ODC 2021

The appellants appealed a Small Claims Court decision awarding the respondent $25,000 for a concealed mould defect in a house she purchased from them.

The appellants argued the trial judge erred by admitting hearsay evidence from a contractor, imputing knowledge of the defect, and acting unfairly during the trial.

The Divisional Court dismissed the appeal, finding that the trial judge properly exercised discretion to admit the hearsay evidence under the Courts of Justice Act and that overwhelming circumstantial evidence supported the finding that the appellants knew about and concealed the mould.

Following the release of its decision allowing the Crown's appeal and setting aside a class action certification order, the Divisional Court entertained post-decision submissions from the respondent based on two new Court of Appeal decisions regarding state liability in negligence.

The court concluded that the new decisions applied settled law and did not alter its previous reasoning.

The court amended its previous disposition to clarify that while the appeal is allowed and the certification order is set aside, the underlying action is not dismissed, leaving that issue for the parties to address below.

The appellant employee appealed a Small Claims Court decision regarding her wrongful dismissal.

After her position became redundant, the parties agreed to ten weeks of working notice.

The employer subsequently terminated her early, alleging job abandonment when she took pre-scheduled vacation.

The trial judge found the employer breached the agreement and awarded the balance of the ten weeks' pay.

On appeal, the employee argued the breach rescinded the contract, entitling her to common law reasonable notice.

The Divisional Court dismissed the appeal, finding the agreement was binding and the employer's breach constituted a repudiation, not a rescission, as the employee had already received half the benefit of the agreement.

The applicant sought judicial review of a decision by the Office of the Independent Police Review Director, which upheld a police chief's finding that officers did not engage in discreditable conduct.

The officers had required the applicant to leave her parents' home at the homeowner's request, despite the applicant having registered a Certificate of Pending Litigation on the property.

The Divisional Court held that the police acted reasonably and within their discretion to prevent a breach of the peace and enforce the homeowner's rights.

The application for judicial review was dismissed without costs.

The moving party brought a second motion under Rule 59.06 to reopen a 2016 decision of the Divisional Court that dismissed her appeal from a professional discipline decision.

The court issued a notice under Rule 2.1, noting the motion appeared contrary to the finality principle and res judicata.

Finding the moving party's response asserting undisclosed 'new evidence' to be frivolous, the court dismissed the motion as frivolous, vexatious, and an abuse of process, and ordered that she be prohibited from bringing further steps without prior judicial permission.

The respondent, an actor, sued her union (ACTRA) and its rights society in Small Claims Court, alleging they miscalculated and underpaid her royalties (Use Fees) for a movie performance.

The union brought a motion to strike the claim, arguing the court lacked jurisdiction because the dispute arose from a collective agreement.

The Small Claims Court dismissed the motion.

On appeal, the Divisional Court allowed the appeal, holding that the essential character of the dispute concerned the interpretation, application, and administration of the collective agreement and the union's duty of fair representation.

Therefore, the dispute fell within the exclusive jurisdiction of the Ontario Labour Relations Board or a labour arbitrator.

The moving parties brought a motion for leave to appeal the order of Healey J. dated May 21, 2021.

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

The applicant school board sought judicial review to quash clauses 10(2)(i) and (ii) of O. Reg. 20/98 under the Education Act as ultra vires.

The impugned regulations restrict the availability of education development charges (EDCs) to circumstances where a school board does not have board-wide surplus capacity.

The applicant argued this undermined the purpose of the EDC regime, which is to ensure growth pays for growth.

The Divisional Court dismissed the application, finding the regulations were consistent with the statutory grant of authority and the broader scheme of the Education Act, which includes strict financial oversight and efficient use of education funds.

The applicant pharmacy sought judicial review of a decision by the Executive Officer of the Ontario Drug Benefit Program to revoke its billing privileges.

The Executive Officer found the pharmacy had made over $87,000 in unsubstantiated billings and over $62,000 in improper billings.

The Divisional Court dismissed the application, finding the Executive Officer's decision was reasonable and that the applicant was not denied procedural fairness.

The applicant sought judicial review of an Ontario Labour Relations Board decision finding that its poultry service workers were not exempt from the Employment Standards Act under the farm worker exemption.

The Board had concluded that because the employees provided services to multiple farms, they were not employed 'on a farm' within the meaning of the exemption.

The Divisional Court applied the reasonableness standard of review and found that the Board's interpretation was consistent with its past decisions and struck a reasonable balance between the purposes of the Act and the exemption.

The application for judicial review was dismissed.

The applicant sought judicial review of an Ontario Labour Relations Board decision determining he was not entitled to severance pay under s. 64 of the Employment Standards Act.

The Board had concluded that the employer's payroll calculation for the $2.5 million threshold was restricted to its Ontario payroll, excluding its global payroll.

The Divisional Court found the Board's interpretation unreasonable, holding that the calculation of payroll under s. 64 is not restricted to Ontario employment and must include global payroll.

The application was allowed and the matter remitted to the Board.

The Registrar appealed a Licence Appeal Tribunal (LAT) decision directing the Registrar not to revoke the respondent's funeral preplanner licence.

The respondent had misused client funds, but the LAT found she did not personally benefit and her past conduct did not give reason to believe she would fail to act with honesty and integrity in the future.

The Divisional Court dismissed the appeal, finding the LAT made no reviewable errors in its application of section 14(1)(b)(ii) of the Funeral, Burial and Cremation Services Act, 2002, and properly considered the respondent's motivations.

The appellant appealed a Small Claims Court decision ordering him to pay the balance owing on a restoration contract.

The appellant argued the trial judge erred in finding a fixed-price contract, assessing deficiencies, and adding the respondent's corporation as a plaintiff at the start of trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the contract and deficiencies.

The court also held that adding the corporate plaintiff was either done on consent or was a permissible correction of a misnomer, as the appellant knew he was dealing with the individual respondent's company and suffered no prejudice.

The appellant purchased commercial property subject to an easement, with a vendor take-back mortgage that would be reduced by $442,000 if the vendor failed to register a valid release of the easement within one year.

The vendor obtained a court order discharging the easement and registered it two days before the deadline, but the order was subsequently appealed.

The Divisional Court allowed the purchaser's appeal, holding that while a court order can satisfy the requirement for a release, an order subject to subsisting appeal rights does not provide the bargained-for certainty of good title.

The purchaser was therefore entitled to the $442,000 reduction in the mortgage principal.

The appellant appealed a motion judge's order dismissing her motion to change a previous order regarding custody, access, and residence, and ordering her to pay $540 per month in child support for two children.

The Divisional Court found no error in the motion judge's conclusion that there was no material change in circumstances to justify varying the custody order, noting the children's ages and expressed wishes.

The court also held that the appellant failed to demonstrate a palpable and overriding error in the motion judge's findings regarding her income and the dependency status of one of the children.

The appeal was dismissed.

The appellant grandparent appealed a motion judge's decision dismissing his motion to be added as a party to child protection proceedings concerning his grandchild.

The appellant argued the motion judge failed to apply the five-part test for adding parties and failed to give reasons for denying alternative relief for participant status.

The Divisional Court dismissed the appeal, finding the motion judge substantively considered the relevant factors and correctly concluded that adding the appellant was not in the child's best interests, as it would unduly prolong proceedings and the appellant lacked a viable competing plan.

The court also held that the appellant did not meet the statutory precondition of providing continuous care for six months to qualify for participant status.

The applicant sought leave to appeal an order of the motion judge dated January 11, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $2,500 on a partial indemnity scale to the respondents.

The moving party brought a motion for leave to appeal the order of Ferguson J. dated February 2, 2021.

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

The moving party brought a motion for leave to appeal an unreported order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $2,500.

The applicant sought judicial review of the City of Markham's alleged decisions to plan and approve a four-lane collector road crossing protected Greenbelt lands.

The City argued the application was premature because the environmental assessment and planning processes were ongoing and no final location for the road had been determined.

The Divisional Court agreed, holding that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until they are complete.

The application was dismissed as premature.