ODC 2018

The appellant bank appealed a Small Claims Court decision awarding the respondent $25,000 in damages for an allegedly improper power of sale.

The trial judge found the bank failed to provide proper notice under the Mortgages Act because it sent the notice of sale to the mortgaged property, knowing the mortgagors were out of the country.

The Divisional Court allowed the appeal, holding that under s. 33(1) of the Mortgages Act, a mortgagee is entitled to serve the notice of sale at the specific address provided for service in the mortgage document, regardless of whether the mortgagee knows the mortgagor is living elsewhere.

The trial judgment was set aside.

The appellant appealed a Small Claims Court decision, arguing the judge erred in finding its liquidated damages clause was a penalty.

The Divisional Court dismissed the appeal, noting the key holding below was a factual finding based on credibility that the contract never came into force.

As the contract never commenced, the liquidated damages clause did not apply, rendering the penalty finding obiter.

The court declined to provide guidance on the law of penalties, noting the uncertainty arose from Small Claims Court judges finding the clause produced inequitable results on specific facts.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, which found him incompetent, revoked his certificate of registration, and ordered him to pay costs.

The Committee found the appellant had failed to maintain the standard of practice, engaged in professional misconduct by falsifying patient charts, and lacked insight into his deficiencies.

The Divisional Court dismissed the appeal, holding that the Committee's findings on incompetence, the penalty of revocation, and the costs award were reasonable and supported by the evidentiary record.

The applicants sought judicial review of an Ontario Labour Relations Board (OLRB) decision certifying a bargaining unit for construction labourers.

The applicants argued the OLRB erred by excluding post-application date evidence regarding the composition of the bargaining unit and by finding that the two individuals working on the application date were their employees.

The Divisional Court dismissed the application, finding the OLRB reasonably applied the statutory framework and its established policy of determining bargaining rights based on the date of application, and reasonably concluded the individuals were employees of the applicants.

The appellant brought a motion to set aside the registrar's orders dismissing its Small Claims Court appeals for delay, and for an extension of time to appeal a single judge's order imposing conditions on the appeals.

The appellant had repeatedly failed to properly order trial transcripts or comply with court orders requiring security for costs and proof of transcript orders.

The Divisional Court dismissed the motion, finding the registrar had jurisdiction to dismiss the appeals when the appellant failed to comply with the conditions set by the single judge.

The request for an extension of time was dismissed as moot.

The landlord appealed a Landlord and Tenant Board decision finding they illegally locked out the tenant by failing to provide replacement keys after the rental unit was repaired following a fire.

The landlord argued the tenancy was frustrated, the remedy was miscalculated, and the Board denied procedural fairness.

The Divisional Court dismissed the appeal, finding the frustration and remedy issues were questions of mixed fact and law not subject to appeal, and the Board properly exercised its discretion regarding procedural fairness and bias allegations.

The applicant hospital sought judicial review of an interest arbitration award that granted a travel pay benefit to social workers travelling to satellite clinics.

The hospital argued it was denied procedural fairness and that the award was unreasonable due to insufficient reasons.

The Divisional Court dismissed the application, finding that the summary process under the Hospital Labour Disputes Arbitration Act provided adequate procedural fairness.

The court also held that the arbitrator's reasons, when read with the record, adequately explained the decision to award a compromise benefit based on replication principles, rendering the outcome reasonable.

The appellant general contractor appealed from summary judgments granted to two sub-subcontractors in a consolidated construction lien action.

The appellant argued the motion judge erred by granting judgment without evidence of the value of the work done by the subcontractor, misinterpreting the holdback provisions of the Construction Lien Act, and improperly placing the evidentiary burden on the appellant to establish the quantum of its liability.

The Divisional Court dismissed the appeal, finding that the liens were not restricted to the basic holdback and that the appellant failed to provide evidence of the amount it owed to the subcontractor, which was a fact within its knowledge.

The appellant insurer appealed a License Appeal Tribunal decision finding that its failure to provide compliant notices denying treatment plans under s. 38 of the Statutory Accident Benefits Schedule precluded it from relying on the Minor Injury Guideline limits.

The Divisional Court dismissed the appeal, holding that the Adjudicator reasonably interpreted s. 38(11) to mean that a non-compliant notice requires the insurer to pay for the goods and services in the specific treatment plan without the $3500 limit applying, until a compliant notice is given.

Following the dismissal of the appellant's appeal regarding an expired construction lien, the respondent sought costs of $30,470.28 on a substantial indemnity scale.

The court declined to award substantial indemnity costs, noting the respondent could have acted to mitigate prejudice from the appellant's delay.

The court also reduced the quantum, finding the time spent excessive for a narrow issue and rejecting a disbursement claim for computerized legal research that appeared to be a profit centre for counsel.

Costs were fixed at $15,000 on a partial indemnity scale.

The appellant wife appealed an order directing the sale of the jointly owned matrimonial home prior to trial.

The respondent husband had brought a motion for the sale to access his equity.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the law that a joint tenant has a prima facie right to partition and sale.

The wife failed to provide sufficient evidence that her potential equalization claims would be prejudiced by the sale, given the significant equity in the home.

The appellant appealed a Small Claims Court order that found the respondent had not breached a settlement agreement regarding a judgment debt.

The appellant argued the deputy judge lacked jurisdiction, unreasonably denied a mid-hearing adjournment request, and erred in finding no breach.

The Divisional Court dismissed the appeal, holding that the Small Claims Court has province-wide jurisdiction, the refusal of the adjournment was a proper exercise of discretion, and there was no error in the finding that the settlement agreement remained binding.

The appellant appealed a Licence Appeal Tribunal decision dismissing her application for non-earner benefits.

The LAT had found her application void because she failed to elect between non-earner and income replacement benefits before commencing the proceeding, as required by section 35 of the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, finding no error of law in the LAT's determination that an election was required and that a dispute could not exist until the insurer had made a decision following that election.

The appellant appealed a Small Claims Court decision dismissing his claim for breach of contract and granting the respondent banquet hall's counterclaim for unpaid cancellation fees.

The appellant argued the trial judge made factual errors and misapplied the law of mitigation by not requiring the respondent to prove it took active steps to re-book the hall.

The Divisional Court dismissed the appeal, finding any factual errors were inconsequential.

Applying the Supreme Court's decision in Southcott Estates, the court held that the onus of proving a failure to mitigate, including that a profitable substitute could have been found, rests entirely on the party alleging the failure.

The applicant sought judicial review of a Licence Appeal Tribunal decision which found her claim for attendant care and housekeeping benefits was statute-barred.

The applicant argued that the limitation period should not begin to run until she was found to be catastrophically impaired, relying on the doctrine of discoverability.

The Divisional Court dismissed the application, holding that the limitation period under the Statutory Accident Benefits Schedule is a 'hard' limitation period triggered by the insurer's clear and unequivocal refusal to pay the benefit, regardless of whether the claimant is aware they have a claim at that time.

The appellant insurer appealed a decision of the Licence Appeal Tribunal finding that the respondent was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The respondent was injured while 'car surfing' on the rear bumper of a moving vehicle.

The Divisional Court dismissed the appeal, upholding the adjudicator's application of the purpose test.

The court found that while reckless, the vehicle was being used for its normal purpose of transportation, and thus the incident constituted an accident.

The self-represented plaintiff brought a motion to set aside a Registrar's order dismissing her motion for leave to appeal a summary judgment that dismissed her $5,000,000 solicitor negligence claim.

The Divisional Court held that it lacked jurisdiction to hear the appeal, as section 19(1.2) of the Courts of Justice Act limits its jurisdiction to final orders for amounts not exceeding $50,000.

Because the court lacked jurisdiction, the motion to set aside the Registrar's order was dismissed.

No costs were awarded due to the plaintiff having been misdirected by court staff regarding the proper appellate court.

The defendants brought a motion for an extension of time to file a Notice of Appeal from a Small Claims Court judgment awarding the plaintiff damages for breach of a home renovation contract.

The defendants received the decision late but still had 19 days to file an appeal within the deadline, yet failed to do so without explanation.

The court dismissed the motion, finding no reasonable explanation for the delay and no merit to the proposed appeal.

The appellant father appealed a trial judge's decision on a motion to change a final custody order.

The trial judge had found a material change in circumstances but ordered that the parties continue to have joint custody of the child with a parallel parenting regime, and that the child's primary residence remain with the respondent mother.

The father argued he should have been granted sole custody.

The Divisional Court dismissed the appeal, finding that the trial judge made no errors of law, her findings of fact were supported by the evidence, and she made no palpable and overriding error in determining that joint custody remained in the child's best interests.

The self-represented appellant brought a motion to set aside an order of the motion judge, which had dismissed his motion to set aside the Registrar's administrative dismissal of his motion for leave to appeal.

The underlying action involved allegations of professional negligence against his former counsel.

The Divisional Court found that the motion judge correctly applied the test from Sickinger, which requires consideration of the merits of the appeal.

Finding no error in the motion judge's conclusion that the proposed appeal lacked merit, the Divisional Court dismissed the motion with costs.