ODC 2019

The Toronto Police Service sought judicial review of a decision by the Ontario Civilian Police Commission that varied the penalty imposed on a police officer who pled guilty to deceit and insubordination.

The Hearing Officer had ordered dismissal, but the Commission substituted a penalty of forfeiture of pay, suspension, and demotion, finding the Hearing Officer made several errors in principle.

The Divisional Court dismissed the application for judicial review, holding that the Commission reasonably concluded the Hearing Officer erred by mischaracterizing the officer's admission of a mistake, making unsupported findings about risks to an investigation, and improperly relying on the fact of the officer's suspension.

The Registrar, Alcohol, Gaming and Racing appealed a decision of the Ontario Licence Appeal Tribunal which directed the Registrar not to suspend the liquor licence of The Royal Oak.

The Registrar had proposed a 60-day suspension after an intoxicated patron left the premises and was later found dead in the snow, arguing the licensee's obligation not to permit drunkenness included ensuring the patron arrived at a safe place.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable and holding that s. 45(1) of O. Reg. 719/90 does not impose an ongoing obligation on a licensee to ensure a patron's safe arrival at a destination after leaving the premises.

The tenant appealed a Landlord and Tenant Board order terminating her tenancy and evicting her for unreasonably refusing the landlord entry to her unit.

The tenant argued the Board Member was biased, failed to provide adequate reasons, and made unreasonable findings of fact, particularly regarding allegations of racism against the landlord's superintendent.

The Divisional Court dismissed the appeal, finding no reasonable apprehension of bias, that the reasons were adequate, and that the Member's factual findings were supported by the evidence.

The appellant insurer appealed an interlocutory decision of the Licence Appeal Tribunal (LAT) which found that the respondent's application for Income Replacement Benefits was not barred by the two-year limitation period.

The Divisional Court dismissed the appeal as premature, holding that appeals from administrative tribunals should generally be restricted to final decisions to avoid fragmentation and increased costs.

The insurer may raise the limitation period issue in an appeal of the final decision if unsuccessful on the merits.

The appellant landlord appealed a Small Claims Court judgment awarding it only $660 of a $9,905 claim for cleaning and repair costs against former tenants.

The Deputy Judge had discounted the landlord's primary evidence, an invoice from a non-arm's length company owned by the landlord's spouse, finding it unreliable and inflated.

On appeal, the Divisional Court upheld the factual findings and rejected the landlord's claim of judicial bias.

However, the court found the Deputy Judge erred in law by applying section 42 of the Residential Tenancies Act (abandoned property) instead of section 41 (vacated property) to the disposal of outdoor furniture.

The appeal was allowed in part, increasing the judgment by $120 to $780.

The appellants appealed a motions judge's decision ordering the liquidation of a closely-held corporation as a remedy for oppression and breach of fiduciary duty.

The appellants argued that the remedies of disgorgement and constructive trust were sufficient and that liquidation was punitive.

The Divisional Court dismissed the appeal, finding that the motions judge properly exercised his discretion to order liquidation because the trust underpinning the shareholders' agreement had been destroyed, the appellants had committed grave breaches, and the business was no longer operating as originally intended.

The court also upheld the brief two-week election period granted to the appellants to purchase the respondent's shares.

In a child protection appeal, the Office of the Children's Lawyer sought to admit fresh evidence regarding the views and preferences of the nearly 16-year-old child.

The appellant requested an adjournment to file responding evidence and cross-examine the affiant.

The Divisional Court admitted the fresh evidence and denied the adjournment, finding that the appellant had the evidence for two weeks, which was sufficient time to respond with reasonable diligence, and that child protection cases must take priority.

The appellant tenant appealed a decision of the Landlord and Tenant Board dismissing her request for a review of an eviction order for failure to pay rent.

The tenant argued she did not receive the notice of hearing by mail and that the Board erred in law by dismissing her review request without an oral hearing.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable and in accordance with the statutory provisions governing service by mail.

The applicants sought judicial review of a decision by the Registrar of the Ontario College of Teachers refusing to remove a 2014 finding of professional misconduct and reprimand from the public register.

The applicants argued that because the remedial course condition had been fulfilled, only the reprimand remained, entitling the teacher to its removal after three years under the College's by-laws.

The Divisional Court applied a reasonableness standard of review and upheld the Registrar's decision, finding that the initial penalty imposed included both a reprimand and a course, meaning it was not 'limited to a reprimand' as required by the by-law for automatic removal.

The applicant, a police officer, was found guilty of misconduct under the Police Services Act for unlawful arrest and excessive force during the G20 summit.

The Ontario Civilian Police Commission upheld the misconduct findings but reduced the penalty to a one-month demotion.

The applicant sought judicial review, arguing the Commission erred in its standard of review and treatment of the Hearing Officer's credibility findings.

The Divisional Court dismissed the application, finding the Commission's decision was reasonable and properly deferred to the Hearing Officer's factual and credibility determinations.

The applicants, including the Elementary Teachers' Federation of Ontario and the Canadian Civil Liberties Association, brought applications for judicial review challenging the Ontario government's decision to withdraw the 2015 sex education curriculum and replace it with the 2010 curriculum.

They argued the directive infringed teachers' freedom of expression under s. 2(b) of the Charter, and students' rights under ss. 7 and 15(1) of the Charter.

The Divisional Court granted the applicants public interest standing but dismissed the applications on the merits.

The court found no infringement of s. 2(b) because teachers remained free to address topics from the 2015 curriculum, and no infringement of ss. 7 or 15(1) because the 2010 curriculum did not inherently deprive students of security of the person or substantively discriminate against protected groups.

The appellants, Dairy Farmers of Ontario and Dairy Farmers of Canada, appealed a Master's order dismissing their motion to intervene as added parties in an application challenging the constitutionality of mandatory milk pasteurization laws.

The Master had dismissed the motion based on the Supreme Court's decision in Northwestern, finding that allowing the appellants to intervene would violate their impartiality as administrative bodies.

The Divisional Court allowed the appeal, holding that the Master erred in applying Northwestern, as the underlying application was a constitutional challenge to a statute, not a judicial review of the appellants' own decisions.

The Court found the appellants met the criteria under Rule 13.01 and could make a useful contribution given their specialized expertise.

The defendant moved for an urgent stay of an order requiring him to produce certain correspondence, pending his intended motion for leave to appeal.

The defendant argued the documents were protected by privilege, but the court noted he had previously consented to an order requiring production of 'all' correspondence and had failed to properly assert privilege.

Applying the three-part test for an interlocutory injunction, the court found no serious issue to be tried and that the balance of convenience did not favour a stay.

The motion was dismissed with costs.

The applicant union sought judicial review of a labour arbitration award that upheld the termination of a registered nurse for stealing narcotics from the respondent hospital.

The nurse suffered from a drug addiction.

The Divisional Court found that the arbitrator's decision was unreasonable because he failed to properly consider whether the hospital engaged in indirect discrimination by terminating the nurse rather than accommodating her disability.

The arbitrator improperly equated the nurse's guilty plea to criminal theft with voluntary behaviour in the human rights context, applying a higher standard of causation than required.

The court set aside the arbitration award and remitted the matter back to the arbitrator to determine the issue of indirect discrimination.

The appellant appealed a Tribunal decision regarding the calculation of income for social assistance purposes.

The Tribunal had included a loan incurred for refinancing an existing student loan as income.

The Divisional Court allowed the appeal, finding the Tribunal's decision unreasonable.

The Court held that there is implicit discretion under s. 48(1) of O.Reg. 134/98 to exclude a loan where the recipient receives no actual financial benefit or increase in assets.

The matter was remitted to the Tribunal for reconsideration.

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

The tenant argued she was denied procedural fairness when the Board proceeded in her absence after denying her adjournment requests.

The Divisional Court found that the Board's decision to deny the adjournment was a discretionary exercise based on the facts, and the tenant raised no arguable question of law.

The appeal was quashed as manifestly devoid of merit.

The applicant sought judicial review of an arbitration award that dismissed a grievance concerning the employer's refusal to pay a bilingual bonus to part-time indeterminate employees working temporarily in bilingual positions.

The Divisional Court applied the reasonableness standard of review.

The Court found that the arbitrator's reliance on past practice and the specific wording of the collective agreement regarding the bilingual bonus was reasonable.

The application for judicial review was dismissed with costs awarded to the employer.

Air Canada appealed a Small Claims Court judgment awarding damages to four family members for lost luggage on an international flight.

Air Canada argued that under the Montreal Convention, only the passenger whose name appeared on the baggage tags could claim damages.

The Divisional Court dismissed this argument, holding that any passenger who can establish they checked a bag containing their belongings is entitled to claim up to the Convention's liability limit, regardless of the name on the tag.

However, the court allowed the appeal in part to reduce the total damages to $6,800, matching the amount originally claimed by the respondents on their baggage declaration form.

The appellant father appealed a summary judgment decision finding his child in need of protection and placing her in the custody of the respondent mother.

The child had threatened suicide during access visits, which the motions judge found was proximately caused by the father's inappropriate conduct and obsession with proving parental alienation syndrome.

The Divisional Court dismissed the appeal, finding the motions judge made no palpable and overriding error in relying on the available evidence.

The court also noted that the significant delay in perfecting the appeal rendered the requested remedy of a new trial impractical given the child's age and consistent refusal to see the father.

The appellants appealed an order finding that a trail across their land was an 'access road' under the Road Access Act and refusing to order it closed.

The Divisional Court dismissed the appeal, finding ample evidence that prior owners had permitted the respondent's use of the road to access his landlocked property.

The court also upheld the application judge's discretionary decision to refuse closure and impose conditions, noting the respondent's long-term use and lack of disruption to the appellants.