercial real estate transaction.

The sellers argued the purchaser committed an anticipatory breach, relieving them of the obligation to tender.

The Divisional Court dismissed the appeal, upholding the application judge's finding that ongoing negotiations to extend the closing date negated any repudiation.

Because there was no accepted repudiation, the sellers were required to tender to enforce the agreement, which they failed to do.

The purchaser was therefore entitled to the return of its deposit.

The applicant, a police officer, sought judicial review of a decision by the Ontario Civilian Police Commission (OCPC) upholding a Hearing Officer's penalty requiring her to resign or face termination.

The applicant had pleaded guilty to discreditable conduct and deceit for submitting 15 fraudulent massage therapy benefits claims.

The Divisional Court dismissed the application, finding that the OCPC reasonably applied the standard of review, properly deferred to the Hearing Officer's weighing of the Krug factors and usefulness test, and reasonably concluded that the penalty of dismissal was within the range of acceptable outcomes.

The appellant appealed a decision of the Ontario Energy Board (OEB) which found that its natural gas gathering pipelines were properly assessed as 'pipe lines' under s. 25(1) of the Assessment Act for municipal tax purposes.

The appellant argued the pipelines were gathering lines, not transmission lines, and that the OEB should have applied the technical industry meaning.

The Divisional Court applied a reasonableness standard of review and upheld the OEB's decision, finding it was reasonable for the OEB to apply the ordinary meaning of the words 'transportation or transmission' and to infer from assessment roll numbers that the pipelines had been previously designated as transmission pipelines.

The moving party Estate sought leave to appeal two final discretionary cost orders that dismissed its motion for costs against the impecunious respondent and her former lawyer personally.

The motions judge had found the respondent was unable to pay and that the lawyer, who acted pro bono for a limited time, did not act frivolously or vexatiously.

The Divisional Court dismissed the motion for leave, finding no error in principle and that the motions judge's decision was not plainly wrong.

The appellants appealed a summary judgment order requiring them to pay an outstanding amount on a business loan.

The appellants argued defences of non est factum and unconscionability regarding the personal liability of the individual owner.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion that there was no genuine issue requiring a trial, given the clear structure of the loan document and warnings respecting personal liability.

The applicant brought motions for declarations of justiciability and public interest standing, a protective costs order, and an order for further records in its application for judicial review of approvals for a wind energy project.

The Ontario Energy Board (OEB) moved to quash the application as it related to its decision.

The court dismissed the applicant's motions, finding the standing and justiciability issues premature without a full evidentiary record, and denying the protective costs order and records request.

The court granted the OEB's motion to quash, finding the environmental and social issues raised by the applicant were outside the OEB's jurisdiction.

The appellant mother brought a motion to stay a final custody order pending appeal.

The trial judge had changed the child's primary residence to the respondent father due to the child's poor school attendance while in the mother's care.

The Divisional Court reviewed the test for a stay pending appeal, noting conflicting jurisprudence on the 'serious issue' threshold, but ultimately dismissed the motion.

The court found that while the appeal raised a serious issue, the mother failed to demonstrate irreparable harm or that the balance of convenience favoured a stay, emphasizing that the child's best interests were served by continuing to attend school from the father's residence.

The appellants appealed an order expunging a secretly recorded transcript of a without-prejudice meeting from their judicial review application record.

The Divisional Court dismissed the appeal, holding that a 'hint of compromise' is not an essential element of the test for settlement privilege, particularly for oral communications in a meeting convened to resolve a dispute.

The court also found that the public interest exception did not apply, as the appellants' desire to use the communications to bolster their allegations did not outweigh the public interest in encouraging settlement.

Leave to appeal the costs order was also denied.

The appellant borrowed the respondent's truck and, while impaired, caused a collision that destroyed it.

The respondent's insurer paid the property damage claim and brought a subrogated action against the appellant in Small Claims Court, arguing the appellant breached a gratuitous bailment agreement.

The trial judge allowed the claim, finding it fell within the exception in s. 263(5)(a.1) of the Insurance Act, which permits actions 'under an agreement'.

On appeal, the Divisional Court upheld the decision, confirming that a gratuitous bailment constitutes an 'agreement' for the purposes of the statutory exception, allowing the subrogated claim to proceed.

The appellants appealed the Ontario Securities Commission's decisions finding them liable for securities fraud and imposing severe sanctions, including lifetime trading bans, disgorgement, and administrative penalties.

The appellants argued that the presiding commissioner was biased, that their counsel at the hearing was incompetent and in a conflict of interest, and that the findings of fraud and the penalties were unreasonable.

The Divisional Court dismissed the appeal, finding no reasonable apprehension of bias, rejecting the fresh evidence regarding counsel's competence as it would not have affected the outcome, and concluding that the Commission's findings on fraud and sanctions were reasonable and supported by the evidence.

The applicant municipality sought judicial review of an interest arbitration award that determined wages for its firefighters.

The arbitration panel had adopted a blended approach, relying on both local police wages and freely bargained firefighter wages in a comparable municipality.

The applicant argued this approach breached procedural fairness as it was not advanced by either party and relied on unsubmitted jurisprudence, and that the award was unreasonable.

The Divisional Court dismissed the application, finding that the blended approach was not novel, the parties had the opportunity to make submissions on the relevant comparators, and the resulting award fell within a reasonable range of outcomes.

Following the dismissal of the plaintiffs' appeal and the defendant Van Dusen's cross-appeal, the successful defendants sought their costs.

Van Dusen sought costs on a partial and substantial indemnity basis, relying on an offer to settle, while the Health Unit sought partial indemnity costs.

The court awarded Van Dusen $5,125.00, reflecting partial indemnity costs up to the date of his offer and substantial indemnity costs thereafter.

The Health Unit was awarded $4,237.52 on a partial indemnity basis, with the court reducing both defendants' claimed amounts to reflect a fair and reasonable award.

The applicant, the Mayor of the Township of Springwater, sought judicial review of a decision by the Township's Compliance Audit Committee to order a second, 'forensic' audit of his election campaign finances after finding the first audit unsatisfactory.

The Divisional Court dismissed the application as premature, holding that the court should not intervene in ongoing administrative proceedings absent exceptional circumstances.

The court found that the Committee's decision to order a second audit involved the interpretation of its home statute and was not a true question of jurisdiction.

The court also limited the Committee's standing on the judicial review to jurisdictional issues and confirmed that the Committee's term had not expired.

The plaintiffs appealed a Master's order releasing over $450,000 held in trust as security to the defendants.

The funds were deposited pursuant to an undertaking in exchange for the discharge of a construction lien.

The Master had ordered the release of the funds because the plaintiffs failed to set the action down for trial within two years, reasoning that the funds were akin to security paid into court to vacate a lien under the Construction Lien Act.

The Divisional Court allowed the appeal, finding that the Master erred in conflating the discharge of a lien with vacating a lien, and that the undertaking clearly intended the funds to be held pending final resolution of the dispute.

The appellant corporation appealed an Ontario Municipal Board decision granting partial summary judgment to the respondent City in an expropriation compensation claim.

The Board had dismissed claims for damages pre-dating the announcement of the expropriation scheme, claims related to 1996 agreements, and claims of interference by statutory officials.

The Divisional Court held that the standard of review was reasonableness and that the Board had the jurisdiction to apply the Rules of Civil Procedure, including granting partial summary judgment and weighing evidence.

Finding the Board's decisions reasonable, the court dismissed the appeal.

The City of Toronto sought judicial review of a Human Rights Tribunal of Ontario decision finding it had discriminated against the respondent.

The respondent was subjected to a racial slur by another customer at a court services office.

While most City staff responded promptly and appropriately, the Tribunal found discrimination based on one clerk's inadequate response.

The Divisional Court granted the judicial review and quashed the Tribunal's decision, holding that it was unreasonable to find a poisoned environment and fix corporate responsibility on the City based on the inconsequential conduct of a single non-supervisory employee when the overall response was appropriate.

Following the dismissal of the Township's motion for leave to appeal an Ontario Municipal Board decision regarding a zoning by-law amendment, the successful responding party sought costs on a substantial indemnity basis.

The court found no reprehensible conduct by the Township to justify an elevated scale and awarded costs on a partial indemnity basis.

After considering the factors under Rule 57.01, including the principle of indemnity, complexity, and the overriding principle of reasonableness, the court fixed costs at $8,000 inclusive.