ODC 2022

The moving parties brought motions for leave to appeal the order of Koehnen J. dated June 9, 2022.

The Divisional Court dismissed the motions for leave to appeal with no order as to costs.

The moving party mother sought a stay of a temporary order requiring her to return the child to the Guelph/Cambridge area pending her motion for leave to appeal.

The mother had relocated the child to Chatham without providing the required statutory notice to the father.

The court considered the test for a stay, focusing on the best interests of the child and the short timeframe before the leave motion would be heard.

The court ordered that the child continue to reside in the Guelph/Cambridge area but attend her new Chatham school virtually until the leave motion is decided.

The appellant appealed a final order varying spousal support, arguing the trial judge erred by excluding the respondent's post-separation income increases, setting the retroactivity date to 2018 instead of 2016, determining the separation income at $117,000, and using the low end of the Spousal Support Advisory Guidelines.

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

The court upheld the trial judge's conclusion that the respondent's income increases were unrelated to the marriage and that the appellant's evidentiary gaps justified a low-range SSAG award.

The appellant employer sought to amend its statement of defence to add a counterclaim against the respondent, alleging that the respondent's lawsuit against a former employee constituted intentional interference with economic relations and induced a breach of contract.

The Associate Justice dismissed the motion, finding the proposed claims untenable in law because commencing a civil action is not an unlawful act.

On appeal, the appellant raised a new argument based on the tort of abuse of civil process.

The Divisional Court dismissed the appeal, holding that new arguments should generally not be raised on appeal and that, in any event, the proposed counterclaim did not meet the test for abuse of process.

The applicant physician sought judicial review of decisions by the College of Physicians and Surgeons of Ontario (CPSO) to investigate her, impose interim restrictions, and subsequently suspend her medical license for issuing unjustified COVID-19 vaccine exemptions.

A group of anonymous patients also sought judicial review, arguing the investigation infringed their privacy and autonomy.

The Divisional Court quashed the patients' application for lack of standing.

The court dismissed the physician's application, finding the challenge to the investigation decision premature and the interim restriction and suspension decisions reasonable given the immediate risk to patient safety.

The court also granted the CPSO's motion for a publication ban to protect the identities of complainants.

The appeal was scheduled to be heard, but at the outset, counsel for the respondent raised a potential conflict of interest regarding one of the appellant's counsel, who had previously acted for the respondent in the same dispute.

The court adjourned the appeal and set a schedule for the respondent to bring a conflict motion, reserving the costs of the attendance to the judge hearing the motion or the appeal.

The applicant union sought judicial review of an interest arbitration award that declined to compress the wage grid for registered nurses and nurse practitioners.

The union argued the existing grid was discriminatory and that correcting it was exempt from the 1% compensation cap under Bill 124.

The Divisional Court dismissed the application, finding the arbitrator reasonably concluded that the interest arbitration process was not the appropriate forum to make the necessary adjudicative findings of specific Human Rights Code breaches by 131 separate employers, nor to usurp the ongoing pay equity process.

The applicants sought judicial review to quash a condition attached to their liquor and cannabis licences that prohibited the former owner from being employed in any capacity.

The Registrar imposed the condition under the Risk Based Licensing regime without disclosing the underlying risk assessment summary or providing particulars of the alleged infractions.

The Divisional Court allowed the application, finding that the Registrar breached the duty of procedural fairness by failing to provide adequate notice and disclosure, which prevented the applicants from knowing the case they had to meet.

The decisions were quashed and remitted for reconsideration.

The applicant teachers' association sought judicial review of an arbitrator's decision finding he lacked jurisdiction over a grievance regarding preparation, planning, and supervision provisions.

The arbitrator concluded these provisions were local terms, not central terms under the School Boards Collective Bargaining Act, 2014.

The Divisional Court applied the reasonableness standard and upheld the arbitrator's decision, finding his purposive and contextual interpretation of 'central terms' was consistent with the statutory scheme and legislative intent.

The applicant brought a motion to adjourn a scheduled hearing because she was working as a medic in Ukraine, citing unstable internet access and security concerns that would make it difficult to instruct counsel.

The respondent opposed the motion, noting the late request and scarce court resources.

Despite concerns about the late request and missed deadlines, the court granted the adjournment in the interests of justice to allow the applicant sufficient time to instruct counsel, making the new date peremptory on the applicant.

The appellant, a real estate agent, appealed the dismissal of her Small Claims Court action against two brokerages for unpaid commissions.

The appellant had submitted a conditional offer on behalf of clients that was not accepted by the vendors, and subsequently sued for the cooperating broker's commission.

The Divisional Court dismissed the appeal, finding that a conditional offer does not create a binding contract and the vendors had no obligation to accept it.

The court also rejected the appellant's claims of bias against the trial judge and upheld the trial costs awards.

The applicant sought judicial review of a decision by the Ministry denying it a grant under the Ontario Small Business Support Grant program.

The Ministry determined the applicant was ineligible because its door installation business constituted construction services.

The Divisional Court dismissed the application, finding the Ministry's interpretation of the eligibility criteria was reasonable and did not contravene the Ministry of Revenue Act.

The court also found no breach of procedural fairness, as adequate reasons were provided and the non-disclosure of the assessors' identities was justified.

The applicant employer sought judicial review of an arbitration award which held that, although the employer had the authority to change the pension plan under the collective agreement, it was estopped from freezing the Defined Benefits component until the expiry of the agreement.

The arbitrator found the employer made a clear representation in 1999 that employees choosing the Defined Benefits plan would remain in it until retirement, and the union detrimentally relied on this by losing the opportunity to negotiate protections.

The Divisional Court dismissed the application, finding the arbitrator's application of the doctrine of estoppel and his factual findings were reasonable and entitled to deference.

The moving party sought an extension of time to file a Notice of Appeal from a Landlord and Tenant Board order evicting him for non-payment of rent.

The moving party, a former superintendent, argued his employment was unlawfully terminated due to a COVID-19 vaccine mandate.

The Divisional Court dismissed the motion, finding the proposed appeal lacked merit as it did not raise an error of law, and that further delay would cause ongoing prejudice to the landlord given the accumulating rental arrears.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board order terminating the tenancy.

The tenant, who was incarcerated, failed to appear and had previously failed to comply with strict conditions for an extension of time to appeal, including paying rent and arrears.

The court found the notice of appeal identified no grounds of appeal or questions of law.

The appeal was deemed manifestly devoid of merit and quashed, with the automatic stay lifted.

The defendants brought a motion for leave to appeal an interlocutory order.

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 party brought a motion for leave to appeal an order and a motion to adduce fresh evidence.

The Divisional Court dismissed both motions and awarded costs to the responding party in the amount of $1,443.75.

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

The Divisional Court dismissed the motion for leave to appeal.

No costs were ordered as the responding party did not file any materials.

The appellant father appealed a motion judge's order that imposed testing requirements and access restrictions based on his COVID-19 vaccination status, and raised issues regarding the vaccination of the children.

The Divisional Court set aside the restrictions related to the father's vaccination status, finding the motion judge erred in imposing them.

The court reserved its decision on the vaccination of the children and the ultimate parenting schedule, directing the parties to attempt to agree on a temporary schedule in the interim.

The moving party sought an extension of time to seek leave to appeal a temporary order granting the responding party sole care of their child pending further agreement or order.

The moving party missed the original hearing due to communication issues after insisting on receiving materials by mail or fax.

The court applied the test for extending time and found that the moving party did not form an intention to appeal within the required period, and that the proposed appeal lacked merit as it did not meet the high threshold for leave to appeal an interlocutory order.

The motion was dismissed with costs awarded to the responding party.