ODC 2021

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $5,000.

The moving parties sought leave to appeal an order dismissing their motion for a stay of proceedings.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $10,000 to the responding parties.

The moving parties brought a motion for leave to appeal an order of Kimmel J. dated March 20, 2021.

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

The self-represented applicant, who has a psychiatric disability, sought leave to appeal multiple interlocutory orders, including an order appointing the Public Guardian and Trustee as her litigation guardian and an order refusing to appoint amicus curiae.

The applicant repeatedly failed to comply with court directions to provide copies of the impugned decisions and to follow procedural rules.

The Divisional Court issued directions and notices under Rule 2.1.01, requiring the applicant to show cause why her motions for leave to appeal should not be dismissed as frivolous, vexatious, and an abuse of process.

Forest Grove Homes Limited appealed a Licence Appeal Tribunal decision ordering Tarion Warranty Corporation to repair three Ontario Building Code violations related to the roof of a new home owned by Elaine Ducas.

Ducas cross-appealed, seeking an order requiring Tarion to investigate and correct the underlying cause of water penetration, which the Tribunal found was likely ice damming.

The Divisional Court dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the Tribunal's factual findings regarding the building code violations, and agreeing that the statutory warranty did not require the builder to investigate the cause of the leak absent proof that a design flaw caused the ice damming.

The University of Windsor brought a motion for a publication ban and sealing order in an application for judicial review of a university adjudicator's decision finding the applicant committed sexual assault.

The motion sought to protect the identity of the complainant and other individuals who made complaints.

Applying the test from Sherman Estate, the court granted the publication ban and a modified sealing order, finding that court openness posed a serious risk to the important public interest of preserving the dignity of sexual assault complainants.

The moving party sought leave to extend the time to seek leave to appeal a security for costs order that resulted in his answer being struck out.

The Divisional Court granted the extension, finding the moving party had the requisite intention to appeal and the proposed appeal had sufficient merit given the severe consequences of the underlying orders.

Leave to appeal was granted, and the underlying orders were stayed pending the disposition of the appeal.

The plaintiff appealed an order dismissing her motion to add a private snow removal contractor as a defendant in a slip and fall action against the City of Toronto.

The motion judge had found the plaintiff failed to exercise reasonable diligence by not inquiring about a contractor earlier.

The Divisional Court allowed the appeal, holding that without a specific trigger or reason to be put on notice, a plaintiff has no free-standing duty to inquire whether a municipality contracted out its snow removal.

The claim against the contractor was not discoverable until the City disclosed its involvement, and therefore was not statute-barred.

The moving party, HOOPP, brought a motion to quash an application for judicial review brought by the responding party.

The responding party sought survivor benefits from HOOPP following the death of her niece, but HOOPP determined the benefits were payable to the deceased's common law spouse.

The responding party sought judicial review of this decision.

HOOPP argued the Divisional Court lacked jurisdiction because HOOPP is a private pension plan, not a public body, and its decisions are not subject to public law remedies.

The court agreed, finding that HOOPP was not exercising a statutory power and its decisions were not of a public character.

The motion to quash was granted.

The appellants appealed two interlocutory orders made by a motions judge.

The first order prohibited the parties from bringing any summary judgment motions, and the second required the appellants to produce for discovery anyone who filed an affidavit in support of a summary judgment motion.

The Divisional Court allowed the appeals, finding that both orders were made prematurely, without an evidentiary foundation, and in a procedurally unfair manner, as the parties had not requested such relief nor had the opportunity to make submissions on it.

The appellants appealed a Master's decision refusing to set aside a Registrar's order dismissing their medical negligence action for delay.

The action was dismissed in 2013, but the appellants did not learn of this until 2019 due to their former lawyer's conduct.

The Divisional Court upheld the Master's decision, finding no error in the application of the Reid test.

The Master reasonably concluded that the defendants' interest in finality after a six-year delay outweighed the appellants' interest in a hearing on the merits, particularly given the appellants' potential claim against their former lawyer.

The applicant, an immigration lawyer, sought judicial review of Legal Aid Ontario's decision to remove him from its immigration and refugee panel due to billing irregularities.

The applicant argued the decision was unreasonable and procedurally unfair because he was denied an oral hearing.

The Divisional Court dismissed the application, finding the decision maker's reliance on admitted billing errors to establish a pattern of violations was reasonable.

The court also held that the administrative nature of the decision and the statutory scheme did not require an oral hearing, as the decision was based on admitted facts rather than credibility findings.

The appellant appealed a Small Claims Court decision dismissing her action against the municipality for property damage caused by falling tree branches.

She also brought a motion to admit fresh evidence regarding subsequent tree damage.

The Divisional Court dismissed the motion, finding the new evidence irrelevant to the issues at trial.

The appeal was also dismissed, as the trial judge made no error of law or palpable and overriding error of fact in concluding the municipality took reasonable care and did not cause a substantial interference with the appellant's property.

The moving party sought leave to appeal from two prior decisions, including an order restricting his ability to seek fee waivers.

The court had previously issued case management directions requiring the moving party to provide contact information, address the fee waiver issue, and set a deadline for serving motion materials, failing which the motions would be dismissed as abandoned.

The moving party failed to comply with the directions, aside from providing an email address.

Consequently, the court dismissed the motions for leave to appeal as abandoned.

The applicant sought to challenge an interlocutory case conference decision of the lower court, making scandalous and vexatious allegations against the presiding judge.

The Divisional Court issued a notice under Rule 2.1.01 considering dismissal of the application.

After receiving the applicant's submissions, which failed to address the court's concerns and repeated the scandalous allegations, the court dismissed the application as frivolous, vexatious, and an abuse of process.

The College of Physicians and Surgeons of Ontario moved for an order sealing the patient records of a complainant in a physician's appeal of a Health Professions Appeal and Review Board (HPARB) decision.

The Divisional Court dismissed the motion, finding that the College had not sought a sealing order at first instance before the HPARB.

The court held that the HPARB should control its own processes and develop its own jurisprudence on protective orders, and declined to permit the issue to be raised for the first time on appeal, particularly where the records were not highly sensitive and the complainant raised no privacy concerns.

The self-represented applicant sought to commence an application for judicial review of decisions made by the Human Rights Tribunal of Ontario.

The application was brought out of time.

Despite multiple case management directions instructing the applicant to bring a proper motion for an extension of time, the applicant failed to do so and instead submitted numerous deficient documents.

The court dismissed the application as frivolous, vexatious, and an abuse of process pursuant to Rule 2.1.01.

The moving party, the College of Nurses of Ontario, brought a motion to introduce further evidence on an appeal to address the appellant's allegation of a denial of procedural fairness.

The appellant brought a cross-motion to adduce responding evidence.

The single judge of the Divisional Court held that pursuant to s. 134(4)(b) of the Courts of Justice Act and Rule 61.16(2), a motion to admit further evidence on appeal must be made to the panel hearing the appeal.

Accordingly, the single judge lacked jurisdiction and adjourned the motion and cross-motion to be heard by the appeal panel.

The appellant appealed a summary trial decision that allowed the respondent repair shop to recover $30,358.06 for repairs to a vehicle from funds paid into court.

The trial judge had found that although the respondent's non-possessory lien was invalid and unenforceable under the Repair and Storage Liens Act due to a lack of signed acknowledgment, the appellant's payment of the disputed funds into court under s. 24 converted the invalid lien into a valid charge on the funds.

The Divisional Court allowed the appeal, holding that s. 24(13) cannot be used to turn an invalid, improperly registered lien into a valid one.

The respondent's claim was dismissed and the funds were ordered to be paid out to the appellant.

Following a successful application for judicial review where the impugned regulation was declared ultra vires but Charter claims were dismissed, the applicants sought costs of $153,499.07 on a partial indemnity basis.

The respondents argued for no costs or a maximum of $35,000.

The Divisional Court found the applicants' requested costs excessive given it was a one-day hearing and a large portion related to unsuccessful Charter claims.

The court fixed costs at $50,000 all inclusive.