Divisional Court

The appellant lawyer appealed a Small Claims Court judgment awarding the respondent $10,000.

The respondent, a third party, had paid the appellant $20,000 to personally represent a co-accused at a two-day bail hearing.

The appellant attended the first day but, on the client's instructions, sent his partner to the second day.

The Divisional Court upheld the trial judge's finding that there was a separate oral contract between the respondent and the appellant, which the appellant breached by failing to personally attend the second day.

The appeal was dismissed.

The appellant brought a motion to extend the time to file an appeal of default judgments obtained against him in Small Claims Court for online defamation, and for a stay of execution of garnishment orders.

The court applied the Bratti test and found the appellant maintained a firm intention to appeal, reasonably explained the delay, and demonstrated the appeal had merit without prejudicing the respondents.

The court granted the extension of time and stayed the execution of the garnishment orders, finding irreparable harm would occur if wages continued to be garnished.

The applicant employer sought judicial review of a Grievance Settlement Board arbitration award that ordered rectification of a collective agreement's recognition clause.

The Board found that exclusionary language regarding office and technical staff had been inserted by mistake.

The Divisional Court held that the standard of review for an arbitrator's application of the equitable doctrine of rectification is reasonableness.

The Court upheld the Board's decision to rectify the agreement by removing the mistakenly inserted language.

However, the Court found the Board's subsequent interpretation of the rectified clause and its order for the parties to draft new language to be unreasonable, and set aside that portion of the award.

Following a successful motion for security for costs, the respondent sought costs on a substantial or partial indemnity basis.

The appellant failed to file costs submissions despite an extension of time.

The court considered the lack of complexity and the principle of proportionality, fixing costs in the all-inclusive sum of $2,500.

The tenant appealed a decision of the Landlord and Tenant Board which found that he had abandoned his rental unit.

The Board had concluded that rent was in arrears because the September 2010 rent cheque was paid by a third party rather than the tenant.

The Divisional Court allowed the appeal, holding that the Residential Tenancies Act permits rent to be paid on behalf of a tenant by a third party.

Since the rent was paid, the statutory precondition for abandonment was not met, and the matter was remitted to the Board to determine a remedy.

The moving party, the stepfather of the children involved in a custody dispute, sought leave to appeal an order requiring him to provide his consent for the Office of the Children's Lawyer (OCL) to obtain his Children's Aid Society and police records.

The OCL had been appointed to represent the children under section 89(3.1) of the Courts of Justice Act.

The stepfather argued that as a non-party not seeking custody, he should not be compelled to disclose these records.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the order, as the records were relevant to determining the best interests of the children and ensuring a safe home environment.

The applicant sought judicial review of a Master's refusal to recuse herself from a construction lien reference due to alleged bias.

The Divisional Court considered whether the application was premature, as it challenged an interlocutory order before the underlying proceeding was completed.

Applying the factors from Air Canada v. Lorenz, the court weighed the potential hardship to the applicant against the adverse consequences of delay, waste, and fragmentation.

The court concluded that the adverse consequences of delay outweighed the possible hardship to the applicant, particularly given the statutory framework of the Construction Lien Act designed for speedy resolution.

The application was dismissed for prematurity.

The appellant appealed a garnishment order requiring it to pay the respondent creditor.

The appellant argued it was indebted to an arms-length intermediate party, not the debtor, and that the motions judge erred in considering late affidavits.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motions judge's conclusion that the debtor was in fact an employee of the appellant, nor any error in the exercise of discretion to admit the affidavits.

The appellant tenant appealed a decision of the Landlord and Tenant Board dismissing his request for a review of an eviction order.

The tenant had failed to attend the initial hearing and requested a review, citing a substance abuse problem as the potential reason for his absence.

The Board dismissed the review without holding a hearing.

The Divisional Court allowed the appeal, finding that the Board breached the principles of natural justice by failing to conduct a further inquiry or hearing into the tenant's reasons for non-attendance, particularly given the quasi-constitutional status of the Human Rights Code.

The matter was remitted to the Board for a new review hearing.

The appellant appealed a Master's decision dismissing his motion to set aside a Registrar's Order that had dismissed his personal injury action for delay.

The appellant's former counsel had failed to advance the action, missed deadlines, and ignored the dismissal order for years due to a lack of any system for tracking deadlines.

The Divisional Court found that while the Master made some factual errors regarding prejudice, her overall exercise of discretion was entitled to deference.

The court held that the egregious conduct of the appellant's counsel and the resulting prejudice to the respondent justified refusing to set aside the dismissal order.

The appeal was dismissed.

The plaintiffs brought a motion for leave to appeal an order releasing $75,000 from funds frozen under a Mareva injunction to allow the defendants to pay legal fees.

The plaintiffs argued the order conflicted with a prior decision dismissing the defendants' motion to vary the injunction.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decision as the factual circumstances had changed, and no reason to doubt the correctness of the discretionary order.

The tenant was successful on a motion for a stay pending appeal and sought costs on a substantial or partial indemnity basis.

The landlord argued for a lower amount.

The court found that substantial indemnity costs were not warranted, as there was no deliberate attempt to frustrate proceedings by fraud or deception.

However, the landlord's failure to comply with a previous order and the introduction of unnecessary complexity were considered.

Applying the factors in Rule 57.01 and the principles of fairness and reasonableness, the court fixed costs payable to the tenant at $7,500 all inclusive.

The applicant sought leave to appeal an interlocutory order appointing a specific listing agent for the sale of the parties' three properties.

The court applied the strict test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The motion was dismissed because the applicant failed to point to a conflicting decision and failed to demonstrate that the proposed appeal involved matters of general or public importance beyond the interests of the immediate parties.

The moving party, a commercial tenant, sought leave to appeal a decision dismissing its summary judgment motion.

The underlying motion sought an order requiring the respondent landlord to indemnify the tenant for a personal injury claim arising from a slip and fall on ice in a common area, pursuant to a commercial lease.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's interpretation of the lease's indemnity and insurance provisions.

The defendants sought leave to appeal an order dismissing their motion for summary judgment and awarding the plaintiff $81,955.05 in costs.

The underlying action involved claims of software copyright infringement, which the defendants argued were barred by a quitclaim and the expiry of the limitations period.

The Divisional Court dismissed the motion for leave to appeal, finding no error in the motion judge's conclusion that the limitations and quitclaim issues required a trial to resolve credibility concerns.

The court also declined to grant leave to appeal the costs award, finding the motion judge reasonably inferred the plaintiff's costs based on the disparity between the parties' costs outlines.

The appellant mother appealed a summary judgment order making her child a Crown ward without access.

She sought to introduce fresh evidence, arguing her former counsel provided ineffective representation by failing to request disclosure and an adjournment.

The Divisional Court admitted the fresh evidence but dismissed the appeal, finding the new evidence would not have changed the outcome given the mother's history of substance abuse and non-compliance.

The court also rejected arguments that the motion judge erred in his treatment of sibling access and the denial of access to the mother, finding no errors in the consideration of the child's best interests and need for permanency.