ODC 2020

The applicant, a declared vexatious litigant, sought permission from the case management judge to commence proceedings in the Superior Court of Justice for an order in the nature of mandamus regarding a private prosecution he initiated against police officers.

The private prosecution related to a 2006 tasering incident involving his brother.

The court denied the request, finding it frivolous and a continuation of the applicant's efforts to litigate issues already decided.

The court clarified that the prior order restricting the applicant's access to the courts also applied to private prosecutions in the Ontario Court of Justice.

The employer applied for judicial review of an arbitrator's decision allowing a union grievance over Accidental Death benefits.

A firefighter died of lung cancer, an occupational disease presumed work-related under the Workplace Safety and Insurance Act.

The employer's insurance carrier denied the claim based on an illness/disease exclusion clause.

The arbitrator found the collective agreement obligated the employer to provide Accidental Death benefits, which at law includes occupational diseases, and that the insurance policy's exclusion could not diminish this bargained benefit.

The Divisional Court applied the Vavilov reasonableness standard and dismissed the application, finding the arbitrator's interpretation of the collective agreement and the insurance policy was justifiable, transparent, and intelligible.

The appellant lawyer appealed a Small Claims Court decision finding him professionally negligent in his representation of the respondent in a condominium application.

The appellant argued the Deputy Judge erred in statutory interpretation, failed to draw adverse inferences from uncalled witnesses, and failed to consider mitigation and apportionment of liability.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors.

The court also awarded costs to the successful respondent, who was represented by pro bono counsel, on the condition that the respondent provide a written direction that the costs be paid directly to the law firm.

The appellants appealed the dismissal of their motion to certify a class action against the manufacturer of the drug Celexa, alleging a failure to warn that the drug is a teratogen.

The Divisional Court found that the motion judge made palpable and overriding errors by concluding the appellants had abandoned general causation as a common issue and by analyzing the duty to warn in isolation from general causation.

The appeal was allowed, the decision set aside, and the certification motion was remitted to be heard afresh by another judge.

The applicants, two Indigenous representative groups, brought motions for a stay of a Minister's Directive and Designations that authorized three children's aid societies to provide child and family services in Thunder Bay.

The applicants argued the Directive interfered with their inherent right to self-government and was issued without proper consultation or statutory compliance.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicants failed to establish irreparable harm or that the balance of convenience favoured a stay.

The motions for a stay were dismissed.

The appellant, a licensed land surveyor, appealed a decision of the Discipline Committee finding him guilty of multiple acts of professional misconduct and revoking his license.

The misconduct included unauthorized billing, performing unnecessary research, and counseling a client to file a malicious complaint against a competitor.

Applying the standard of review from Vavilov, the Divisional Court found no palpable and overriding error in the Committee's findings of fact and mixed fact and law.

The court upheld the penalty of license revocation, noting the appellant's fundamental dishonesty, lack of accountability, and the need to protect the public.

The applicant employer sought judicial review of a grievance arbitration award that substituted a thirty-day suspension for the termination of an employee.

The Divisional Court stayed the application as premature, noting that the arbitrator had remitted the matter back to the parties and remained seized of the issue of whether reinstatement was an appropriate remedy.

The court held that judicial review should wait until the final disposition of the remedy to avoid overlapping work and inconsistent decisions.

The vendors appealed a Small Claims Court judgment awarding the purchaser $17,488.27 for breach of warranty in a residential real estate transaction.

The trial judge found the vendors failed to disclose an HVAC rental lien and removed fixtures prior to closing.

The Divisional Court applied the palpable and overriding error standard of review and found no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed with costs.

Following the dismissal of the employer's appeal from a Small Claims Court decision awarding the employee $25,000 for wrongful dismissal, the court determined the quantum of costs.

The employee sought $16,450.25 on a substantial indemnity basis, while the employer argued for a lower amount.

The court found the issues were not complex and awarded partial indemnity costs of $5,000 for the appeal, plus the maximum allowable 15% of the damages ($3,750) for the trial costs under section 29 of the Courts of Justice Act.

The plaintiff appealed a trial judge's decision finding she did not meet the threshold requirements under s. 267.5 of the Insurance Act.

The plaintiff argued the trial judge committed palpable and overriding errors by failing to explain his preference for conflicting medical evidence and by omitting reference to the evidence of her chiropractor.

The Divisional Court dismissed the appeal, holding that the standard of review is palpable and overriding error, and finding no such error in the trial judge's careful review of the evidence.

The Canadian Civil Liberties Association (CCLA) brought a motion for leave to intervene as a friend of the court in an appeal from an order certifying a class action against Ontario.

The underlying class action alleges negligence and Charter breaches in the provision of services to adults with developmental disabilities.

On appeal, Ontario argues that the recently enacted Crown Liability and Proceedings Act, 2019 provides immunity from the negligence claims.

The CCLA sought to intervene to argue that Ontario's expansive interpretation of the Act's immunity provisions violates section 96 of the Constitution Act, 1867.

The court granted the motion, finding that the CCLA would make a useful and distinct contribution to a matter of public importance without causing injustice or undue delay to the parties.

The appellant purchased a statue at an auction in 2006, relying on the auction house's representations that it was an authentic work.

In 2018, he discovered it was a fake and that the auction house had been warned prior to the sale.

The trial judge found the auction house liable for fraudulent misrepresentation and ordered a refund, but failed to award prejudgment interest.

On cross-appeal, the Divisional Court varied the judgment to include $6,000 in prejudgment interest, finding that the cause of action arose in 2006 and the trial judge erred by failing to exercise her discretion under the Courts of Justice Act to address the interest claim.

The applicant, a former Auditor General for the City of Oshawa, brought an application for judicial review seeking to quash a 2013 City Council resolution and expunge an investigator's report.

The application was commenced more than five years after the resolution was passed.

The Divisional Court dismissed the application for delay, finding the delay was lengthy, lacked a reasonable explanation, and caused prejudice to the City given the one-year statutory limitation period for quashing municipal resolutions.

The applicants, the City of Toronto and the Association of Municipalities of Ontario, brought a motion for an interim injunction to stop an arbitration between the respondents, Resource Productivity & Recovery Authority and Stewardship Ontario.

The applicants argued that the arbitration was not the proper forum to challenge a funding obligation decision and sought to have the matter determined by judicial review.

The Divisional Court dismissed the motion, finding that the applicants failed to demonstrate irreparable harm and that the balance of convenience favoured allowing the arbitration to proceed as scheduled.

The appellant appealed a decision of the Ontario Energy Board imposing a $155,000 administrative penalty for contraventions of the Energy Consumer Protection Act, 2010 related to the marketing of energy contracts.

On appeal, the appellant argued for the first time that the Board lost jurisdiction because the penalty was imposed outside the two-year limitation period in s. 112.5(2) of the Ontario Energy Board Act, 1998.

The Divisional Court declined to exercise its discretion to hear the new limitation period issue, finding it would benefit from the specialized tribunal's interpretation and required factual findings.

The Court also dismissed the appellant's arguments that the Board misapprehended evidence and improperly found systemic training deficiencies, concluding there were no errors of law or jurisdiction.

The appellant appealed a Master's decision appointing an Estate Trustee During Litigation (ETDL) to manage an intestate estate.

The appellant argued the Master exceeded her jurisdiction by effectively removing her as administrator and authorizing the ETDL to distribute the residue of the estate.

The Divisional Court dismissed the appeal, finding no error in the Master's decision to appoint an ETDL due to the adversarial relationship between the parties.

However, the court noted that certain provisions of the resulting order exceeded the Master's jurisdiction and directed the parties to amend the order or return to the Master.

The applicant, an internationally trained dentist, sought judicial review of a decision by the National Dental Examining Board's Appeals Committee dismissing his appeal of a failing grade on his clinical skills assessment.

The applicant argued the Committee breached its By-Laws and procedural fairness by failing to hold an oral hearing and failing to provide a post-evaluation review.

The Divisional Court dismissed the application, finding the Committee's decision reasonable as the applicant failed to provide evidence of a procedural irregularity that would trigger an oral hearing, and failed to prove he was denied a post-evaluation review.

The applicants, Dilico Anishinabek Family Care and Fort William First Nation, brought a motion for a stay of a Minister's Directive and Designation pending their applications for judicial review.

The Directive designated Tikinagan Child and Family Services to provide child and family services to certain Indigenous children in Thunder Bay.

The court applied the three-part test for a stay.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm or that the balance of convenience favoured granting the stay.

The motion was dismissed, with written reasons to follow.

The self-represented tenants appealed two Landlord and Tenant Board decisions that dismissed their applications for substantial interference with reasonable enjoyment.

The Board had found the tenants deliberately used the wrong form (T2 instead of T6) to characterize maintenance issues as substantial interference.

On appeal, the Divisional Court held that the Board's findings regarding the forms and its procedural decisions were questions of mixed fact and law, which are not appealable under the Residential Tenancies Act.

The Court also found no breach of procedural fairness in the Board's decision to convert an oral hearing into a written one to accommodate the tenants' language barriers.

The appeal was dismissed.

The appellant foreign corporations appealed a Master's order dismissing their motion to stay or dismiss the action for lack of territorial jurisdiction.

The Master found a real and substantial connection to Ontario based on a good arguable case that an oral contract for a 5% ownership interest was made and breached in Ontario.

The Divisional Court found no palpable and overriding error in the Master's characterization of the dispute or her conclusion, and dismissed the appeal.