ONSCDC 2021

The moving party brought a motion for leave to appeal an order of P.W. Nicholson J. and a subsequent costs order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The plaintiffs appealed case conference orders directing that the defendants' liability be determined by summary judgment motions involving viva voce cross-examination of five expert witnesses.

The Divisional Court held that while a case conference judge has jurisdiction to make orders involving powers under Rule 20.04, such jurisdiction should be exercised sparingly.

The court found the case conference judge erred in principle by making the orders without an evidentiary record and by inverting the proper analysis.

The appeal was allowed, the orders were set aside, and the liability case against the Eaton Centre defendants was directed to proceed to trial.

The applicants were successful in their application for judicial review of a Small Claims Court costs decision, which was remitted back to the Deputy Judge for reconsideration and provision of reasons.

In this costs endorsement, the court awarded costs to the applicants despite their counsel acting pro bono, noting that such awards promote access to justice.

The court rejected the applicants' claim for substantial indemnity costs, finding the result was not better than their offer to settle.

Balancing the factors under Rule 57.01(1) and the principle of proportionality, the court fixed costs at $5,000 all inclusive.

The appellant appealed a Licence Appeal Tribunal decision finding she was not catastrophically impaired under s. 3.1(1) 2. iii of the Statutory Accident Benefits Schedule.

The appellant suffered a severe and permanent alteration of the structure of her leg, but her functional mobility impairment (measured by the SCIM) was only temporary.

The Divisional Court upheld the adjudicator's interpretation that the SABS requires both the structural and functional alterations to be permanent to meet the catastrophic impairment threshold.

The appeal was dismissed.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB), which affirmed the Ontario College of Nurses' decision not to further investigate her complaint against a nurse.

The complaint, alleging falsified medical records at a fertility clinic, was made a decade after the events.

The court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure, considering dismissing the application as frivolous and vexatious.

Finding no arguable error in HPARB's reliance on contemporaneous medical records over the applicant's decade-old personal recollection, the court dismissed the application.

The moving party sought an extension of time to file an application for judicial review of decisions made by the Licence Appeal Tribunal.

At the case conference, the moving party advised she would proceed by appeal if the respondents did not oppose an extension of time and if the judicial review application could be held in abeyance pending the outcome of her appeal and the Court of Appeal's decision in Yatar.

The respondents did not oppose the extension.

The court granted the extension of time to file the notice of appeal and ordered the judicial review application to be held in abeyance.

The applicant sought judicial review of two decisions by the Human Rights Tribunal of Ontario (HRTO) dismissing her discrimination complaint due to delay and denying reconsideration.

The applicant, who was on sick leave for breast cancer, received a notice in 2014 that her position was eliminated and she would be laid off upon her return to work.

She filed her HRTO application in 2018.

The HRTO found the triggering event for the one-year limitation period was the 2014 notice, not her future return to work.

The Divisional Court held that the HRTO's decisions were reasonable and dismissed the application for judicial review.

The respondent Board brought a motion in a judicial review proceeding to add the subject physician as a party respondent, seal third-party medical records inadvertently included in the record, and strike the self-represented applicant's affidavit, application record, and factum.

The court granted the requests to add the physician and seal the records on consent.

The court struck the applicant's affidavit and portions of her application record as they raised irrelevant policy issues and complaints unrelated to the specific decision under review.

The court declined to strike the factum, finding it provided a manageable summary of the applicant's position for the hearing panel.

The tenant appealed a Landlord and Tenant Board eviction order and obtained an interim stay.

The landlord raised the issue of ongoing rent arrears.

The tenant claimed a hearing disability prevented him from participating electronically and later claimed he was unaware of the rent arrears.

The court found the tenant's claims lacked credibility and that he was likely abusing the process.

The court ordered the tenant to pay $18,840 in arrears into court by December 22, 2021, and ongoing monthly rent of $1,570, failing which the stay of eviction would be lifted.

The self-represented appellant sought judicial review of two Human Rights Tribunal of Ontario (HRTO) decisions that dismissed her application for failure to appear and denied her request for reconsideration.

The appellant had missed the start of a telephone hearing due to a scheduling mistake and childcare duties, but attempted to join and emailed the tribunal within the scheduled hearing time.

The Divisional Court found that the appellant provided a sufficient explanation for her delay and that the HRTO's refusal to reconsider the dismissal was unreasonable.

The HRTO decisions were quashed and the matter was remitted for a new hearing date.

The applicant commenced an application for judicial review challenging mid-hearing procedural rulings made by the Law Society Tribunal.

The Divisional Court issued a notice under Rule 2.1.01 considering the dismissal of the application as frivolous, vexatious, and an abuse of process due to prematurity.

The applicant failed to identify any exceptional circumstances justifying interference with the ongoing administrative process.

The court dismissed the application, finding it premature and an abuse of process designed to interrupt a hearing nearing completion.

The appellant appealed an Associate Justice's order dismissing a motion to correct the plaintiff's name in the title of proceedings based on misnomer.

The Associate Justice found that the defendants would not have reasonably understood that the proposed new plaintiff was the intended plaintiff, as the defendants had expressly refused to contract with that entity.

The Divisional Court found no palpable and overriding error in the Associate Justice's factual findings or application of the objective test for misnomer.

The appeal was dismissed.

The applicant, a city councillor, sought judicial review of a decision by the city council to suspend his remuneration for 270 days based on a report by the integrity commissioner finding he engaged in sexual harassment.

The applicant alleged bias against both the commissioner and the council.

The Divisional Court dismissed the claims against the commissioner, finding he acted fairly and reasonably accommodated the applicant's health issues.

However, the court found a reasonable apprehension of bias against the city council due to public statements and conduct by members before the investigation concluded.

The court quashed the council's sanction decision but, rather than remitting it, imposed the same 270-day suspension itself due to the severity of the misconduct and the lack of an unbiased decision-maker.

Following the dismissal of the moving parties' motion for leave to appeal, the responding parties sought costs pursuant to a consent order.

The Divisional Court awarded the responding parties costs in the amount of $7,500, all inclusive, for the appeal and motion for leave to appeal.

The appellant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the respondent insurer.

The insurer stopped the IRBs when the appellant returned to work, providing a notice that did not include medical reasons.

When the appellant later had to stop working and sought to resume IRBs, the insurer denied the claim, and the Licence Appeal Tribunal found the appeal time-barred.

On appeal, the Divisional Court held that section 37(4) of the Statutory Accident Benefits Schedule requires insurers to provide medical reasons for discontinuing IRBs.

Because the insurer's notice lacked medical reasons, it was not a valid refusal and did not trigger the limitation period.

The appeal was allowed and the matter remitted to the Tribunal.

The appellant tenant sought an adjournment of an appeal from a Landlord and Tenant Board decision because their counsel failed to file the required appeal materials.

The respondent landlord objected, noting the tenant was in arrears of rent and hydro.

The Divisional Court granted a short adjournment to prevent prejudice to the client, on strict conditions that the appellant pay all arrears and file materials by a specified date, failing which the appeal may be dismissed.

The moving party brought a motion for leave to appeal from an endorsement of Audet J. dated October 14, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $4,520 to the responding party.

The applicant abandoned their application for judicial review.

The respondent sought costs of $35,000 on a substantial indemnity basis or $25,000 on a partial indemnity basis.

The Divisional Court found the requested amounts to be far in excess of what is normally awarded in such cases and fixed costs at $10,000 all-inclusive, payable by the applicant to the respondent.

The appellant veterinarian appealed decisions of the Discipline Committee finding he engaged in professional misconduct by dispensing and reselling veterinary drugs to pharmacies in large quantities, contrary to s. 33(2)(d) of the General Regulation under the Veterinarians Act.

The appellant challenged the validity of the regulation, arguing it was ultra vires, vague, overbroad, and improperly enacted without procedural fairness.

The Divisional Court dismissed the appeal, finding the regulation was validly enacted within the College's statutory authority and that the terms 'reasonably limited quantities' and 'temporary shortage' were not unconstitutionally vague.

The court upheld the finding of professional misconduct and the penalty of a one-month suspension, public reprimand, and costs, finding no palpable and overriding error.

The appellants appealed a trial judgment awarding the respondent $25,000 on an unpaid invoice for engineering services.

The trial judge had rejected the appellants' limitation defence, finding the limitation period was suspended during settlement discussions.

The Divisional Court allowed the appeal, finding the trial judge misapprehended the evidence.

The court held that the limitation period expired before any settlement discussions took place, as the appellants had refused to pay the full invoice amount more than two years prior to the commencement of the action.

The judgment and costs order were set aside.