ODC 2023

Eight motions were brought for leave to intervene in an application for judicial review of an interim decision of the Human Rights Tribunal of Ontario.

The underlying decision found that the Tribunal had concurrent jurisdiction with labour arbitrators to determine claims of discrimination and harassment falling within the scope of a collective agreement.

The court granted party status to the individuals and organizations who had party status in the proceeding below, and granted friend of the court status to two other organizations.

Three other organizations were denied leave to intervene to avoid duplication and maintain balance in the perspectives presented.

The applicant sought judicial review of a decision by the Office of the Independent Police Review Director (OIPRD) to screen out her complaints regarding a police homicide investigation.

The OIPRD had determined the complaints were frivolous and that police have inherent discretion in conducting investigations.

The Divisional Court dismissed the application for judicial review under Rule 2.1.01 of the Rules of Civil Procedure, finding it frivolous because mandamus is not available to compel police to investigate a matter in a particular way.

The applicant moved to strike out an affidavit delivered by the respondent in response to an application for judicial review of a Human Rights Tribunal of Ontario decision.

The applicant argued the affidavit did not fall within the narrow exceptions permitting a party to supplement the record of proceedings.

The court found that the bulk of the affidavit improperly appended and discussed documents already in the record.

However, the court noted that evidence regarding an unrecorded oral ruling could fall within the exception for procedural defects not apparent on the record.

The court struck the affidavit but granted leave for both parties to deliver new affidavit evidence strictly limited to their recollection of whether an oral ruling was made.

The appellant father appealed a summary judgment order placing his twin children in extended society care.

The children, who are of First Nations heritage, had been in the care of the society since birth.

The appellant failed to meaningfully participate in the appeal hearing.

The Divisional Court reviewed the motion judge's findings regarding the lack of a genuine issue for trial, the best interests of the children regarding access, the absence of viable kinship placements, and the adequate consideration of the children's Indigenous heritage.

Finding no palpable and overriding error or error of law, the court dismissed the appeal.

The appellant appealed an order striking his pleadings in a family law dispute for failure to pay support.

The appeal was brought to the Divisional Court, but the parties agreed the underlying order was final and should have been appealed to the Court of Appeal.

The respondent on appeal sought to dismiss the appeal for lack of jurisdiction, while the appellant sought a transfer under s. 110 of the Courts of Justice Act.

The court declined to transfer the appeal, finding it lacked merit and the appellant failed to move expeditiously after being notified of the jurisdictional error.

The appeal was dismissed with costs of $28,000 awarded to the respondent.

The appellant appealed a Licence Appeal Tribunal (LAT) decision dismissing his claim for a catastrophic impairment designation following a motor vehicle accident.

The appellant argued the LAT erred in law by failing to properly assess his mental and pain disorders and by ignoring key psychiatric evidence.

The LAT had subsequently issued a reconsideration decision that supplemented its original reasons and addressed these alleged errors, concluding that even if it had erred, the result would not change.

The Divisional Court dismissed the appeal, holding that the LAT acted within its jurisdiction under its reconsideration rules to review the evidence in light of alleged legal errors and confirm its original decision.

The appellant appealed a Licence Appeal Tribunal (LAT) decision that time-barred her application for a catastrophic impairment designation.

The LAT found the two-year limitation period expired because the appellant received the denial letter on the day it was written.

The Divisional Court allowed the appeal, finding the LAT erred in law by making a material finding of fact without evidence and by reversing the onus of proof onto the appellant to show when the letter was received.

The matter was remitted to the LAT for a new hearing.

The appellant tenant appealed a Landlord and Tenant Board (LTB) decision terminating her tenancy for non-payment of rent, as well as the subsequent review decision upholding the eviction.

The appellant argued she was denied procedural fairness because she allegedly did not receive the notice of hearing, was told by the landlord's agent not to attend, and was denied access to duty counsel.

The Divisional Court dismissed the appeal, finding no errors of law.

The court noted the LTB's factual findings regarding service of the notice and the appellant's lack of diligence were not appealable, and an official transcript refuted her claim about being denied duty counsel.

The moving party brought a motion for leave to appeal an order dated February 17, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $4,700.

The moving parties brought a motion for leave to appeal the order of the motion judge dated January 24, 2023.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

The moving party brought a motion for leave to appeal an order dated January 16, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $2,000 all inclusive.

The applicant, a Justice of the Peace on long-term disability, sought judicial review of a decision by the Justices of the Peace Review Council recommending her removal from office.

The Council found she committed judicial misconduct by practicing law without a license or insurance on three occasions.

The applicant argued the hearing panel breached procedural fairness by not granting a further adjournment and that the penalty was unreasonable due to her cognitive disabilities.

The Divisional Court dismissed the application, finding the hearing was procedurally fair and the recommendation for removal was reasonable given the lack of reliable medical evidence supporting a cognitive deficit and the severity of the misconduct.

The defendants appealed an interlocutory order regarding the admissibility and production of compelled evidence in a civil contempt motion arising from alleged breaches of a Mareva order.

The plaintiffs cross-appealed the motion judge's decision that answers to undertakings and further document production could not be compelled while the contempt motion was outstanding.

The Divisional Court upheld the motion judge's finding that evidence compelled prior to the contempt motion was admissible and did not violate sections 7, 11(c), or 13 of the Charter.

However, the court allowed the cross-appeal, finding that the motion judge erred in prematurely ruling on the admissibility of future answers to undertakings and in deferring the production motion.

The court held that the obligation to comply with the Mareva order continues despite the contempt motion, and admissibility should be determined when the evidence is tendered, based on whether the contempt motion is predominantly coercive or penal.

Following the dismissal of the applicant's judicial review application, the court issued a supplementary endorsement fixing the respondent's partial indemnity costs.

On consent of the parties, costs were fixed at $30,000, payable by the applicant.

The applicant brought a motion for leave to appeal an order dated January 20, 2023.

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

The plaintiff brought a motion for leave to appeal the order of RSJ Ricchetti dated January 17, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the defendant in the amount of $7,500.

The defendant brought a motion for leave to appeal the order of Belobaba J. dated December 20, 2022, regarding a certification motion.

The Divisional Court granted leave to appeal and noted that the parties could apply to the Court of Appeal to have this appeal heard together with the pending appeal of the dismissal of the balance of the certification motion.

No costs were awarded as costs outlines were not filed.

The appellant moved for a stay of an ongoing Licence Appeal Tribunal (LAT) proceeding regarding his claim for statutory accident benefits, pending the determination of his application for judicial review.

The underlying judicial review challenged an interlocutory LAT decision denying the appellant's request to convert a written hearing into an oral hearing.

The Divisional Court dismissed the motion for a stay, finding that the application for judicial review was premature as the LAT proceedings had not yet concluded, and the appellant failed to establish exceptional circumstances to justify court intervention at this stage.

Following the dismissal of the appellant's appeal from a finding of professional misconduct by the Discipline Committee, the respondent sought partial indemnity costs of $50,000.

The appellant argued for no costs or a maximum of $5,000, claiming the appeal raised an issue of public importance.

The Divisional Court rejected the no-costs argument, noting the appellant re-litigated factual issues, attacked the integrity of the discipline process, and constantly evolved his grounds of appeal, which increased the respondent's costs.

The court awarded the respondent costs of $35,000 inclusive of HST and disbursements.

The applicant employer sought judicial review of an arbitrator's interlocutory decision finding that the employer engaged in prima facie discrimination by denying a creed-based exemption to its COVID-19 vaccination policy.

The Divisional Court raised the issue of prematurity, as the arbitrator had bifurcated the hearing and had not yet determined whether the employer could accommodate the grievor without undue hardship.

The Court dismissed the application for judicial review as premature, finding no exceptional or extraordinary circumstances to justify departing from the general rule against fragmenting ongoing administrative proceedings.