ODC 2019

The appellant bank appealed a Small Claims Court judgment that awarded postjudgment interest at the Courts of Justice Act rate rather than the contractual rate of 19.8%.

The Divisional Court found that the Deputy Judge erred in law by failing to provide reasons for departing from the contractual rate and by failing to follow binding authority which requires the contractual rate to be applied absent exceptional circumstances.

The appeal was allowed and postjudgment interest was set at 19.8% per annum.

The landlord brought a motion to quash the tenants' appeal of a Landlord and Tenant Board (LTB) eviction order, or alternatively to lift the automatic stay of eviction.

The tenants had withheld rent due to the landlord's failure to repair a persistent water leak, and the LTB had ordered eviction based on the tenants allegedly denying the landlord entry.

The Divisional Court dismissed the motion to quash, finding that the tenants' appeal raised valid questions of law, including whether the LTB denied them a fair hearing by refusing to admit evidence regarding the landlord's failure to repair and whether the LTB properly considered all circumstances under section 83 of the Residential Tenancies Act.

The court ordered the stay of eviction to continue, provided the tenants pay rent arrears by a specified date.

The plaintiff appealed a Master's decision refusing her motion to amend her Statement of Claim to add a $100,000 claim for defamation against her former employer.

The proposed amendment alleged that the employer's report to the Ontario Securities Commission was defamatory, but failed to specify the defamatory words.

The Divisional Court dismissed the appeal, finding no error of law in the Master's conclusion that the pleading did not disclose a tenable cause of action because the specific defamatory words were not identified.

Following the dismissal of the moving party's motion for leave to appeal, the responding party sought costs for a previous motion before Justice Doyle and for an abandoned motion for leave to appeal Justice Pelletier's decision.

The Divisional Court declined to award costs for the motion before Justice Doyle, finding it lacked authority and directing the request back to her.

The Court also ordered no costs for the abandoned motion, as no materials had been filed, in accordance with Rule 61.14(4) of the Rules of Civil Procedure.

The applicant school board sought judicial review of two arbitration decisions regarding the calculation of payouts for unused sick days upon retirement.

The arbitrator found that the collective agreement required rounding up years of service for teachers with more than X.500 years, and prohibited rounding down for those with less.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the collective agreement and rejection of the board's past practice and estoppel arguments to be reasonable.

The tenant, who suffers from mental illness, appealed a decision of the Landlord and Tenant Board.

The Divisional Court found that the Board failed to accommodate the tenant's disability by refusing to grant a second adjournment, which prevented her from fully and fairly participating in the process.

The appeal was allowed, the Board's decision was set aside, and the matter was remitted for a fresh hearing.

The tenant's appeal from an order of the Landlord and Tenant Board terminating her tenancy was previously dismissed.

The court received written submissions on costs from the respondent landlord, but none from the appellant tenant.

The court fixed costs payable to the respondent in the amount of $4,000 all-inclusive.

The appellants appealed a trial judgment enforcing a construction lien against them.

The trial judge had applied the 'special circumstances' doctrine to extend the limitation period to add a tenant corporation as a defendant, and pierced the corporate veil to find the landlord corporation was an 'owner' under the Construction Lien Act due to common ownership.

The Divisional Court allowed the appeal, holding that the 'special circumstances' doctrine does not apply to the mandatory statutory deadlines in the Construction Lien Act, and that the corporate veil cannot be pierced absent conduct akin to fraud.

The appellant real estate agent appealed a Small Claims Court decision ordering him to pay $4,920 for breaching an agreement to rebate 1% of his commission to the respondent purchaser.

The appellant argued he signed the agreement under duress and undue influence.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility findings, which supported the conclusion that the appellant had choices and was not under duress.

The appellant, a real estate broker, appealed a Small Claims Court decision ordering him to pay $10,000 to his former brokerage pursuant to a training repayment clause in his contract.

He argued the clause was an unenforceable penalty and that he received no training.

The Divisional Court dismissed the appeal, finding the Deputy Judge made no palpable and overriding error in concluding training was provided and linked to a $2,000 monthly stipend.

The court held the $10,000 repayment was a genuine pre-estimate of damages, not an extravagant or unconscionable penalty, given the difficulty of quantifying training costs and the unusual monthly stipend provided.

The applicant sought judicial review of a decision by a FSCO Director's Delegate that rescinded an Arbitrator's decisions awarding statutory accident benefits, a special award, and expenses.

The Divisional Court found that the Delegate's decisions regarding the special award, the benefits, and the Arbitrator's clarification decision were unreasonable, as the Arbitrator had jurisdiction and provided adequate reasons.

However, the Delegate reasonably found that the Arbitrator erred by awarding legal fees in excess of the maximum limits set out in the Dispute Resolution Practice Code.

The application for judicial review was granted in part, restoring the Arbitrator's decisions except for the legal costs, which were remitted for recalculation.

The Registrar appealed a Licence Appeals Tribunal decision setting aside a proposal to revoke the respondent's crematorium operator licence.

The respondent used a low-temperature alkaline hydrolysis process, which the Registrar argued posed a public health risk due to potential failure to destroy prions.

The Divisional Court dismissed the appeal, finding the Tribunal reasonably concluded the Registrar failed to establish reasonable grounds to believe the process created a risk to public health and safety.

The Court also found the Tribunal did not err in its application of the precautionary principle or in declining to impose further licence conditions.

The applicant sought judicial review of decisions by the Ministry of Transportation (MTO) and the City of Toronto revoking permits for a sign on its property adjacent to Highway 401.

The MTO revoked its permit after determining the sign was a third-party billboard, which is prohibited within 400 metres of a controlled-access highway, rather than a permitted first-party location sign.

Toronto subsequently revoked its municipal permit because a valid MTO permit is a prerequisite.

The Divisional Court dismissed the application, finding the MTO's characterization of the sign as a third-party advertisement was reasonable, as the advertised law firm did not genuinely conduct business at the premises.

The court also found the applicant was not denied procedural fairness.

The tenant appealed a Landlord and Tenant Board review order that upheld his eviction for the landlord's own use.

The tenant argued the LTB failed to properly consider relief from eviction under s. 83 of the Residential Tenancies Act, breached procedural fairness by having the same member review her own decision, and exhibited bias.

The Divisional Court dismissed the appeal, finding no errors of law, no breach of procedural fairness, and no reasonable apprehension of bias on the record.

The applicant sought judicial review of a decision by the Chair of the Workplace Safety and Insurance Appeals Tribunal refusing to reconsider three prior decisions.

The court issued a notice under Rule 2.1 of the Rules of Civil Procedure that the application might be dismissed as frivolous, vexatious, or an abuse of process.

After considering the applicant's written submissions, the court dismissed the application, finding it was an abuse of process attempting to relitigate matters that had already been finally determined.

The moving party landlord brought a motion to quash the tenants' appeal of a Landlord and Tenant Board decision that lifted a stay on an eviction order.

The tenants had previously consented to an order to pay arrears but breached it shortly after.

The tenants requested an adjournment to obtain legal advice, which the court denied.

The court found the appeal devoid of merit, as it did not raise a question of law and a successful appeal would not change the outcome given the unappealed consent order.

The motion to quash the appeal was granted.

The self-represented appellant appealed a case conference judge's dismissal of his Form 14 Notice of Motion, which sought to stay and vary a final order regarding child and spousal support.

The Divisional Court dismissed the appeal, finding that the appellant failed to use the proper procedure (a Motion to Change) and that the Family Court had no jurisdiction to stay the final order in the absence of a proper motion or appeal.

The court noted the appellant's failure to provide an adequate record and found no error in the lower court's decision.

The respondent, having successfully defended an application for judicial review, sought partial indemnity costs of approximately $42,600.

The applicants argued the amount was excessive and disproportionate, noting their own full indemnity costs were only $21,000.

The Divisional Court agreed the hours spent and number of lawyers involved by the respondent were disproportionate to the issues, which involved no factual disputes.

The court fixed costs at $25,000 inclusive of disbursements and HST.

The applicant sought judicial review of a decision by the Appeals Committee of the National Dental Examining Board, which denied her appeal of a failing grade on a clinical skills exam.

The respondent moved to dismiss the application for delay, noting it was commenced 14 months after the decision.

The Divisional Court found the delay excessive, rejected the applicant's explanation regarding without prejudice communications, and found the respondent would suffer prejudice.

The application for judicial review was dismissed for delay.

The appellant appealed a trial decision ordering him to pay child support based on an imputed income of $75,000 and dismissing his claim for equalization of net family property.

The Divisional Court dismissed the appeal, finding no palpable and overriding error.

The trial judge's decision to impute income was justified by the appellant's deliberate failure to make financial disclosure, intentional underemployment, and manipulation of documents.

The dismissal of the equalization claim was upheld based on the trial judge's finding that the parties had already settled property division in 2011.