ODC 2019

The landlord brought a motion to quash the tenant's appeal of an eviction order granted by the Landlord and Tenant Board for the landlord's own use.

The tenant raised several grounds of appeal, including denial of legal representation, lack of jurisdiction, and bad faith.

The Divisional Court found that the appeal raised issues of fact rather than law, attempted to introduce new issues not raised before the Board, and was brought solely for the purpose of delay.

The motion was granted, the appeal was quashed, and the tenant was ordered to vacate the premises.

The moving party sought to review a decision of a single judge of the Divisional Court who had declined to extend the time to perfect an appeal.

The moving party argued they were caught by surprise by the nature of the motion below.

The Divisional Court dismissed the motion to review, finding that this argument was not raised below, the record did not support it, no fresh evidence was adduced, and the single judge made no palpable or overriding error.

Furthermore, the motion to review was itself brought out of time.

The proposed intervenor, representing Ontario school boards, brought a motion to intervene in an appeal concerning the allocation of tax savings between a utility's shareholders and ratepayers.

The utility opposed the intervention, arguing the proposed intervenor would merely duplicate the regulator's arguments.

The court granted the motion, finding that the proposed intervenor had a direct interest in the outcome and would provide a useful and distinct perspective on behalf of ratepayers without causing undue delay.

The appellant pharmacist appealed a penalty decision of the Discipline Committee of the Ontario College of Pharmacists.

The appellant admitted to professional misconduct involving false claims to the Ontario Drug Benefit Program.

The Discipline Committee imposed a penalty that included a three-year prohibition on the appellant having any proprietary interest in a pharmacy or acting as a director of a corporation that owned a pharmacy.

The appellant argued the Committee lacked authority to impose these conditions under the Health Professions Procedural Code and the Drug and Pharmacies Regulation Act.

The Divisional Court dismissed the appeal, finding the Committee's interpretation of its broad remedial authority under s. 51(2)3 of the Code to protect the public interest was reasonable.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his complaint that his union breached its duty of fair representation by deciding not to pursue his grievances to arbitration following his layoff.

The Divisional Court dismissed the application, finding the Board's decision was reasonable and that the Board's use of a consultation process rather than a formal oral hearing did not violate the principles of procedural fairness.

The appellant appealed a Landlord and Tenant Board decision terminating his tenancy for non-payment of rent, which included parking charges.

He argued that the Board member was biased, denied him procedural fairness, and erred in finding that parking charges could be included in rent geared to income.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness and holding that the Board correctly applied a binding 2017 Divisional Court decision between the same parties.

The court also upheld the Board's finding that the parking agreement was not signed under duress.

Following the dismissal of the applicant's motion for the release of an audio recording and to strike a reference in an affidavit, the court determined the issue of costs.

The successful respondents, represented by a community legal clinic, sought $500 each.

The applicant opposed, arguing the respondents' counsel used an assumed name and failed to provide dockets.

The court found the requested amounts nominal and appropriate, ordering the applicant to pay $500 in costs to each respondent.

The applicant sought judicial review of an arbitration award interpreting a collective agreement provision regarding salary protection for downwardly reclassified employees.

The arbitrator found the provision unambiguously entitled these employees to economic increases and revisions.

The Divisional Court dismissed the application, finding the arbitrator's interpretation, treatment of estoppel, and refusal to use extrinsic evidence to create ambiguity were reasonable.

The court also rejected the applicant's argument that the arbitrator breached natural justice by citing authorities not provided by the parties, as no novel issue was raised.

The appellant subcontractor appealed a trial judge's decision granting priority to a solicitors' charging order over the subcontractor's trust claim under the Construction Lien Act.

The Divisional Court allowed the appeal, finding that funds payable to the contractor by the owners on account of an assigned lien were trust funds under section 8 of the Act.

The court held that the subcontractor's trust claim, including interest on the trust funds, takes priority over the solicitors' charging order.

The applicant brought a motion under section 21(5) of the Courts of Justice Act to set aside an order of a single judge of the Divisional Court.

The motion judge had dismissed the applicant's request to file four affidavits in support of its application for judicial review of a labour arbitration decision.

The Divisional Court dismissed the motion, finding no palpable and overriding errors of fact or errors of law.

The court agreed that the proposed affidavits, which detailed oral submissions made before the arbitrator, were an impermissible attempt to supplement the record and did not fall within the narrow exceptions for admitting affidavit evidence on judicial review.

The Local Planning Appeal Tribunal (LPAT) brought a stated case to the Divisional Court asking whether parties to a first-level appeal under s. 38(1) of the Local Planning Appeal Act, 2017 have the right to cross-examine witnesses.

The majority of the Divisional Court held that the term 'examine' in s. 42(3)(b) of the Act and s. 3 of O. Reg. 102/18 includes cross-examination.

Therefore, parties are precluded from cross-examining witnesses at an oral hearing or cross-examining affiants prior to a hearing.

The Court found that the legislature intended to create an expeditious, investigative process where the Tribunal controls the evidence, expressly overriding the common law right to cross-examination.

The appellant tenant appealed an eviction order from the Landlord and Tenant Board (LTB) arising from her breach of a mediated repayment agreement for rent arrears.

The tenant argued the LTB failed to apply the correct test under section 78(11) of the Residential Tenancies Act when it refused to set aside the eviction order.

The Divisional Court dismissed the appeal, finding that the LTB's refusal to exercise its discretion to set aside the eviction was based on findings of fact, raised no error of law, and was reasonable given the tenant's repeated breaches of the agreement.

The appellant appealed an order granting the respondent leave to commence a derivative action on behalf of a corporation under s. 246 of the Business Corporations Act.

The motion judge had granted leave on a nunc pro tunc basis.

The Divisional Court held that the motion judge erred in applying the doctrine of nunc pro tunc to cure an expired limitation period, following the Supreme Court's decision in the CIBC Trilogy.

The court varied the order to state that derivative claims arising more than two years prior to the filing of the motion for leave are statute-barred, but allowed the grant of leave to stand for continuing breaches within the limitation period.

The tenant appealed an eviction order from the Landlord and Tenant Board and brought a motion to be restored to possession of the rental unit after the landlord had already taken possession.

The court treated the motion as a request for an interlocutory injunction.

The court found the tenant could not establish a 'serious issue to be tried' because he had abandoned both the original hearing and the review hearing.

Furthermore, the court held it lacked jurisdiction to restore possession in the face of a lawful eviction order enforced before the appeal and stay order were issued.

The motion was dismissed.

The appellant appealed a Small Claims Court decision dismissing his claims against his former law partner and an accountant following the dissolution of their partnership.

The appellant alleged his former partner breached the dissolution agreement and colluded with the accountant to deprive him of his share of assets.

The Divisional Court applied the standard of palpable and overriding error and found that the Deputy Judge's factual findings, which preferred the respondents' evidence, were fully supported by the record.

The appeal was dismissed.

The appellant appealed three orders dismissing his motions to set aside a previous order that upheld the revocation of his building permit, and a related costs order.

The appellant had attempted to rely on a purported zoning map to reinstate his permit, which the motion judge found was not genuine.

He also argued that his property had legal nonconforming use status, which the motion judge rejected as res judicata and an extraordinary intensification of use.

The Divisional Court dismissed the appeals, finding no palpable and overriding error in the motion judge's factual findings, upholding the application of res judicata, and affirming the full indemnity costs award due to the appellant's use of a fraudulent document.

The applicants sought judicial review of a municipal council's decision not to change the name of a private road named 'Swastika Trail'.

The applicants argued that the council unlawfully sub-delegated its decision-making power and fettered its discretion by relying on a vote held by a local cottagers' association.

The Divisional Court dismissed the application, finding that the council retained its decision-making authority, considered multiple factors beyond the association's vote, and did not unlawfully sub-delegate or fetter its discretion.

The court also noted that it lacked jurisdiction to review the reasonableness of the council's decision under the Municipal Act, 2001.

The applicant sought judicial review of an Ontario Labour Relations Board decision affirming a compliance order that required the applicant to pay overtime to employees at its centralized sweet corn processing facility.

The Board had found that the facility was not a 'farm' and the work was not 'directly related to primary production' under the farm worker exemption in Regulation 285/01.

The Divisional Court held that the Board's decision was unreasonable because it disregarded uncontradicted expert and operational evidence, adopted an arbitrary interpretation that created absurd results, and failed to properly balance the protective purpose of the exemption.

The application was granted, the Board's decision was set aside, and the court declared that the farm worker exemption applied to the employees.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order for rent arrears.

The court found the tenant's grounds of appeal were devoid of merit as they did not raise questions of law.

However, noting the tenant's long-term tenancy and recent financial recovery, the court exercised its discretion to not immediately quash the appeal, instead imposing strict conditions requiring the payment of arrears in installments and ongoing rent.

If the conditions are met, the eviction orders will be set aside; if breached, the appeal will be dismissed and eviction will proceed.

The applicant First Nation sought judicial review of decisions by the Ontario Lottery and Gaming Corporation and the Minister of Finance regarding the modernization of gaming in Ontario, specifically the decisions to tender and bundle a gaming zone that included the applicant's reserve.

The Divisional Court dismissed the application, finding that the impugned decisions were policy and commercial in nature and therefore not justiciable.

The court also found no bad faith, no denial of procedural fairness, and no breach of the duty to consult.

Furthermore, the court granted the respondents' motion to dismiss the application for excessive and unexplained delay that caused prejudice.