Divisional Court

The Kawartha-Haliburton Children's Aid Society appealed a decision dismissing its motion for summary judgment in a child protection proceeding.

The Society sought an order finding the two infant children in need of protection and making them Crown Wards for the purpose of adoption.

The parents, who both have significant developmental and cognitive issues, opposed the motion.

The Divisional Court found that the motions judge erred in concluding there were genuine issues for trial, as the evidence overwhelmingly demonstrated the parents' inability to care for the children and the lack of a realistic plan of care.

The appeal was allowed, and summary judgment was granted making the children Crown Wards with no access.

Following the release of its decision on the main appeal, the Divisional Court realized it had inadvertently omitted addressing the appellant's supplementary notice of appeal regarding a $10,000 costs order made by the motion judge.

The respondent argued the issue should be left to the Court of Appeal or dismissed due to late service.

The Court rejected these arguments, deciding to hear the costs appeal and setting a timetable for written submissions.

The Corporation of Haldimand County sought leave to appeal a decision of the Assessment Review Board that granted U.S. Steel Canada Inc. vacancy tax rebates for periods during which it had locked out its unionized employees.

The Board had found that the maintenance activities conducted during the lockouts did not constitute 'use' of the property under Ontario Regulation 325/01.

The Divisional Court granted leave to appeal, finding that there was good reason to doubt the correctness of the Board's statutory interpretation of 'use' and 'vacant property' in the context of a voluntary lockout, and that the issue was of sufficient public importance to warrant appellate review.

The appellants, trustees of Wychwood Park, appealed a Small Claims Court decision dismissing their claim for unpaid maintenance levies against the respondents.

The trial judge had ruled that the obligation to pay was a positive covenant that did not run with the land.

The Divisional Court allowed the appeal, finding that the trial judge erred by failing to apply the conditional grant and benefit and burden exceptions to the rule against positive covenants running with the land.

The court held that the respondents, who had actual notice of the Trust Deed and received the benefits of the private park, were bound by the positive obligation to pay the levies.

The applicant builder sought judicial review of Tarion Warranty Corporation's decision finding it unwilling or unable to resolve warranty claims, which allowed Tarion to abridge vendor repair periods.

The Divisional Court dismissed the application without hearing the merits, finding that the issue was moot because the repair periods had long expired and Tarion had already undertaken the repairs.

The court also noted the applicant's unreasonable delay in bringing the application and the availability of an alternative remedy through an existing civil action.

The plaintiffs sought leave to appeal an interlocutory costs order in a securities misrepresentation class action.

The motion judge had ordered the defendant to pay 50% of the costs forthwith and 50% in the cause, while disallowing disbursements that had already been paid by settling defendants.

The Divisional Court dismissed the motion for leave to appeal, finding that the plaintiffs failed to satisfy the tests under Rule 62.02(4)(a) or (b).

The court emphasized the high degree of deference owed to discretionary costs orders, particularly those made by an experienced case management judge in a complex class proceeding.

The applicant sought leave to appeal an interim order requiring him to pay retroactive spousal support and maintain the respondent as an irrevocable beneficiary of his life insurance.

The court dismissed the motion for leave to appeal, finding that the applicant failed to establish a conflicting decision under Rule 62.02(4)(a) or a matter of general importance under Rule 62.02(4)(b).

Costs of $6,000 were awarded to the respondent.

The appellant lawyer appealed an order dismissing his motion to enforce a settlement agreement reached with the respondents.

The Divisional Court found the motions judge's one-sentence endorsement lacked adequate reasons, preventing appellate review.

Exercising its jurisdiction under the Courts of Justice Act, the Divisional Court heard the motion on its merits.

The court found that the parties' counsel had reached a binding settlement agreement via email, agreeing on the essential terms of a $15,000 payment and a full and final release.

The respondents' subsequent refusal to sign the documents was an improper attempt to resile from the agreement.

The appeal was allowed and the settlement enforced.

The moving parties brought a motion to adjourn the hearing of a judicial review application scheduled for February 2016.

The moving parties argued that their counsel was unavailable, they were not consulted on the date, and there was insufficient time to prepare a proper response, including conducting cross-examinations.

The court applied the factors for granting an adjournment and found that proceeding in February would deny the moving parties the opportunity to fairly make out their case.

The motion was granted and the hearing was adjourned to October 2016.

The appellant estate trustee appealed a Master's order dismissing a motion to withdraw admissions regarding property ownership and to consolidate three related proceedings.

The Divisional Court upheld the Master's decision, finding no reasonable explanation for the appellant's attempt to withdraw a clear admission made over a year after a consent order for the sale of the property.

The court also agreed that consolidating the proceedings would contradict the prior consent order and increase complexity.

The appeal was dismissed with costs.

The applicant sought judicial review of the Toronto Police Services Board's decision refusing to purge a 'person of interest' record from his Police Vulnerable Sector Check regarding an unproven 2000 allegation.

On this motion, the applicant sought an order allowing him to proceed anonymously using initials and redacting identifying information from the record.

The court granted the request to use initials and redact his identifying information, finding a serious issue to be tried, irreparable harm if his name was disclosed, and that the balance of convenience favoured protecting his privacy to allow the judicial review to proceed.

The request to redact information about his relatives was denied.

The defendants sought leave to appeal an order refusing to dismiss the plaintiffs' claims for equitable relief, including constructive trust, and permitting the plaintiffs to amend their statement of claim.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decision on a matter of principle and no reason to doubt the correctness of the motion judge's decision that the plaintiffs had pleaded sufficient facts to support their equitable claims.

The plaintiff sought leave to appeal an order requiring him to post security for costs.

The plaintiff, a citizen of India who returned there after his permanent resident card expired, argued the motion judge erred by not accepting an after-the-event legal protection insurance policy as adequate security and by failing to consider the merits of his slip and fall claim.

The Divisional Court dismissed the motion, finding no conflicting decisions on principle and no reason to doubt the correctness of the motion judge's order, as the judge properly applied the test for security for costs and reasonably assessed the evidence.

The appellant employer appealed a Small Claims Court decision awarding the respondent employee four months' pay in lieu of notice after he was terminated during his six-month probationary period.

The trial judge had relied on the employee's subjective understanding of 'probation' to find ambiguity in the employment contract.

The Divisional Court allowed the appeal and dismissed the action, holding that the trial judge erred in law by failing to apply an objective standard to contractual interpretation.

The Court affirmed that probationary employment is inherently tentative, and an employer may dismiss a probationary employee without notice if they are found unsuitable in good faith.

The applicant sought judicial review of an OIPRD decision affirming the Toronto Chief of Police's conclusion that his assault complaint against an officer was unsubstantiated.

The applicant argued the OIPRD breached procedural fairness by refusing to disclose the subject officer's statement before the applicant provided his own.

The Divisional Court dismissed the application, finding no statutory obligation to disclose the officer's statement to the complainant at the investigative stage, and held that the OIPRD's decision was reasonable.

The plaintiff sought leave to appeal an order adjourning a motion for summary judgment and the motions judge's refusal to seize herself of the matter.

All parties consented to the request for leave.

The Divisional Court found the motions judge's decision inconsistent with the Supreme Court of Canada's direction in Hryniak v. Mauldin regarding timely and affordable adjudication.

Finding good reason to doubt the correctness of the decision and that it involved matters of public importance, the court granted leave to appeal.