ODC 2023

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

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

The self-represented moving party brought a motion for leave to appeal an unreported order of Koehnen J. dated March 6, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the fixed amount of $5,000.

The moving parties brought motions for leave to appeal the orders of the motion judge dated March 22, 2023.

The Divisional Court dismissed the motions for leave to appeal and awarded costs to the responding party in the aggregate amount of $20,000.

The appellant sought to appeal a Superior Court decision that dismissed his application as an abuse of process.

The Divisional Court directed the parties to provide submissions on whether the appeal should be dismissed under Rule 2.1 of the Rules of Civil Procedure.

The court found that it lacked jurisdiction to hear the appeal under the Courts of Justice Act, as the order appealed from was final and should have been directed to the Court of Appeal.

Alternatively, the court found the appeal to be frivolous and vexatious on its face, as it sought to relitigate matters already adjudicated in prior proceedings.

The appeal was dismissed.

The landlords obtained an eviction order from the Landlord and Tenant Board for personal use of the rental unit.

The tenants appealed the decision to the Divisional Court, alleging procedural unfairness and raising various irrelevant issues.

The landlords moved to quash the appeal.

The court granted the motion to quash, finding that the Board's decision was based on straightforward factual findings that were not subject to appeal, and that the tenants' procedural fairness claims were without foundation.

The appeal was quashed and the stay of eviction was lifted.

The applicant sought judicial review of an interim order by the Animal Care Review Board regarding the removal of 41 cats from her home.

The court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure, considering whether to dismiss the application as frivolous, vexatious, or an abuse of process.

The court found the application was moot because the Board had already decided not to dismiss the applicant's appeals and had scheduled further hearings to address her constitutional issues.

The court also found the application premature, as it challenged an interim order before the administrative proceedings were completed.

The application for judicial review was dismissed.

The appellant landlord appealed a Landlord and Tenant Board decision finding that the respondent tenant's lease was residential, not commercial.

The landlord had locked the tenant out for non-payment of rent, claiming the Commercial Tenancies Act applied.

The Divisional Court dismissed the appeal, holding that the landlord could not oust the Board's jurisdiction by unilaterally locking the tenant out.

The court further found no error of law in the Board's application of section 202 of the Residential Tenancies Act to ascertain the real substance of the transaction, despite the lease being labeled commercial.

The Director of Employment Standards sought judicial review of Ontario Labour Relations Board decisions regarding the calculation of overtime pay for commissioned salespersons under the Employment Standards Act.

The Divisional Court upheld the Board's interpretation that the 'regular rate' for calculating overtime is based only on commissions earned during non-overtime hours.

However, the Court found the Board erred in allowing the employer to reconcile weeks where it paid more than the statutory minimum for overtime against weeks where it underpaid.

The application was allowed in part and remitted to the Board for recalculation.

The moving party, Sun Life Assurance Company of Canada, brought two motions for leave to appeal the orders of the lower court regarding summary judgment and certification.

The Divisional Court dismissed both motions for leave to appeal.

The court awarded agreed aggregate costs of $25,000 to the responding party.

The moving parties brought a motion for leave to appeal an unreported order of the motion judge dated May 8, 2023.

The Divisional Court dismissed the motion for leave to appeal in a brief endorsement.

Costs of $20,000 were awarded to the responding parties.

The Law Society of Ontario appealed a decision of the Law Society Tribunal Appeal Division, which upheld a nine-month suspension for a lawyer convicted of possessing child pornography.

The appellant argued the original hearing panel lacked jurisdiction because it did not include a lay adjudicator, contrary to O. Reg. 167/07.

The Divisional Court majority agreed, finding the panel was improperly constituted and lacked jurisdiction, as there was no evidence the Chair exercised discretion to depart from the mandatory requirement.

The appeal was granted and the matter remitted for a new hearing.

The appellant, a not-for-profit corporation owning a mobile home park, appealed a Landlord and Tenant Board decision finding that the respondent leaseholder was a 'tenant' under the Residential Tenancies Act.

The appellant argued that the respondent, as a 'member' of the non-share corporation, fell within the statutory exclusion for a 'shareholder' of a corporation that owns the residential complex.

The Divisional Court dismissed the appeal, upholding the Board's textual, contextual, and purposive interpretation that a 'member' of a not-for-profit corporation is not equivalent to a 'shareholder' for the purposes of the exclusion.

The applicant sought judicial review of a Licence Appeal Tribunal decision regarding statutory accident benefits.

The Divisional Court declined to exercise its discretion to hear the application, finding that the applicant ought to have pursued a statutory appeal under s. 11(6) of the Licence Appeal Tribunal Act, 1999, which limits appeals to questions of law.

The court held there were no exceptional circumstances to justify bypassing the statutory appeal mechanism and declined to convert the application into an appeal.

The application was dismissed without prejudice to the applicant seeking an extension of time to pursue a statutory appeal.

The appellant father appealed the dismissal of his contempt motion against the respondent mother for failing to comply with court-ordered access.

The motion judge had found the mother's non-compliance was not intentional, as she could not afford travel due to the father's failure to pay ordered costs, and that Quebec, where the child had lived for over three years, was the proper jurisdiction.

The Divisional Court dismissed the appeal, finding no error in the motion judge's application of the test for contempt or her determination that Ontario was no longer the appropriate jurisdiction.

The tenants appealed a Landlord and Tenant Board order terminating their tenancy and evicting them for smoking marijuana in their unit, which caused health issues for the landlords' children.

The tenants argued the notice of termination was invalid because it failed to specify the exact times they smoked, and that they were denied procedural fairness during the hearing.

The Divisional Court dismissed the appeal, finding that the Residential Tenancies Act requires grounds, not specific times, and that the notice provided sufficient detail.

The court also found no procedural unfairness in the Board's conduct of the hearing.

The appellants appealed an interlocutory order requiring them to produce a witness statement taken by an adjuster from an employee after litigation commenced.

The motions judge had found that litigation privilege over the statement was waived because its contents were discussed and particulars provided during examination for discovery.

The Divisional Court allowed the appeal, holding that the motions judge erred by failing to apply the established principle that a party must disclose relevant facts from a privileged document during discovery without waiving privilege over the document itself.

The appellants appealed a Capital Markets Tribunal decision finding that their business of trading in Contracts for Difference (CFDs) constituted trading and advising in unregistered securities.

The appellants argued that the CFDs were not 'investment contracts' because the CFD providers were counterparties and did not share in profits or losses, thus failing the 'common enterprise' component of the legal test.

The Divisional Court dismissed the appeal, holding that the Tribunal correctly applied a flexible approach to the investment contract test and made no palpable or overriding error in finding that the investors were dependent on the CFD providers, thereby establishing a common enterprise.

The appellant appealed a summary judgment dismissing his claim to the proceeds of the sale of his brother and sister-in-law's matrimonial home.

The appellant claimed he advanced $700,000 for the down payment and held a beneficial interest via a trust declaration and oral agreement.

The Divisional Court upheld the motion judge's findings that there was no triable issue regarding the advanced funds, the oral trust violated the Statute of Frauds, and the written trust declaration was unconscionable and coerced from the respondent wife.

The appeal was dismissed with costs.

The applicants raised a preliminary objection seeking the recusal of Leiper J. from the panel on the basis of a reasonable apprehension of bias.

The applicants argued that Leiper J.'s involvement in two prior decisions involving the same parties, including a refusal to grant a stay that was later partially reversed by the Court of Appeal, met the threshold for disqualification.

The Divisional Court dismissed the objection, finding that the applicants failed to meet the heavy burden of rebutting the strong presumption of judicial impartiality, noting that prior involvement alone does not establish bias and there were no allegations of improper conduct.

The applicant municipality sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision granting loss of earnings benefits to a firefighter who was terminated for cause but subsequently diagnosed with work-related post-traumatic stress disorder.

The Tribunal applied the 'worker conduct' line of cases, finding that the worker's condition rendered him unemployable and that his loss of earnings resulted from the compensable injury rather than his termination.

The Divisional Court dismissed the application, holding that the Tribunal's interpretation of section 43 of the Workplace Safety and Insurance Act and its assessment of the medical evidence were reasonable.