ONSCDC 2011

The applicant employer sought judicial review to quash an arbitration award concerning a retiring employee's entitlement to vacation pay.

The employee retired in April after taking five weeks of his six-week annual vacation entitlement.

The employer argued that under the collective agreement, the vacation entitlement should be prorated to the time worked in the year of retirement, and sought recovery of the extra vacation pay.

The arbitrator found the collective agreement language clear and unambiguous, holding that proration only applied to unused earned vacation, and the employee owed no repayment.

The Divisional Court held that the arbitrator's interpretation was reasonable and dismissed the application for judicial review.

The defendants in an oppression action brought a motion to vary an order of a Superior Court judge who had dismissed their motion for leave to appeal an interlocutory order.

The moving party relied on s. 21(5) of the Courts of Justice Act.

The Divisional Court quashed the motion for want of jurisdiction, holding that s. 21(5) only permits a panel to vary a decision of a judge who has heard a motion in the Divisional Court, not a Superior Court judge acting in a gatekeeper capacity for leave to appeal.

The appellant appealed a Social Benefits Tribunal decision denying him supplementary benefits for medical transportation and surgical supplies under the Ontario Disability Support Program Act.

The Divisional Court allowed the appeal in part, finding the Tribunal erred in law by failing to address the appellant's uncontradicted evidence that he had submitted the required form for medical transportation costs.

The matter was referred back to the Director to determine the amount of transportation benefits owed.

The appeal regarding surgical supplies was dismissed as no error of law was shown.

The appellants appealed a decision declaring the 2010 municipal elections for Ward 9 City Councillor and Ward 4 TDSB Trustee invalid due to election officials failing to sign Voters List Change Request Forms.

The Divisional Court allowed the appeal, finding that while the failure to sign the forms was an irregularity, it did not affect the result of the elections because the vast majority of the voters had signed declarations confirming their eligibility to vote.

The Court held that the elections were conducted in accordance with the principles of the Municipal Elections Act and set aside the order for by-elections.

The appellant appealed a Small Claims Court decision that found a default clause in its standard form motor vehicle lease to be an unenforceable penalty clause.

The trial judge had awarded reduced damages to the appellant.

On appeal, the Divisional Court held that the trial judge failed to account for the appellant's expenses in retailing a motor vehicle.

The court found the default clause was a genuine pre-estimate of damages, not a penalty, and allowed the appeal, awarding the appellant the maximum Small Claims Court jurisdiction of $10,000 plus costs.

The appellant, an unauthorized sub-sub-contracted carrier, sought payment from the respondent consignee for transporting goods, relying on section 2 of the Bills of Lading Act.

The respondent had already paid its contracted transportation arranger, unaware of the unauthorized subcontracting chain.

The Divisional Court dismissed the appeal, holding that the appellant disentitled itself from relying on the Act by participating in the unauthorized subcontracting and concealing it from the respondent.

The landlord appealed a decision denying her application to terminate a residential tenancy for her own use and the use of her children.

The initial application was denied because possession was sought for her children, not herself.

A subsequent application was denied on the basis of res judicata.

The Divisional Court allowed the appeal, finding res judicata inapplicable or subject to discretion, and incorporated the parties' Minutes of Settlement into the court order.

The appellant husband appealed a trial judgment regarding the interpretation of a separation agreement and an award of retroactive spousal support.

The trial judge had found the agreement valid, interpreted it to include the equal division of the husband's RRSPs, and awarded $30,000 in retroactive spousal support.

The Divisional Court allowed the appeal, finding that while the agreement was binding as an interim measure, it did not oust the equalization provisions of the Family Law Act and did not include the RRSPs.

The court also set aside the retroactive support award because the trial judge failed to address the necessary legal considerations.

The matter was remitted to trial.

The applicant union brought an application for judicial review of an arbitration award that denied a grievance claiming a retired employee was entitled to three additional weeks of vacation pay.

The grievance turned on the interpretation of a Clarity Note in the collective agreement.

The Divisional Court dismissed the application, finding that the arbitrator's interpretation of the Clarity Note and the collective agreement was reasonable and met the Dunsmuir requirements of transparency, intelligibility, and justification.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario, which suspended its liquor licence for 14 days after finding it allowed overcrowding and permitted a patron to smoke marijuana on the licensed patio.

The Divisional Court dismissed the appeal, holding that an appeal lies only on a question of law, and the appellant's grounds were essentially challenges to the Board's findings of fact and credibility determinations.

The City of Vaughan sought judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of an employee's entry and exit points on the 407 ETR highway.

The City had reimbursed the employee for the toll charges but redacted the location and timing data from the disclosed invoices, arguing it was personal information.

The Commissioner found that while it was personal information, it fell under the exception for information disclosing an employee 'benefit' under s. 14(4)(a) of the Municipal Freedom of Information and Protection of Privacy Act.

The Divisional Court applied a reasonableness standard of review and upheld the Commissioner's decision, finding that the entry and exit points defined the quantum of the benefit and were subject to disclosure to ensure government accountability.

The appellant municipality appealed a decision of the Ontario Municipal Board that granted nine minor variances for a mixed-use development.

The appellant argued the Board failed to conduct an independent analysis of the four-part test under s. 45(1) of the Planning Act, relied on irrelevant factors, and reversed the onus of proof.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable, transparent, and did not reverse the legal onus or rely on irrelevant factors.

The plaintiffs sought leave to appeal a $40,000 substantial indemnity costs award made against them after a motion to strike was resolved on consent.

The motions judge had awarded costs to the defendants for responding to a claim by a voluntarily dissolved corporation.

The Divisional Court granted leave to appeal, finding strong grounds to question whether the defendants reasonably incurred such high costs given their position that the claim was certain to fail, and whether costs for an adjourned motion should have been awarded before its final disposition.

The respondent employer brought a motion to dismiss the applicant's application for judicial review of a Human Rights Tribunal of Ontario decision on the basis of delay.

The applicant had delayed 26 months in filing his application and a further three months in perfecting it, without providing a cogent explanation.

The court found that the delay caused actual prejudice to the respondents, as a key witness had since been dismissed and another respondent had already undergone a full hearing on related issues.

The motion was granted and the application for judicial review was dismissed.

The defendants sought leave to appeal a decision that vacated an order for security for costs against two plaintiffs and reduced the quantum against a third in a solicitor's negligence action.

The court refused leave to appeal regarding the test of impecuniosity, as the issue of the plaintiffs' ability to borrow funds was not raised below.

However, the court granted leave to appeal regarding the quantification of security for costs, the reliance on inadequate evidence of financial needs, and the application of the victim's Bill of Rights, but only in respect of the third plaintiff.

The garnishee appealed a motion judge's order requiring it to pay 100 percent of the compensation it paid to the debtor to the creditor, until the creditor's judgment was satisfied.

The Divisional Court allowed the appeal, finding that under s. 72 of the Wages Act, 80 percent of a person's wages are exempt from garnishment.

The order was varied to require the garnishee to pay 20 percent of the debtor's compensation to the creditor, while 100 percent of any non-compensation debts or shareholder distributions remained subject to garnishment.

The appellant appealed the dismissal of his motion to certify a class proceeding against the City of Toronto.

The proposed class action alleged the City was negligent in failing to send statutory notices of rent reduction to tenants of rooming houses after municipal property taxes were reduced.

The motions judge had found it plain and obvious that the City owed no duty of care to the tenants.

The Divisional Court allowed the appeal, finding that based on the statutory scheme and the specific relationship created by the Parkdale Pilot Project, it was not plain and obvious that the City owed no duty of care.

The proceeding was certified as a class action.

The Municipal Property Assessment Corporation (MPAC) brought a motion to stay a 16-day hearing before the Assessment Review Board pending an application for judicial review.

MPAC argued the Board improperly intervened by allowing the complainants to re-open their case.

The Divisional Court dismissed the motion, finding that MPAC failed to raise a serious argument that exceptional circumstances justified interlocutory judicial review before the administrative process concluded.

The court also found no irreparable harm and that the balance of convenience favoured proceeding with the scheduled hearing.

The appellant appealed a Small Claims Court decision dismissing his claim for damages to his fence.

The appellant argued that the trial judge erred in his application of the law of nuisance by requiring proof of causation.

The Divisional Court dismissed the appeal, finding that the trial judge correctly identified causation as a pre-requisite to a finding of nuisance and made no error of law in dismissing the claim after finding the cause of the damage was completely unknown.

The defendant in a wrongful dismissal action sought leave to appeal a decision dismissing its appeal from a Master's order.

The Master had refused to strike allegations in the Statement of Claim that the defendant had a practice or policy of terminating employees for just cause when none existed, to avoid providing notice or pay in lieu.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting lines of cases that remained good law following the Supreme Court of Canada's decision in Whiten v. Pilot Insurance Co., and no reason to doubt the correctness of the lower court's decision.