ODC 2020

The applicant union sought judicial review of an arbitrator's decision dismissing grievances related to pension grow-in benefits for employees who were indefinitely laid off following a plant idling.

The arbitrator found the employees were not terminated by the employer, but rather terminated their own employment by electing to take severance pay instead of retaining recall rights.

The Divisional Court allowed the application for judicial review, finding the arbitrator's failure to consider section 4(2) of O. Reg. 288/01 under the Employment Standards Act constituted a fundamental gap in reasoning.

The matter was remitted to a different arbitrator for a new hearing.

The landlord brought a motion to quash the tenants' appeal of a Landlord and Tenant Board eviction order.

The tenants had not paid rent for over a year, accumulating over $50,000 in arrears, and had placed a stop payment on a cheque provided to the Board.

The tenants failed to perfect the appeal or raise any valid question of law.

The Divisional Court found the appeal was manifestly devoid of merit and an abuse of process intended solely to delay eviction.

The motion was granted, the appeal was quashed, and the automatic stay was vacated.

The moving party, a self-represented father residing in Australia, sought an extension of time to bring a motion for leave to appeal an interlocutory order that continued an ex parte order granting sole custody to the responding party mother and restraining the father from contacting her or the children.

The Divisional Court dismissed the motion, finding that while the father intended to appeal and provided an explanation for the delay, the proposed appeal lacked merit as it did not meet the test for leave to appeal an interlocutory order under Rule 62.02(4).

The court emphasized the need for the family law issues to be adjudicated on their merits without further delay.

The applicant brought a motion for leave to appeal the unreported decision of Hood J. dated October 31, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondent and $5,000 to the trustee.

The moving party sought leave to appeal an unreported decision of Patterson J. dated October 22, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 inclusive.

The landlord appealed a Landlord and Tenant Board decision dismissing her application for compensation for flood damage to a leased condominium unit.

The Board found the tenants were not negligent when a bathroom faucet leaked and they could not locate the shut-off valve, and that their failure to maintain insurance did not render them liable.

The Divisional Court dismissed the appeal, finding no error of law in the Board's negligence analysis and noting the landlord failed to prove that the tenants' lack of insurance caused her loss.

The appellants brought a motion for leave to appeal the decision of Corthorn J. dated November 4, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 inclusive.

The applicant brought an application under section 35(9) of the Mental Health Act to permit the disclosure of the respondent's psychiatric records for a capacity hearing before the Law Society Tribunal.

The respondent opposed the application, arguing that the records were not essential to the hearing.

The Divisional Court granted the application, finding that the records were highly relevant and important to determining the respondent's capacity to practice law, and that the respondent's privacy interests were diminished due to his membership in a regulated profession.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order, or alternatively to lift the stay of eviction and order payment of arrears.

The tenant had a history of failing to pay rent and utilities.

The court declined to quash the appeal, finding it might raise a genuine issue of law regarding a denied adjournment.

However, given the ongoing arrears and delay, the court varied the stay, ordering the tenant to pay $7,500 towards arrears within 30 days to maintain the stay and expedite the appeal.

The appellant, a registered massage therapist, appealed a decision of the Discipline Committee of the College of Massage Therapists of Ontario finding him guilty of sexual abuse and revoking his license.

The Divisional Court upheld the findings of fact and dismissed allegations of bias.

However, the Court found the Panel erred by applying 2017 mandatory revocation amendments retrospectively to 2014 conduct.

Finding permanent revocation disproportionate for a first-time offender under the prior discretionary regime, the Court substituted the revocation with a suspension ending on the date of judgment.

The appellant husband appealed an order directing the sale of a jointly owned property prior to trial.

The Divisional Court reviewed the motion judge's decision, noting that a joint owner has a prima facie right to an order for sale unless it would cause prejudice, hardship, or injustice.

The court found that the motion judge applied the correct legal test, properly weighed the evidence, and appropriately exercised her discretion in ordering the sale while protecting the husband's interests by restraining the wife from encumbering her own property.

The appeal was dismissed.

The applicant, an international medical graduate, failed her Assessment Verification Period in the university's emergency medicine residency program.

She brought a motion for an interim injunction to prevent the university from reporting her failure to the College of Physicians and Surgeons of Ontario pending her internal appeal and judicial review.

The Divisional Court dismissed the motion, finding no irreparable harm and concluding that the balance of convenience favoured the university, which has a statutory obligation to report such outcomes to the College.

The insurer appealed a Licence Appeal Tribunal decision ordering it to pay the insured's medical expenses under the Statutory Accident Benefits Schedule.

The insurer argued the Tribunal erred in law by deeming the expenses incurred under s. 3(8) without finding that payment was unreasonably withheld or delayed.

The Divisional Court agreed the Tribunal erred in its alternate reliance on s. 3(8), but dismissed the appeal because the Tribunal's primary conclusion—that the expenses were actually incurred under s. 3(7)—was a finding of fact supported by the evidence.

The appellant appealed a decision of the Social Benefits Tribunal that upheld the refusal to grant him financial assistance for shelter costs under the Ontario Works Act.

The appellant argued that requiring proof of incurred shelter costs contradicted the Act's definition of income assistance.

The Divisional Court dismissed the appeal, finding no error of law, as section 7 of the Act explicitly states that eligibility conditions are set by regulation, and the regulation limits shelter assistance to actual costs payable.

The applicants, a physician and three corporate entities operating independent health facilities, sought judicial review of the Ministry of Health and Long-Term Care's decision to set off $1.6 million in future facility fees against alleged past overbilling.

The Ministry had also alleged overbilling of physician fees but refused to issue a final notice that would allow the physician to seek an independent adjudication before the Physician Payment Review Board.

The Divisional Court found that the Ministry had no express or implied statutory authority under the Independent Health Facilities Act to impose the set-off.

Furthermore, the court held that the Ministry acted unreasonably in relying on equitable set-off to avoid an independent adjudication of the billing dispute.

The court granted the application and issued an order of mandamus requiring the Ministry to reimburse the applicants for the facility fees taken pursuant to the unlawful set-off decision.

The appellant appealed a trial judgment that dismissed her claims for unjust enrichment and a joint family venture arising from her involvement in the respondent's dog grooming business during their common-law relationship.

The trial judge had found the appellant exaggerated her involvement and was adequately compensated.

On appeal, the Divisional Court found no palpable and overriding error in the trial judge's factual and credibility findings.

The court also rejected the appellant's argument that her trial counsel provided inadequate representation.

The appeal was dismissed.

The appellant appealed a motion judge's decision to impute an annual income of $130,000 to him for the purpose of calculating spousal support.

The appellant argued the motion judge erred by relying solely on previous earnings.

The Divisional Court dismissed the appeal, finding the motion judge considered multiple factors including age, education, skills, and local job market rates.

The court also dismissed a motion to introduce fresh evidence of the appellant's post-hearing employment, noting the proper procedure for changed circumstances is a new motion to change.

The defendants brought a motion to extend the time to seek leave to appeal orders of the Commercial Court.

After the plaintiff bank filed extensive responding materials, the defendants abandoned their motion.

The plaintiff sought costs.

The court awarded costs to the plaintiff on a full indemnity basis, as provided by the underlying loan agreement, fixing the costs of the abandoned motion at $10,052.71.

The appellant appealed a Landlord and Tenant Board decision ordering his eviction from a non-profit housing co-operative.

The Board found that the appellant's conduct, which included verbal harassment and laying siege to the co-op office, seriously impaired the safety of the property manager.

The Divisional Court dismissed the appeal, finding no error of law in the Board's formulation of the test for serious impairment of safety and no palpable and overriding error of fact in its evidentiary findings.

The respondent, a criminal defence lawyer, was arrested and charged with criminal harassment following complaints from his estranged wife.

He was acquitted and subsequently successfully sued the investigating police officers and the Crown for negligent investigation in Small Claims Court.

The appellants appealed the trial judge's finding of liability.

The Divisional Court allowed the appeal and dismissed the action, finding that the trial judge erred in law by failing to apply the correct standard of care.

The court held that the officers had reasonable and probable grounds to arrest the respondent and were not required to exhaust all possible avenues of investigation before laying charges.