Divisional Court

The court issued an endorsement regarding the costs of an appeal from the Small Claims Court.

The respondent/plaintiff was awarded costs fixed at $5,000 on a partial indemnity scale.

The court noted that while Rule 49.10 does not apply to appeals, the plaintiff's offer to settle for $6,000 before significant appeal costs were incurred was a very significant factor in determining the quantum of costs to protect the successful plaintiff from a Pyrrhic victory.

The respondents brought a motion to a panel of the Divisional Court to vary an order that refused to strike certain material from the applicant's application record.

The material in question referenced a 'without prejudice' settlement offer made during a tax dispute.

The Divisional Court granted the motion, finding that the motions judge erred in his application of the test for settlement privilege.

The court held that the communications met the three-part test for settlement privilege and that the applicant failed to demonstrate a compelling or overriding interest of justice to justify an exception to the privilege.

The landlord appealed a Landlord and Tenant Board decision granting the tenants a 2.5 per cent rent reduction due to the loss of green space resulting from infill construction.

The Board had found the lands constituted a 'common recreational facility' under the Tenant Protection Act, 1997.

The Divisional Court allowed the appeal, holding that ordinary green space does not meet the statutory definition of a facility, which requires something built or installed to perform a particular function.

The Court also found the Board erred in law by calculating the rent reduction using a novel mathematical approach rather than the mandatory method prescribed by regulation.

The defendants sought leave to appeal a decision dismissing their Rule 21 motion to strike the plaintiffs' claim for negligent investigation against the Special Investigations Unit (SIU).

The plaintiffs, family members of a youth killed in a police shooting, alleged the SIU's inadequate investigation compromised their participation in an inquest and civil action.

The court granted leave to appeal, finding conflicting jurisprudence on whether police or the SIU owe a private law duty of care to victims' families, and noting the issue is of general importance to the development of the law.

The defendants sought leave to appeal a decision dismissing their motion to stay the plaintiff's action for lack of jurisdiction.

The plaintiff, a former employee and member of the union, sued for wrongful expulsion and breach of a settlement agreement after the union terminated his membership benefits.

The defendants argued the plaintiff was required to exhaust internal union procedures before suing.

The Divisional Court denied leave to appeal, finding the motions judge correctly applied the law regarding exceptions to the exhaustion rule and that the proposed appeal raised no issues of general importance.

The applicants sought leave to appeal two Ontario Municipal Board (OMB) decisions refusing an Official Plan and zoning bylaw amendment for a retail development on formerly industrial lands.

The applicants argued the OMB erred in law by applying a 1994 Official Plan policy to lands that had been redesignated as 'employment areas' under the 2002 Official Plan.

The Divisional Court denied leave to appeal, finding no reason to doubt the legal correctness of the OMB's policy-based decision, which reasonably interpreted the Official Plan and assessed the impact of 'retail contagion' on surrounding lands.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision terminating his loss of earnings benefits.

The Tribunal had concluded that the applicant's repetitive strain injury resolved on the date of a normal EMG study, despite ongoing symptoms documented by treating physicians.

The Divisional Court found the Tribunal's decision unreasonable, as it could not be reconciled with the undisputed medical evidence confirming ongoing impairment.

The application was allowed and the matter remitted to a differently constituted panel.

The moving party municipality sought leave to appeal a motion judge's dismissal of its motions for summary judgment and determination of a question of law.

The underlying action involved claims of misfeasance and negligence related to the closing of zoning applications.

The Divisional Court granted leave to appeal on the issue of whether the municipality was immune from suit under s. 20(1)(a) of the Oak Ridges Moraine Conservation Act, finding there was good reason to doubt the correctness of the motion judge's decision and that the issue was of general importance.

Leave to appeal on the limitation period issue was denied.

The appellant appealed a Licence Appeal Tribunal decision directing the Registrar to revoke his motor vehicle dealer registration.

The Tribunal found that the appellant's past conduct, including numerous undisclosed Highway Traffic Act convictions related to operating an inspection station, afforded reasonable grounds to believe he would not carry on business with honesty and integrity.

The Divisional Court dismissed the appeal, finding no denial of natural justice and concluding that the Tribunal's decision was reasonable and supported by ample evidence.

The plaintiffs commenced an action for damages arising from destroyed cargo within the two-year limitation period under the Warsaw Convention, but failed to serve the statement of claim on the defendant airline within the time required by the Rules of Civil Procedure.

The defendant appealed a master's order extending the time for service, arguing that the action was not 'brought' within the meaning of Article 29 of the Convention because it was not served within two years.

The Divisional Court dismissed the appeal, holding that 'brought' means initiating the legal proceeding, not initiating and serving it, and that Ontario procedural rules govern the extension of time for service.

Following the dismissal of the appellants' appeal, the successful respondents sought costs of $31,804.58.

The appellants submitted that costs should be fixed at $20,000.

The Divisional Court agreed with the appellants, fixing costs at $20,000 inclusive, noting that this amount was fair, reasonable, and proportionate to the amount at issue.

The appellant landlord appealed a Small Claims Court decision dismissing its claim for unauthorized parking fees, bailiff charges, and legal fees against the respondent tenants.

The trial judge found that the vehicles were not in the possession or control of the tenants and that the landlord acted precipitously in calling a bailiff.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the facts.

The appellant appealed an order of the Master refusing to re-open a final judgment of foreclosure granted three years earlier.

The foreclosure judgment had been granted on consent, and the mortgagee had elected not to request a reference.

The Divisional Court dismissed the appeal, finding no error in the Master's consideration of the consent nature of the judgment, the delay, and the prejudice to the respondents.

The appellant successfully defended a claim for trespass and damage to property at trial, but the trial judge dismissed the claim without costs and without giving the appellant an opportunity to make costs submissions.

On appeal, the Divisional Court held that while a trial judge has discretion to refuse costs, procedural fairness requires hearing submissions first.

The court considered the matter afresh and awarded the appellant costs of the trial on a partial indemnity scale, as well as $7,000 for the appeal.

The 86-year-old appellant appealed a Master's order refusing to set aside a noting in default in an action for specific performance of a real estate transaction.

The appellant had entered into an unsolicited agreement to sell her home but immediately retained counsel to contest its validity.

Due to her counsel's inadvertence, a statement of defence was not filed.

The respondent's counsel noted her in default without warning, waiting six months to notify her counsel.

The Divisional Court allowed the appeal, finding the Master made palpable and overriding errors by ignoring the overriding principle of resolving disputes on their merits and by failing to consider the sharp practice of the respondent's counsel.

The appellant appealed an order of a motions judge that reversed a master's interlocutory order permitting the appellant to file a supplementary affidavit after cross-examinations were completed.

The Divisional Court allowed the appeal, finding that the motions judge erred in law by failing to apply the deferential standard of palpable and overriding error to the master's discretionary decision.

The court reinstated the master's order, holding that the supplementary affidavit was highly relevant, adequately explained, and caused no non-compensable prejudice.