Administrative Law - ODC

The moving party employer brought a motion to quash an application for judicial review filed by the responding party union on the basis of prematurity.

The union sought to review a labour arbitrator's preliminary award regarding time limits under the collective agreement, arguing exceptional circumstances existed because the grievance was a test case with broad implications.

The Divisional Court held that the application was premature, finding that an agreement to treat the underlying decision as a test case does not on its own justify early intervention and that the circumstances were not exceptional.

The motion to quash was allowed and the application was dismissed.

The moving party sought leave to appeal three decisions of the Information and Privacy Commissioner to the Divisional Court.

The respondents requested the court initiate the process under Rule 2.1 of the Rules of Civil Procedure to dismiss the proceeding.

The court found that there is no statutory right or jurisdiction to seek leave to appeal from a decision of the IPC to the Divisional Court.

The proceeding was dismissed as frivolous, vexatious, or an abuse of process under Rule 2.1.

The Toronto Star requested records from the LCBO regarding the number of shoplifting incidents at its stores.

The LCBO denied the request under various FIPPA exemptions, arguing disclosure would endanger safety, facilitate crime, and harm economic interests.

The Information and Privacy Commissioner ordered disclosure.

On judicial review, the Divisional Court (majority) set aside the IPC's order, finding the adjudicator misapplied the standard of proof, misapprehended evidence regarding the risk of targeted thefts, and provided inadequate reasons.

The Death Investigation Oversight Council (DIOC) brought a motion for a sealing order over autopsy files and a redaction order for witness identities in its record of proceedings, which was filed in response to an application for judicial review by Dr. Jane Turner.

Applying the Sherman Estate test, the Divisional Court held that while identifying information in the autopsy files must be redacted to protect the dignity of the deceased infants and their families, sealing the entire files was unnecessary.

The court also refused to redact the identities of witnesses interviewed during the DIOC's investigation, finding that the open court principle did not pose a serious risk to the public interest in witness candour.

The moving party brought a motion for leave to appeal a decision of the Assessment Review Board that reclassified its student residence from the residential property class to the multi-residential property class.

The Board's decision relied on a previous ruling to interpret the term 'self-contained unit'.

The Divisional Court granted leave to appeal, finding there was reason to doubt the legal correctness of the Board's statutory interpretation and that the issue was of sufficient importance, as it affected over 80 properties and established a new approach to defining self-contained units.

The applicant, a foreign-trained medical doctor, sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing his application for lack of standing.

The HRTO had found that the applicant failed to allege his own rights were infringed regarding the allocation of residency positions.

The Divisional Court held that the HRTO's decision was unreasonable because the applicant had included evidence in his application showing he had applied for and been denied a residency position.

The application for judicial review was granted and the matter remitted to the HRTO.

The appellant, a former Director of Education, appealed a decision of the Ontario College of Teachers Discipline Committee finding him guilty of professional misconduct for plagiarism and revoking his certificate.

The appellant argued he was denied procedural fairness when the Committee refused his request for a medical adjournment and proceeded in his absence.

The Divisional Court allowed the appeal, finding that the Committee failed to consider the totality of the medical evidence regarding the appellant's major depressive disorder and unfairly relied on undisclosed internet search results about his employment.

The matter was remitted for a new hearing.

The appellants appealed a Landlord and Tenant Board decision finding that their long-term cabin leases were exempt from the Residential Tenancies Act under the seasonal or temporary accommodation exemption.

The Divisional Court found the Board's decision unreasonable, as the cabins were permanent structures subject to 20-year leases and were used as secondary homes, not temporary vacation accommodations.

The court declared that the Act applies to the leases and that the appellants reside in a land lease community.

The applicant, an OPP officer facing workplace misconduct proceedings, brought an application for judicial review seeking to quash or stay the proceedings.

He argued that the disciplinary process under the Police Services Act violated his rights under sections 7 and 11 of the Charter by failing to provide an independent and unbiased tribunal.

The Divisional Court dismissed the application, finding that section 11 applies only to criminal matters, not employment discipline, and that section 7 is not engaged because there is no constitutional right to practice a profession unfettered by regulatory rules.

The court also declined to order the police association to fund the applicant's legal counsel.

The appellant appealed a decision of the Discipline Committee of the Ontario College of Teachers finding him guilty of professional misconduct for engaging in an inappropriate sexual relationship with a student.

The appellant argued that the Panel disregarded evidence, failed to resolve inconsistencies, and improperly drew an adverse inference from his refusal to answer questions during the investigation.

The Divisional Court dismissed the appeal, holding that the Panel's findings of fact and credibility were entitled to considerable deference and were reasonably supported by the evidence.

The applicant school board sought judicial review of an arbitrator's award which found that certain technology integrators, hired as independent contractors through a third party, were actually employees of the board and 'teachers' within the respondent union's bargaining unit.

The Divisional Court held that the standard of review was reasonableness.

The court found the arbitrator's decision unreasonable because he conflated the workers' desire to become employees with a legal intention to form an employment relationship, and his analysis of whether they were teachers was logically flawed.

The application for judicial review was allowed, the award quashed, and the matter remitted for rehearing.

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.

The appellant tenants appealed a decision of the Landlord and Tenant Board.

The Divisional Court found that the Board member erred in law by concluding he lacked jurisdiction to award a rent abatement for a cockroach infestation, despite the tenants not specifically requesting it in their original materials.

The court also found the member erred by basing the $1,000 fumigation compensation award on a finding unsupported by evidence.

The appeal was allowed and the matter remitted to the Board to determine the appropriate rent abatement and reasonable fumigation compensation.

The Commissioner of the Cornwall Public Inquiry stated a case to the Divisional Court after a witness refused to answer questions at the inquiry.

The witness attended the inquiry but refused to answer questions, claiming he had no faith in the justice system and was a scapegoat.

The Divisional Court found that the witness had no lawful excuse for his refusal and found him guilty of contempt under section 8 of the Public Inquiries Act.

The witness was ordered to re-attend the inquiry to answer questions and to appear before the Court for punishment.

The applicant school board sought judicial review of a decision by the Discipline Committee of the Ontario College of Teachers ordering the production of documents.

The documents, which contained confidential legal advice, had been inadvertently disclosed to the College by a secretary employed by the board.

The Divisional Court granted the application, holding that the secretary lacked authority to waive solicitor-client privilege and that the privilege should be upheld.

The court ordered the return of the documents and the reconstitution of the prosecutorial function with a different prosecutor.

The applicant sought judicial review to set aside grievance awards, arguing the arbitrator erred by acting as both mediator and arbitrator and exhibited a reasonable apprehension of bias during mediation.

The Divisional Court dismissed the application, finding that the Labour Relations Act expressly permits an arbitrator to act as a mediator with the parties' consent, which was given here.

The court also held that the arbitrator's tentative opinion expressed during mediation did not meet the high threshold for establishing bias.

The applicant sought judicial review of an arbitration award and a decision of the Ontario Police Arbitration Commission.

The arbitrator had dismissed a grievance regarding the inclusion of cadet service in the calculation of 'continuous active service' for a seniority premium, finding he lacked jurisdiction to define the term as the parties had not yet done so.

The Commission subsequently refused to appoint a conciliation officer, finding no notice to bargain had been given for the current collective agreement.

The Divisional Court applied the pragmatic and functional approach, determining the standard of review for the arbitration award was patent unreasonableness and for the Commission's decision was reasonableness.

The Court found neither decision met the threshold for intervention and dismissed both applications for judicial review.

The Municipal Property Assessment Corporation appealed a decision of the Assessment Review Board that reclassified a four-story parking garage from the commercial property class to the residential property class.

The parking garage was used exclusively by residents of adjacent condominium towers under long-term license agreements.

The Divisional Court dismissed the appeal, finding that the property was 'used for residential purposes' within the meaning of section 3(1) of Ontario Regulation 282/98, as the ultimate use of the property was residential parking appurtenant to living accommodations, regardless of ownership.

The Assessment Review Board stated a case to the Divisional Court asking whether the Municipal Property Assessment Corporation's use of the income method to value duty free stores at international border crossings violated the Assessment Act by improperly considering the bridge or tunnel structure.

The applicants argued that revenue generated from customers using the bridges or tunnels should not be considered.

The Divisional Court held that the income method relies on the rental income specified in the lease and does not constitute a consideration of the bridge or tunnel structure itself.

The court answered the stated question in the negative.

The applicant, a former police officer, sought judicial review of the Ontario Human Rights Commission's decision not to deal with his discrimination complaint.

The applicant had resigned pursuant to an agreement to withdraw disciplinary charges, but filed a human rights complaint after failing to secure employment with another police force and being denied reinstatement.

The Commission dismissed the complaint as vexatious under s. 34(1)(b) of the Human Rights Code.

The Divisional Court dismissed the application for judicial review, finding that the Commission's decision was not patently unreasonable given the applicant's extensive disciplinary record and the circumstances surrounding his resignation.