Divisional Court

Following a previous endorsement, the court received written submissions on costs.

The plaintiffs/respondents requested substantial indemnity costs, which were unchallenged by the defendants/applicants.

The court fixed costs of the motion payable to the plaintiffs in the amount of $10,173.00 all-inclusive.

The appellant wife appealed a decision dismissing her motion for judgment to enforce minutes of settlement.

The motions judge had found that the parties entered into a binding written settlement but directed a trial to determine whether there was a subsequent oral agreement to vary the terms.

The Divisional Court allowed the appeal, holding that the motions judge erred in failing to enforce the binding written contract, especially since the husband had not brought a cross-motion regarding the alleged oral variation.

A concurring opinion noted that under s. 55(1) of the Family Law Act, any agreement to amend a domestic contract must be in writing, rendering the alleged oral variation unenforceable.

The defendants sought leave to appeal a decision dismissing their Rule 21 motion to strike the plaintiff's amended statement of claim.

The defendants argued that the plaintiff was not entitled to seek declaratory relief under Canadian or American law.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motions judge's decision.

The court noted that issues regarding the applicability of US law to a cross-border declaration could be litigated later in a motion for summary judgment.

The applicant sought judicial review of the Ontario Human Rights Commission's decision to refuse to investigate his human rights complaint.

The Commission had determined that the complaint was more appropriately dealt with under the Crown Employees Collective Bargaining Act and the Labour Relations Act, as the applicant had previously grieved his dismissal and reached a settlement through his union.

The Divisional Court dismissed the application, finding that the Commission's decision was not patently unreasonable because the applicant had access to an arbitration procedure capable of adjudicating human rights issues and had already reached a settlement.

The appellant appealed a decision of the Financial Services Tribunal confirming the Superintendent's consent to merge two pension plans following a corporate amalgamation.

The appellant argued the merger and subsequent use of the actuarial surplus from one plan to fund contribution holidays for the merged plan constituted a revocation of trust.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable and correct.

The court held that the plan documents permitted the merger and that using actuarial surplus to fund contribution holidays while a plan is ongoing does not constitute a revocation of trust.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his race discrimination complaint to a tribunal.

The Commission and Crown respondents brought motions to strike individual commissioners, employees, and Crown entities as parties, and to strike the applicant's affidavit.

The Divisional Court granted the motions, finding that only the Commission exercises a statutory power of decision, the Crown respondents had no role in the proceedings, and the applicant's affidavit contained inadmissible extrinsic evidence and argument not before the Commission.

At a settlement conference regarding a mortgage action, the parties were unable to reach a consensus.

The plaintiff's pending motion for leave to appeal an order setting aside default judgment will direct future proceedings.

The court directed the parties to schedule the leave motion for either November 26 or December 3, 2007.

The landlord appealed an order of the Ontario Rental Housing Tribunal granting the tenant a $10,000 rent abatement for harassment and interference with parking.

The Divisional Court upheld the finding of harassment, noting the landlord's threats to report the tenant to social assistance.

However, the court found no evidence to support the finding of parking interference, as the tenant chose to park in an unassigned spot.

The appeal was allowed in part, and the rent abatement was reduced to $6,500.

The plaintiffs moved to dismiss the defendants' appeal for delay, and the defendants brought a cross-motion to extend the time to perfect their appeal of a Master's order striking their pleadings.

The Master had previously struck the defendants' pleadings due to repeated failures to comply with timetables and court orders.

The Divisional Court found that the defendants failed to demonstrate a bona fide intention to appeal within the prescribed time, that the delay was excusable, or that the appeal had merit.

The court granted the plaintiffs' motion to dismiss the appeal for delay and dismissed the defendants' cross-motion for an extension of time.

Following the dismissal of the applicants' request for judicial review of a decision denying them admission to a master's program, the successful university sought costs on a partial indemnity basis.

The court weighed the factors under Rule 57, noting the complexity of the issues, the unfounded allegations of bias, and the applicants' failure to mitigate.

The court awarded the university partial indemnity costs fixed at $15,000 for fees and $8,665.31 for disbursements, payable equally by the three applicants.

A dissenting judge would have awarded a lower quantum of costs with an extended time to pay.

The plaintiffs in two related medical malpractice actions sought leave to appeal an order removing their counsel of record.

The removal was ordered because plaintiffs' counsel retained an expert witness, a former hospital employee, who had previously been involved in the hospital's defence and possessed confidential, privileged information.

The Divisional Court granted leave to appeal on a single narrow issue: whether the plaintiffs should be afforded an opportunity to propose precautionary steps to mitigate prejudice before the drastic remedy of removing counsel is imposed.

The appellant appealed a Master's decision dismissing his motion to amend pleadings to add three defendants and new causes of action, as well as the Master's costs award.

The Divisional Court found no palpable and overriding error in the Master's conclusion that the proposed claims against the new defendants were untenable in law and that the new causes of action were barred by issue estoppel.

The appeal was dismissed, and costs were awarded to the respondent on a partial indemnity basis.

The appellant, a minority shareholder, appealed the dismissal of his application for an oppression remedy under s. 248 of the Business Corporations Act.

He alleged that the majority shareholder acted oppressively by selling the corporation's sole asset to a family trust without adequate financial disclosure or an open market sale.

The majority of the Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the sale was advantageous to the corporation and that the appellant's expectations were unreasonable.

A dissenting judge would have allowed the appeal, finding the majority shareholder's self-dealing and lack of disclosure constituted oppression.

The appellants sought a new hearing before a differently constituted Human Rights Tribunal, arguing a lack of procedural fairness.

The Divisional Court found conflicting evidence regarding attempts at service, a suspicion of evasion, and a failure to use available translation services.

Concluding that procedural fairness was not achieved on the record, the court ordered a new hearing before a differently constituted Tribunal and made no order as to costs.

The appellant appealed a trial judgment regarding damages and costs arising from a breach of fiduciary duty.

The Divisional Court dismissed the appeal on damages, finding no error in the trial judge's calculation or refusal to award punitive damages.

However, the court allowed the appeal on costs, finding the trial judge erred in denying costs under Rule 76.13(3) because the action included non-monetary claims and faced a substantial counterclaim, making the ordinary procedure appropriate.

The appellant was awarded trial costs on a partial indemnity basis.

The applicant sought judicial review of a college appeal committee's decision upholding his involuntary withdrawal from a nursing program.

He alleged a reasonable apprehension of bias because one panel member, the college registrar, had previously reviewed his file and discussed his case with him.

A majority of the Divisional Court found that the prior undisclosed involvement did create a reasonable apprehension of bias.

However, the Court unanimously dismissed the application, concluding that the applicant had impliedly waived any objection by failing to raise the issue at the hearing despite being represented by counsel.

The applicant withdrew its application for judicial review after its related appeal was dismissed.

The Crown sought costs on a substantial indemnity basis.

The Divisional Court found that the judicial review application was unnecessary and constituted re-litigation of issues already decided by multiple bodies.

The court awarded the Crown $10,000 in fees and $4,000 in disbursements on a substantial indemnity scale.