ODC 2019

The applicant father brought an urgent, without-notice motion for a stay pending appeal of an order granting the respondent mother leave to travel to Sudan with their ten-year-old child over the holidays.

The court applied the three-part test for a stay and found that the applicant failed to demonstrate a strong case on appeal, that the alleged irreparable harm was highly speculative, and that the balance of convenience favoured the child's best interests in taking the trip.

The motion for a stay was dismissed.

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the respondent owner's notice of termination triggered the 45-day deadline for the appellant to file its claim for lien, equating termination with 'abandonment' under the Construction Lien Act.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, and an owner's unilateral termination does not automatically constitute abandonment by the contractor.

The claim for lien was therefore registered in time.

The appellant tenant appealed a Landlord and Tenant Board decision dismissing her application for compensation for belongings allegedly removed by her landlords.

The Board found that the tenant failed to prove her damages and failed to mitigate her losses by refusing to retrieve her belongings, which were still on the property.

The Divisional Court dismissed the appeal, holding that the Board did not err in declining to address the landlords' alleged unlawful entry or in not compelling the landlords to testify, as the tenant's failure to prove damages was fatal to her claim.

The Court also held that the Board's conclusion on mitigation was an unappealable finding of fact.

The appellant nurse appealed a Discipline Committee decision finding her guilty of professional misconduct for failing to comply with an order to complete a remediation program.

She argued she was denied natural justice because she could not challenge the underlying allegations.

The College cross-appealed, arguing the conduct should have been found 'dishonourable' and a longer suspension imposed.

The Divisional Court dismissed both the appeal and cross-appeal, holding that the appellant could not collaterally attack the underlying order, and that the Discipline Committee's findings on misconduct and the two-month suspension were reasonable.

The appellant appealed a decision interpreting the termination clause of an employment agreement.

The motion judge found the agreement unambiguous, holding that a three-week minimum notice period only applied when a release was provided, and otherwise, employment standards legislation applied.

The Divisional Court dismissed the appeal, deferring to the motion judge's interpretation as there was no palpable and overriding error or extricable error of law.

The appellant appealed a Small Claims Court judgment awarding the respondent damages for a roofing contract dispute.

The appellant argued the trial was procedurally unfair due to the deputy judge's frequent interventions and comments, which gave rise to a reasonable apprehension of bias.

The Divisional Court agreed, finding that the deputy judge's well-intended activism became a reversible error by taking over the trial and improperly limiting the self-represented appellant's cross-examination.

The appeal was allowed and a new trial ordered before a different deputy judge.

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the owner's notice of termination constituted 'abandonment' of the contract under s. 31(2) of the Construction Lien Act, triggering the 45-day period to register a lien.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, either subjectively or objectively.

A unilateral termination notice by the owner does not force abandonment by the contractor, especially where the contractor remains ready, willing, and able to complete the work and settlement discussions are ongoing.

The plaintiff appealed an order dismissing her motion to amend her statement of claim to add a utility company as a defendant after the expiry of the presumptive two-year limitation period.

The plaintiff alleged she walked into a light pole and initially sued the municipality, only later discovering the utility company owned the pole.

The Divisional Court found the Master erred in law by failing to make specific findings on when the plaintiff actually knew or reasonably ought to have known of her claim against the utility company.

The Court set aside the Master's order and granted leave to add the utility company as a defendant, noting that a trial was required to determine the limitations issue.

The appellant rented a unit and subsequently rented a bedroom in that unit to the respondent.

The appellant locked the respondent out of the unit without an eviction order.

The Landlord and Tenant Board found the respondent was a subtenant and awarded damages for unlawful eviction.

On appeal, the Divisional Court found the Board erred in its application of the subtenancy provisions, as the appellant had not vacated the unit for a specified term.

However, the Court upheld the Board's remedial order, finding that the Residential Tenancies Act still applied because the appellant met the broad statutory definition of a landlord and the respondent met the definition of a tenant.

The tenant appealed a procedural order of the Landlord and Tenant Board directing that the matter proceed in writing.

The tenant, who had requested accommodation for serious disabilities, objected to the tight timeline for submitting materials.

The Divisional Court dismissed the appeal, finding the Board's decision to proceed in writing was reasonable and procedurally fair.

However, the court issued directions establishing a new, extended schedule for the exchange of evidence and written arguments.

The appellant appealed a decision of the Health Professions Appeal and Review Board (HPARB) denying him hospital privileges.

The Divisional Court found that HPARB reasonably addressed alleged procedural irregularities and correctly applied the statutory test under the Public Hospitals Act.

The court upheld HPARB's finding that the appellant's hostile conduct towards other health professionals, which continued on social media, made his continued involvement at the hospital untenable.

The appeal was dismissed with costs.

The appellant appealed a Small Claims Court decision granting judgment to the respondent bank for a defaulted vehicle loan and dismissing his defendant's claim.

The appellant argued he thought he was only co-signing for a friend and challenged the Ontario court's jurisdiction over a contract signed in Saskatchewan.

The Divisional Court upheld the trial judge's findings that Ontario had jurisdiction over the appellant, that there was valid consideration, and that no misrepresentations were made by the bank or dealership.

However, the court remitted the matter back to the trial judge solely to provide reasons for dismissing the defendant's claim against the bank.

The Applicant, MPAC, sought judicial review of an arbitration award that granted three employees a portion of an enhanced severance payment.

The employees were originally temporary employees who later became non-temporary.

MPAC argued the arbitrator's decision was unreasonable and inconsistent with a prior award.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the Letter of Understanding was reasonable and consistent with the express wording of the agreement.

Following the dismissal of the applicant's proceeding, the respondent sought costs.

The court awarded the respondent costs on a partial indemnity basis, finding the hours and billable rates claimed to be reasonable.

The applicant was ordered to pay the respondent's costs fixed at $7,788.37.

The appellants appealed an application judge's order granting an oppression remedy to the minority shareholder respondents.

The application judge found that the majority shareholder's exercise of a drag-along right to force the sale of the respondents' shares was oppressive because the sale price was below fair market value, and ordered a valuation.

The Divisional Court allowed the appeal in part, holding that while the application judge did not err in finding a reasonable expectation that the drag-along right required a sale at fair market value, he erred in concluding the sale was below fair market value without evidence.

The court varied the order to make the valuation an interim step before determining if oppression occurred.

The self-represented appellant brought a motion to extend the time to appeal a decision of the Landlord and Tenant Board regarding severe noise problems in her apartment.

The Board had dismissed her claims for failing to prove them.

The Divisional Court dismissed the motion to extend time, finding that the proposed appeal lacked merit because it challenged factual findings, which are not subject to appellate review.

The motion was dismissed without costs.

The applicant was injured in a motor vehicle accident and sought a psychological assessment, which the insurer denied on the basis that the Minor Injury Guideline (MIG) applied.

At arbitration, the Arbitrator found the MIG unconstitutional under s. 15 of the Charter without making any factual findings about the applicant's condition or whether the MIG actually precluded his benefits.

The Director's Delegate overturned this decision, holding that constitutional issues cannot be decided in a factual vacuum.

The Divisional Court dismissed the applicant's judicial review, affirming that the Arbitrator erred by deciding the Charter issue without a proper factual foundation.

The appellant challenged his late brother's will but later abandoned the claim.

The respondents (estate trustees) obtained summary judgment on a counterclaim for damages representing CRA interest and penalties incurred by the estate due to the litigation delay, or alternatively, as an award of costs.

On appeal, the Divisional Court set aside the judgment, holding that commencing litigation is not an actionable wrong unless it meets the strict test for the tort of abuse of civil process, which was neither pleaded nor proved.

The court also held that estate administration expenses, such as CRA penalties, cannot be awarded as legal costs.

The plaintiff sued several police officers and the London Police Services Board for negligent investigation following his arrest for break and enter and breach of recognizance in the context of a domestic dispute.

The trial judge found two officers and the Board liable and awarded damages.

The defendants appealed.

The Divisional Court allowed the appeal, finding that the trial judge relied on a legal test that was subsequently overturned by the Court of Appeal.

Applying the correct standard, the court held that the police acted reasonably based on the information available to them and had reasonable and probable grounds for the arrests.

The action was dismissed.

The applicant sought judicial review of a decision by the York Regional Police to include a withdrawn criminal charge in his Police Vulnerable Sector Check.

The Divisional Court set aside the decision, finding that the police breached procedural fairness by relying on undisclosed occurrence reports without giving the applicant an opportunity to respond.

The court also found the decision unreasonable for failing to justify how the applicant met the exceptional criteria for disclosing non-conviction information.

The matter was remitted for reconsideration under the newly enacted Police Record Checks Reform Act, 2015.