Administrative Law - ODC

The appellant appealed a decision of the Ontario Energy Board (OEB) which found that its natural gas gathering pipelines were properly assessed as 'pipe lines' under s. 25(1) of the Assessment Act for municipal tax purposes.

The appellant argued the pipelines were gathering lines, not transmission lines, and that the OEB should have applied the technical industry meaning.

The Divisional Court applied a reasonableness standard of review and upheld the OEB's decision, finding it was reasonable for the OEB to apply the ordinary meaning of the words 'transportation or transmission' and to infer from assessment roll numbers that the pipelines had been previously designated as transmission pipelines.

The intervener, Ontario Petroleum Institute, brought a motion to introduce fresh evidence in the form of an affidavit on an appeal.

The respondent, Ontario Energy Board, brought a cross-motion to vary a previous order granting leave to file the evidence.

The Divisional Court treated the motions as a single issue of whether to admit the affidavit.

Applying the Palmer test, the court admitted the affidavit but ordered redactions of irrelevant facts and inadmissible opinion evidence.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they discriminated against the respondents on the basis of sex, gender identification, and sexual orientation.

The applicants argued the adjudicator breached procedural fairness by admitting a radio interview, awarded unreasonable damages, and erred in finding personal liability.

The Divisional Court dismissed the application, finding no procedural unfairness as the applicants were aware of the evidence and did not object, and holding that the damages and personal liability findings were reasonable.

The respondent school board sought $60,000 in partial indemnity costs following the dismissal of the applicants' application for judicial review regarding a school closure.

The applicants argued they should be shielded from costs as public interest litigants, or alternatively that costs should be fixed at $15,000.

The Divisional Court rejected the public interest immunity argument, noting the applicants acted partly in self-interest and adopted a 'no holds barred' approach that increased costs.

Applying the principle of proportionality, the court fixed costs payable to the respondent at $35,000 inclusive of disbursements and HST.

The mother, sister, and two brothers of a murder victim appealed a decision of the Criminal Injuries Compensation Board denying them compensation for nervous shock.

The Board had denied compensation based on the deceased's contributory conduct and a finding that the claimants did not meet the criteria for nervous shock because they did not witness the murder.

The Divisional Court allowed the appeal for three of the claimants, finding the Board erred in law by failing to conduct a proportionality analysis between the victim's conduct and the offenders' actions.

The Court also held the Board erred in its application of the nervous shock criteria, as the common law does not strictly require claimants to directly witness the event if they come upon the immediate aftermath.

The City of Kawartha Lakes appealed a decision of the Environmental Review Tribunal upholding a Ministry of the Environment order requiring the City to remediate environmental contamination on its property.

The contamination was caused by a furnace oil leak from an adjacent private property.

The City argued it was an innocent owner and the Tribunal erred by excluding evidence regarding who was at fault for the spill.

The Divisional Court dismissed the appeal, finding that the Tribunal's decision to exclude fault evidence was reasonable, as the Environmental Protection Act's primary purpose is environmental protection, and fault-finding is better suited for civil courts.

The applicant sought judicial review of the Director of the Family Responsibility Office's refusal to enforce a child support order.

In 2001, the applicant had repeatedly advised the Director that the arrears were paid directly to her, leading the Director to clear the arrears.

Six years later, the applicant claimed she had been duped by the payor and asked the Director to reinstate and enforce the arrears.

The Director refused, citing a dispute over the arrears and advising the applicant to seek redress from the court.

The Divisional Court dismissed the application, finding the Director's decision reasonable as there was a real and substantial dispute over the arrears, and the Director is not mandated to investigate or resolve such disputes.

The moving parties sought leave to appeal a decision of the Ontario Municipal Board regarding a secondary plan.

The proposed appeal challenged the OMB's findings that active parkland and developer-dedicated parklands are not permitted in 'protected countryside' areas under the Greenbelt Plan, and its approval of a municipal policy to acquire such lands at minimal or no cost.

The Divisional Court dismissed the motion, finding that the OMB's determinations involved the interpretation of policy statements rather than questions of law, and were therefore not subject to appeal.

The appellant appealed a $100 costs order made by the Discipline Committee of the College of Nurses of Ontario for late notification of a settlement.

The Divisional Court found the costs award unreasonable because the Committee made a factual error regarding disclosure, failed to consider the College's shared responsibility for the delay, and provided no reasons for departing from the parties' joint submission that no costs should be awarded.

The appeal was allowed and the costs order was set aside.

The applicant sought judicial review of a decision by the Discipline Committee of the College of Physicians and Surgeons of Ontario, which ordered costs as a condition of an interim decision to adjourn a hearing.

The Divisional Court granted the application and set aside the decision, holding that the Discipline Committee lacks the express statutory authority required to order costs on an adjournment.

The applicant, a deaf person, filed a human rights complaint alleging that the failure of the Building Code to require rear window captioning in movie theatres constituted discrimination.

The Ontario Human Rights Commission decided not to refer the complaint to the Human Rights Tribunal, finding insufficient evidence of a denial of a service and noting that the Tribunal lacks jurisdiction to amend legislation.

The applicant sought judicial review.

The Divisional Court dismissed the application, holding that the Commission's gate-keeping decision was not patently unreasonable, as the Tribunal cannot read in provisions to the Building Code to make it comply with the Human Rights Code.

The applicant employer sought judicial review of a labour arbitrator's decision forbidding the implementation of a finger scan system for checking employees in and out of the workplace.

The employer argued the arbitrator lacked jurisdiction and the decision was patently unreasonable.

The Divisional Court dismissed the application, finding that the employer had conceded jurisdiction before the arbitrator and that the arbitrator's balancing of the employer's interests against the employees' privacy interests was not patently unreasonable.

Following an appeal of a professional discipline decision where the appellant succeeded on one of twelve grounds, both parties sought costs.

The Divisional Court found that success was not evenly divided, as the appellant failed to upset the basic findings of professional misconduct against him.

The Court awarded costs to the respondent College on a partial indemnity basis, reduced to reflect the appellant's limited success, fixing the amount at $9,000 inclusive of disbursements and GST.

The applicants, chartered accountants charged with professional misconduct, brought a motion for review of an order dismissing their request to compel the respondent's Professional Conduct Committee to file a record of proceedings under section 10 of the Judicial Review Procedure Act.

The Divisional Court dismissed the motion, holding that the committee's power to investigate and charge is not a 'statutory power of decision' as defined in the Act, and therefore section 10 does not apply.

The applicant union sought judicial review of an arbitrator's award concerning the interpretation of a collective agreement and an employee's status under the Employment Standards Act.

The Divisional Court applied the reasonableness standard of review.

The court found the arbitrator's analysis of the collective agreement and the employee's status to be reasonable and dismissed the application with costs.

The applicant, Homeland Oasis Corp., sought an adjournment of its application for judicial review against the Town of Markham to obtain documents.

The court found that arguments regarding the merits of the application and the relevance of the documents were premature.

The court granted the adjournment on the condition that the applicant proceed immediately under section 51 of the Municipal Freedom of Information Act to obtain the documents and report back by October 15, 2004.

The appellant physician appealed a decision of the Discipline Committee revoking his certificate of registration for sexual and professional misconduct involving a 15-year-old vulnerable patient.

The appellant argued the penalty was unduly harsh and that the committee failed to properly weigh expert and character evidence regarding his mental disorder.

The Divisional Court applied the reasonableness standard of review and found the committee's findings and the penalty of revocation were reasonably supported by the evidence, given the overwhelming aggravating factors.

The appeal was dismissed.

The Ontario Human Rights Commission brought a motion to strike an affidavit from the appeal book in an appeal from a human rights tribunal decision.

The affidavit contained notes and subjective observations regarding the tribunal's conduct during the hearing, which the Commission argued went beyond permissible gap-filling evidence.

The court dismissed the motion, finding the affidavit was not fresh evidence but was relevant to the issues of bias and partiality raised on appeal.

The Township of Dymond brought an application for judicial review to set aside a municipal restructuring order made by the Minister of Municipal Affairs and Housing that amalgamated it with two other towns.

The applicant argued that the Minister lacked jurisdiction under the former Municipal Act, breached natural justice by not holding a hearing, and violated the spirit of the legislation.

The Divisional Court dismissed the application, finding that the statutory pre-conditions for the 'double majority' rule were met, rights had accrued before the new Act came into force, and there was no requirement for a hearing before the Minister issued the order.

The applicant employer sought judicial review of an arbitrator's decision dismissing its policy grievance.

The grievance alleged that the respondent union violated the collective agreement by maintaining that bargaining unit employees were not required to work on paid holidays without their consent.

The Divisional Court found that the arbitrator's interpretation of the collective agreement was supported by the contractual language.

Although the arbitrator erred in referencing the 'no contracting out' provision of the Employment Standards Act, 2000, the court concluded that this was not the basis for his decision and upheld his findings as reasonable.

The application for judicial review was dismissed.