ODC 2019

The appellant appealed an order of the Master that refused to set aside a Registrar's order dismissing his action for delay.

The appellant also brought a motion to adduce fresh evidence on the appeal, detailing severe medical and financial challenges that prevented him from advancing the litigation or retaining counsel earlier.

The Divisional Court granted leave to admit the fresh evidence, finding it credible, relevant, and excusably delayed due to the appellant's circumstances.

Based on the fresh evidence, the Court allowed the appeal and set aside the dismissal order, concluding that the appellant's interest in pursuing his substantial claims outweighed the respondent's interest in having the claims dismissed, especially given the lack of actual prejudice to the respondent.

Following the dismissal of the respondent's motion for security for costs of a pending appeal, the successful appellant sought costs of $12,255.13 on a partial indemnity basis.

The respondent argued the amount was excessive and sought to have costs fixed at $6,506.26, payable in any event of the cause.

The court found the appellant's claimed hours excessive given the lack of complexity and brevity of the materials, fixing costs at $7,500 inclusive.

The court declined to order costs payable in any event of the cause, applying the presumptive rule that interlocutory costs are payable within 30 days.

The appellant appealed a Small Claims Court order dismissing her motion to set aside a default judgment.

The underlying claim alleged she used her position at a bank to induce the plaintiff into a $30,000 fraudulent investment.

The Divisional Court upheld the Deputy Judge's finding that the appellant failed to present a meritorious defence, as her evidence merely asserted the transaction was with her husband and did not address the specific allegations of inducement pleaded against her.

The appeal was dismissed with costs.

The appellant tenant brought a motion for an extension of time to file a Notice of Appeal from a Landlord and Tenant Board eviction order based on rent arrears.

The court dismissed the motion, finding that the appellant was aware of the hearing date but chose not to attend, and that the proposed appeal raised a question of fact rather than a question of law as required by section 210(1) of the Residential Tenancies Act.

The court varied the eviction date to provide the appellant additional time to vacate the premises.

The appellant landlord appealed a decision of the Landlord and Tenant Board ordering him to pay damages to the respondent tenant for a bed bug infestation.

The landlord argued the Board lacked jurisdiction because the property was exempt as shared accommodation.

The Board found as a fact that the tenant was not required to share a kitchen or bathroom with the landlord.

The Divisional Court dismissed the appeal, holding that the appeal was restricted to questions of law under section 210 of the Residential Tenancies Act, 2006, and the landlord was improperly challenging findings of fact.

The appellant was injured on a GO Bus and awarded $35,000 in non-pecuniary damages by a jury.

The trial judge reduced the award to zero by applying the statutory deductible under the Insurance Act, finding that while the respondent employer was vicariously liable, its liability could not exceed that of its protected employee driver pursuant to s. 267.5(10.1).

The Divisional Court dismissed the appeal, confirming that an employer's vicarious liability is capped at the amount for which the protected defendant employee is liable.

The appellant appealed a trial judge's decision ordering no costs payable by either party following a successful Motion to Change.

The appellant argued he was entitled to costs based on his success and two offers to settle.

The Divisional Court dismissed the appeal, finding the trial judge correctly determined that the presumption of costs was outweighed by the undue hardship an adverse costs award would cause the respondent and the child in her care.

The court held the trial judge's exercise of discretion was entitled to deference.

The tenant appealed an eviction order made by the Landlord and Tenant Board, arguing a reasonable apprehension of bias.

The Board Member who ordered the eviction had previously acted as legal counsel against the tenant on behalf of the building's former property manager in prior eviction proceedings.

The Divisional Court found that an objective observer could reasonably assume the Member's prior knowledge of the tenant's history with the landlord might unconsciously influence her decision, particularly when making credibility findings and exercising discretion under section 83 of the Residential Tenancies Act.

The appeal was allowed and the matter remitted for a hearing de novo.

The appellant, who had de facto custody of the child, appealed a summary judgment finding that the child was in need of protection and an order denying her access.

The child had complex medical needs, and the medical evidence indicated the appellant was providing inadequate care, leading to the child's declining health.

The Divisional Court found no palpable and overriding error in the motion judge's reliance on the medical evidence, the finding that the child was in need of protection, or the determination that it was in the child's best interests to deny the appellant access.

The appeal was dismissed.

The applicant unions sought judicial review of a Pay Equity Hearings Tribunal decision regarding the maintenance of pay equity in predominantly female workplaces.

The Tribunal had ruled that the Pay Equity Act did not require employers to use the proxy comparison method on an ongoing basis to maintain pay equity.

The Divisional Court found that while the Act itself does not violate section 15 of the Charter, the Tribunal's interpretation was unreasonable because it failed to consider Charter values.

The Court held that a proportionate balancing of Charter equality rights and the Act's statutory mandate requires that women in predominantly female workplaces have continued access to male comparators through the proxy method to maintain pay equity.

Following the dismissal of the appellants' appeal from an order liquidating the corporate defendant, the respondent sought costs of the appeal and a prior stay motion.

The Divisional Court fixed costs at $25,000 on a partial indemnity basis, payable solely by the personal appellants to prevent the respondent from effectively paying half of his own costs through the corporation.

The court also ordered the personal appellants to fully indemnify the respondent and the corporation for the fees of a monitor appointed during the stay, as the monitor was necessitated by the personal appellants' oppressive conduct.

The plaintiffs, former major junior hockey players, appealed a motion judge's refusal to certify five causes of action in their class proceeding against the Canadian Hockey League and its clubs, and appealed the costs order.

The defendants sought leave to cross-appeal the certification of the action, alleging a conflict of interest among class members.

The Divisional Court allowed the plaintiffs' appeal on certification, finding the motion judge erred in principle by using a proportionality analysis to dismiss properly pleaded causes of action as redundant.

The court dismissed the defendants' cross-appeal, finding no conflict of interest.

On costs, the court upheld the motion judge's decision to make a portion of the plaintiffs' costs payable in the cause, but allowed the appeal regarding the U.S. defendants' costs, ordering that they be paid by the Law Foundation of Ontario rather than the plaintiffs, pursuant to the Law Society Act.

The appellant dog kennel appealed a Small Claims Court decision finding it negligent in caring for the respondent's dog, which suffered broken teeth, weight loss, and dehydration during a five-day stay.

The kennel argued the trial judge erred in determining the standard of care without expert evidence and in finding causation.

The Divisional Court dismissed the appeal, holding that the trial judge properly considered the kennel's representations of having a veterinarian on site and 24/7 monitoring, and reasonably relied on the factual testimony of the on-site veterinarian.

The court found no error in the trial judge's inference that the kennel's failure to inspect the dog or contact the owner caused the injuries.

The court issued an endorsement regarding costs following an appeal.

Noting the history of the appeal and finding the respondent's bill of costs to be reasonable, the court ordered the appellant to pay costs of $7,650.00, inclusive of all disbursements, to the respondent's counsel within thirty days.

The tenant appealed a Landlord and Tenant Board order evicting her from her subsidized housing unit for allegedly throwing a rabbit off her balcony.

The Board's finding was based entirely on double hearsay evidence—a police officer reading another officer's notes of a statement made by the tenant's ex-boyfriend.

The tenant and a witness testified the rabbit jumped, but the Board preferred the hearsay evidence.

The Divisional Court allowed the appeal, holding that relying on untested, highly prejudicial hearsay evidence without giving the tenant an opportunity to cross-examine the key witness constituted a denial of procedural fairness.

The defendants appealed a motion judge's decision refusing to strike the plaintiffs' claim for breach of informant privilege under Rule 21.

The defendants argued the claim was barred by absolute privilege, which protects statements made in the course of judicial proceedings.

The Divisional Court dismissed the appeal, agreeing with the motion judge that the law is unsettled and it is not plain and obvious that a claim for breach of informant privilege cannot form an exception to absolute privilege.

The appellant lawyer appealed a decision of the Law Society Tribunal's Appeal Division, which upheld a Hearing Division finding of professional misconduct and a $200,000 costs award.

The misconduct related to the appellant's inadequate preparation of Personal Information Forms for Hungarian Roma refugee claimants and his failure to adequately supervise his staff.

The Divisional Court dismissed the appeal, finding that the Appeal Panel reasonably concluded the Hearing Panel's findings of fact, credibility assessments, and costs award were supported by the evidence and fell within a range of reasonable outcomes.

The applicants sought judicial review of an umpire's appraisal award regarding contents and additional living expenses following a residential fire.

During the hearing, the respondent insurer conceded it would pay the contents award without requiring a release, and agreed the applicants could litigate the interpretation of the additional living expenses coverage in court without being bound by the umpire's nil appraisal.

Given these concessions, the Divisional Court dismissed the application for judicial review with no costs.

The appellant, a professional engineer, appealed the liability and penalty decisions of the Discipline Committee of the Professional Engineers of Ontario.

The Committee had found the appellant guilty of professional misconduct for engaging in vexatious communications with Ministry of Transportation engineers regarding bridge design, while dismissing allegations of incompetence.

The Divisional Court applied the reasonableness standard of review and found that the Committee's decisions on both liability and penalty were justified, transparent, and intelligible.

The appeal was dismissed, with a minor modification to the timeline for completing the Professional Practice Examination.

The tenants appealed a Landlord and Tenant Board decision dismissing their request to review an eviction order.

Following the eviction order for the landlord's own use, the parties signed an agreement extending the move-out date.

The tenants argued this agreement, which allegedly included a $10,000 payment, created a new tenancy.

The Divisional Court upheld the Board's finding that the agreement was a forbearance agreement under section 45(b)(iii) of the Residential Tenancies Act and did not create a new tenancy.

The appeal was dismissed.