ONSCDC 2010

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.

The moving party, Mr. Elgner, sought leave to appeal an interim spousal support order made under the Divorce Act.

He argued that the Divorce Act provided an appeal as of right, rendering the provincial requirement for leave inoperative under the doctrine of paramountcy.

The Divisional Court rejected this argument, finding that s. 21(6) of the Divorce Act incorporates ordinary provincial appellate procedures, meaning leave is required.

Applying the test for leave under Rule 62.02(4), the court found no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, which appropriately considered the high income of the payor and the needs of the recipient.

The motion for leave to appeal was dismissed.

Sierra Club Canada brought a motion for an interlocutory injunction to halt demolition and construction activities for the Windsor-Essex Parkway, arguing the work would irreparably harm endangered species despite a permit issued under the Endangered Species Act.

The court dismissed the motion, finding no evidence of irreparable harm and that the balance of convenience favoured continuing the project with the permit's mitigation measures.

The respondent's cross-motion to dismiss the judicial review application for delay was adjourned to the panel hearing the application.

The appellant landlord appealed a decision of the Landlord and Tenant Board that found it lacked jurisdiction to proceed with an eviction application.

Prior to the appeal hearing, the landlord obtained an order requiring the tenants to pay rent, failing which a Writ of Possession would issue.

The tenants failed to pay and were evicted.

The Landlord and Tenant Board, as intervenor, brought a preliminary motion to dismiss the appeal as moot.

The Divisional Court agreed, finding that the execution of the Writ of Possession effectively terminated the tenancy, the dispute had disappeared, and there were no circumstances warranting the exercise of discretion to hear the moot appeal.

The moving party sought an interim injunction to halt the demolition of houses pending the hearing of an interlocutory injunction.

The court dismissed the motion, finding that the moving party failed to establish irreparable harm, noting that pre-screening of the properties had found no snakes.

The court also found that the balance of convenience favoured the responding party, as the demolition plans had been public for some time and the moving party could have sought relief earlier.

The applicant sought costs for an original motion before Justice Maranger and for a judicial review application before the Divisional Court.

The Law Society opposed the request, noting the applicant had mixed success as she did not obtain the permanent stay she sought.

The court agreed the applicant's success was mixed, as it merely maintained the interim stay pending an appeal before the Law Society Appeal Panel.

The court awarded the applicant $5,000 in costs for the motion before Justice Maranger, but declined to award costs for the judicial review.

The appellants appealed a Small Claims Court decision dismissing their claim against the respondent bank for $600.

The bank had exercised a right of off-set to recover funds for an outstanding credit card debt subject to a 1997 default judgment.

The Divisional Court upheld the trial judge's decision, agreeing with the adverse inference drawn from the failure of the key appellant to testify.

The court also upheld the costs award against the appellants' agent personally due to his unreasonable conduct during the trial.

The appellant appealed a Small Claims Court decision that dismissed its claim for unpaid invoices.

The trial judge found the appellant was entitled to the claimed amount but allowed an equivalent set-off due to the appellant's negligent misrepresentation regarding the seasonal sag of hydro wires, which caused the respondents to incur significant extra costs when moving a house.

The Divisional Court dismissed the appeal, holding that the informal pleading standards in Small Claims Court permitted the trial judge to apply set-off based on the facts presented, and that the finding of negligent misrepresentation was supported by the evidence.

The applicants sought an injunction to prevent the closure of the only public secondary school in Niagara-on-the-Lake, pending an application for judicial review of the school board's decision.

The court dismissed the motion primarily due to the applicants' two-year delay in bringing the proceeding.

Applying the RJR MacDonald test, the court found no strong prima facie case, as the board's administrative decision was procedurally fair and reasonable.

Furthermore, the applicants failed to establish irreparable harm, and the balance of convenience heavily favoured the board, which had already completed complex logistical arrangements to relocate students and staff.

The appellant, a bank employee, sought to certify a class action against the respondent bank for systemic unpaid overtime.

The motion judge dismissed the certification motion, finding no common issues that would advance the litigation and that the bank's overtime policy requiring pre-approval was lawful under the Canada Labour Code.

The motion judge also awarded $525,000 in costs to the respondent.

The Divisional Court dismissed the appeal, upholding the motion judge's findings that the claims required individual assessments and that the costs award was reasonable.

The applicant sought an extension of time and leave to appeal two case management orders made in a guardianship application that had been ongoing for 2.5 years.

The applicant argued the case management judge lacked inherent jurisdiction to case manage an estate matter.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, finding that the court has inherent jurisdiction to control its own process and that the tests for leave to appeal under Rule 62.02(4) were not met.

The corporation sought an order approving a proposed arrangement to collapse its dual-class share structure by purchasing for cancellation all outstanding Class B shares for consideration comprising 9 million newly issued Class A shares and US$300 million in cash.

The application judge approved the arrangement.

The opposing shareholders appealed, arguing the application judge erred in finding the arrangement fair and reasonable.

The Divisional Court dismissed the appeal, holding that the application judge correctly applied the BCE test.

The corporation was not required to demonstrate with certainty that the benefits of the arrangement would offset the costs, but only a reasonable prospect of clearly identified benefits.

The affirmative vote of the Class A shareholders was important evidence supporting the fairness of the arrangement.

The defendant insurer sought leave to appeal a motion judge's refusal to strike the plaintiff's jury notice in an action for life insurance proceeds.

The insurer argued the claim was for declaratory relief, which must be tried without a jury under s. 108(2) of the Courts of Justice Act.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the motion judge's conclusion that the pith and substance of the claim was a factual dispute regarding the deceased's insurability, rather than a claim for declaratory relief.

Following the dismissal of three proceedings brought by the self-represented respondent, the applicant municipality sought costs of $6,472.

The respondent argued costs should be waived due to his limited resources and the public interest nature of the issues.

The court rejected the respondent's arguments, noting he had been warned about the merits of the proceedings but proceeded anyway.

The court reduced the applicant's claimed costs by 20% due to issues with their documentation, fixing costs at $5,177.60.

The appellant's appeal under the Municipal Conflict of Interest Act was previously quashed.

The court received written submissions on costs.

The respondent sought substantial indemnity costs of $35,779.80 or partial indemnity costs of $20,534.60.

The court found no basis for substantial indemnity costs, as the appellant's dilatory conduct did not rise to the level of reprehensible conduct.

However, the respondent was entitled to costs for steps taken to move the appeal forward, including motions to expedite and dismiss for delay.

The court fixed costs at $10,000 inclusive of disbursements and HST.

The appellants filed a motion for leave to appeal an eviction order from the Landlord and Tenant Board.

The court noted that under section 210 of the Residential Tenancies Act, tenants have an appeal as of right to the Divisional Court, and the court has no jurisdiction to grant or refuse leave.

The court construed the notice of motion as a notice of appeal and directed the registrar to treat it as an appeal as of right.

The moving party, a solicitor acting for the applicant in a family law proceeding, brought a motion on her own behalf for leave to appeal an interlocutory order citing her for contempt of court.

The Divisional Court dismissed the motion, noting that the solicitor failed to provide a transcript of the proceedings or the reasons for her subsequent contempt conviction.

The court held that the record was entirely inadequate to assess the correctness of the motion judge's decision or to determine whether the alleged contempt was civil or criminal, thereby failing to establish the court's jurisdiction.

The moving party sought leave to appeal an interlocutory order that adjourned a family law trial to allow the Office of the Children's Lawyer time to investigate and participate.

The moving party argued the adjournment gave the responding party a tactical advantage and that the motion judge misapprehended the evidence.

The Divisional Court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's decision and noting the proposed appeal lacked public importance.

The appellant, an investment advisor, appealed a decision of the Ontario Securities Commission that upheld a disciplinary ruling by the Investment Industry Regulatory Organization of Canada (IIROC).

IIROC had found the appellant engaged in conduct detrimental to the public interest by maintaining undisclosed financial interests in the accounts of two relatives, resulting in a permanent ban, a $350,000 fine, and $80,000 in costs.

The Divisional Court dismissed the appeal, finding the Commission's decision reasonable, the reasons provided by IIROC adequate, and that the Commission properly afforded deference to the self-regulatory organization.

The applicant sought judicial review of an Ontario Labour Relations Board decision upholding a Ministry of Labour inspector's orders.

The inspector found the applicant in violation of O.Reg. 851/90, s.48 for stacking industrial drums without parallel planks between rows.

The applicant argued its method of staggering drums was a permitted variation under s.2 of the Regulation.

The Divisional Court held that the standard of review was reasonableness and found the Board was correct in concluding that the applicant's method was not a variation but a failure to use any physical separation as required.

The application for judicial review was dismissed.