ODC 2007

The appellants appealed a decision of the class proceedings judge who struck out their Amended Amended Statement of Claim.

The judge had put the appellants to an election to either abandon the proposed amendment or proceed with it after submissions on costs thrown away, pursuant to section 12 of the Class Proceedings Act.

The Divisional Court dismissed the appeal, finding that the judge made no error in her analysis and application of section 12 to ensure the fair and expeditious determination of the proceeding.

The defendants sought leave to appeal an interlocutory order that dismissed their motions to strike summonses to witnesses and a notice of examination.

The underlying motion was to strike the plaintiffs' statement of claim.

The defendants argued the proposed examinations were too broad and amounted to a fishing expedition.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance, as the scope of examination was properly tied to the broad issues raised in the motion to strike.

The plaintiff sought leave to appeal an order setting aside five ex parte injunctions he had obtained against the defendant regarding the proceeds of a real estate sale.

The motions judge had set aside the orders after finding the plaintiff failed to make full and frank disclosure of material facts, including a $2 million mortgage and other joint ventures, and had admitted to dishonesty in other proceedings.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision or her exercise of discretion in assessing the plaintiff's lack of candour.

The appellants (tenants) appealed a Small Claims Court judgment ordering them to pay unpaid rent and utility costs to the respondent (landlord).

The appellants argued that an oral agreement existed wherein utilities were included in the rent, and that the trial judge erred in applying the parol evidence rule.

The Divisional Court dismissed the appeal, finding that the written lease clearly and unambiguously required the tenants to pay for propane and electrical charges, and that the trial judge made no palpable and overriding error.

The defendants abandoned their motion for security for costs of the appeal.

The plaintiffs sought costs of the abandoned motion.

The court found that the plaintiffs did not conceal assets and were entitled to costs.

The court reduced the quantum of costs claimed, noting that the self-represented plaintiff was not entitled to claim fees at a lawyer's rate despite his litigation experience.

Costs were fixed at $8,000 for fees, plus disbursements and GST.

The appellant brought a motion to stay the execution of his disbarment by the Law Society of Upper Canada pending his appeal to the Divisional Court.

The appellant argued that he was denied procedural fairness when the Law Society refused an adjournment and proceeded with the hearing in the absence of his newly retained counsel.

The court found that there was a serious issue to be tried regarding procedural fairness, that the appellant would suffer irreparable harm if disbarred before the appeal, and that the balance of convenience favoured a stay.

The motion for a stay was granted.

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 appellants appealed a motions judge's refusal to set aside a default judgment.

The motions judge found that the appellants failed to move as soon as possible and gave no reasonable explanation for the delay.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's exercise of discretion.

The court also declined to interfere with the judgment based on an accounting argument over a $5,000 sum and noted it had no jurisdiction over post-judgment arguments regarding amounts owing.

The tenant appealed an eviction order, arguing the Tribunal erred by failing to consider his drug addiction as a disability requiring accommodation under the Ontario Human Rights Code.

The Divisional Court found that while the addiction was a disability, the tenant's operation of a crack house substantially interfered with other tenants' rights.

The court held that accommodating such behaviour would cause undue hardship to the landlord and other tenants, particularly since the tenant denied dealing drugs, making accommodation impossible.

The appeal was dismissed and the eviction order upheld.

The appellant brought a motion for leave to introduce fresh evidence and a motion to set aside an order of a single judge quashing her appeal.

The underlying appeal was from a Law Society Hearing Panel's decision to recuse itself and the Appeal Panel's decision to quash her appeal of that recusal.

The Divisional Court dismissed the motion for fresh evidence as the proposed evidence was irrelevant to whether the appealed decision was interlocutory.

The Court also dismissed the motion to set aside the order, finding no error in the conclusion that the decision appealed from was interlocutory and therefore not subject to appeal under the Law Society Act.

The appellant brought a motion to consolidate the hearing of a motion to set aside a 2007 order with a motion to set aside a 2003 order.

The Divisional Court dismissed the motion to consolidate, noting the appellant had ample time to bring the 2003 motion on for hearing and failed to do so, and that the 2007 order was a discrete matter.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision regarding the discharge of an employee.

The Board had found that the employee's sale of used parts and retention of the proceeds was based on a misunderstanding of workplace practice, rather than willful misconduct.

The Divisional Court dismissed the application, holding that the Board's conclusions were supported by the evidence before it.

Following the dismissal of the appellant's appeal, the successful respondent sought partial indemnity costs of $13,395 for fees and $559.58 for disbursements.

The appellant objected to the hourly rates claimed for senior counsel and a student.

The Divisional Court reduced the hourly rates to $275 for senior counsel and $60 for the student, allowed the disbursements, and fixed total costs at $9,500 inclusive of disbursements plus GST.

The applicants sought judicial review of a racing commission decision dismissing their appeal of a stewards' ruling.

They argued the commission breached natural justice by failing to adequately address evidence that another jockey's whip caught in their horse's tail, causing interference.

The Divisional Court dismissed the application, finding the commission's reasons were adequate, the evidence was considered, and the factual findings were not patently unreasonable.

The applicant union sought judicial review of an Ontario Labour Relations Board decision upholding the assignment of certain I-beam installation work to a rival union.

The applicant argued the Board breached procedural fairness by failing to consider twenty drawings submitted with its reply.

The Divisional Court dismissed the application, finding the Board had considered the drawings and its decision was not patently unreasonable.

The applicant physician brought an application for judicial review regarding a referral to the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The applicant argued that the Associate Registrar lacked the statutory authority to appoint investigators and lacked reasonable and probable grounds to do so.

The Divisional Court dismissed the application as premature, holding that the threshold jurisdictional issues could and should be raised before the Discipline Committee prior to any hearing on the merits.

Costs of $5,000 were awarded to the respondent College.

The appellants appealed a Small Claims Court decision dismissing their action for the return of a $10,000 deposit on a pre-construction condominium.

The vendor had unilaterally relocated the furnace to the front hall closet, rendering it virtually useless.

The Divisional Court found the trial judge misapprehended the evidence by focusing on the wrong closet.

Drawing its own inferences of fact, the court held that the relocation of the furnace constituted a fundamental change to the agreement of purchase and sale, entitling the appellants to rescind the contract and recover their deposit.

The Crown applied for certiorari to quash two decisions of a justice of the peace that refused to extend the detention of materials seized during a tax evasion investigation and ordered their return.

The justice of the peace had concluded that the nine and a half months the materials had been detained was a reasonable time for the authorities to review them.

The Superior Court granted the application and quashed the decisions, finding that the justice of the peace erred in law and exceeded his jurisdiction by conducting a retrospective review of the investigation's efficiency.

The court held that under s. 490(2) of the Criminal Code, the focus must be prospective, assessing whether the nature of the investigation justifies further detention, rather than second-guessing the pace of the investigation to date.

The City of Ottawa applied for judicial review of an arbitration award which held that the City was obligated under the collective agreement to pay the costs associated with the Ontario Health Premium on behalf of its employees.

The Divisional Court applied the patent unreasonableness standard of review.

The court found that the arbitration board's conclusion was logical and founded in the language of the collective agreement, and therefore dismissed the application.

The appellants, tenants in a land-lease community, appealed a Rental Housing Tribunal decision terminating their tenancies.

The respondent landlords sought to evict the tenants to fulfill severance conditions and build retirement homes on the property.

The Divisional Court upheld the Tribunal's findings that the landlords required the lands in good faith within a reasonable time, were not in serious breach of their maintenance obligations, and that it was not unfair to grant the eviction.

The appeal was dismissed with costs.