ONSCDC 2022

The moving parties sought to settle an order denying leave to appeal to the Divisional Court by inserting a provision transferring the appeal to the Court of Appeal.

The responding party opposed the request, arguing that substantive relief not requested in the original motion cannot be sought during an appointment to settle an order.

The court agreed, holding that a motion to settle an order is procedural and declined to vary the order as signed by the Registrar.

The applicant brought a motion to add items to the record of his application for judicial review, to require an unredacted record, and to cross-examine the respondent's staff member.

The court dismissed the motion to adduce new evidence not before the decision-maker, except for one document admitted on consent.

The request for an unredacted record was dismissed with directions provided for handling privacy redactions.

The request to cross-examine the staff member was dismissed as it is expressly precluded by the Police Services Act.

The appellants appealed a Master's order dismissing their motion to set aside a default judgment.

The Divisional Court found that while the Master failed to properly apply the four-part test for setting aside a default judgment, the record demonstrated that the appellants failed to move promptly and lacked a reasonable explanation for their delay.

The court assessed the proposed defence as weak and concluded that the interests of justice did not warrant setting aside the default judgment.

The appeal was dismissed.

The applicant sought judicial review.

The court had previously raised a preliminary issue regarding the jurisdiction of the Internal Complaints Review Committee and the Child and Family Services Review Board.

After reviewing additional materials filed by the parties, the court concluded the matter should proceed to a hearing on the merits.

The court also granted the applicant leave to file an amended factum over the respondent's objection, and set a schedule for further filings.

The applicant children's aid society brought a motion for leave to appeal an order.

The Divisional Court dismissed the motion for leave to appeal and lifted the stay of the order.

Costs of $3,000 were awarded to one respondent and $3,000 to two other respondents.

The moving party brought a motion for leave to appeal an order dated November 22, 2022.

The Divisional Court granted leave to appeal with costs fixed at $3,000, payable in the discretion of the appeal panel.

The court ordered the appeal to be heard on an expedited basis and scheduled a case management teleconference to set a schedule.

The insurer appealed a Licence Appeal Tribunal decision finding that the insured's claim for income replacement benefits was not statute-barred, as the termination letter was not clear and unequivocal.

The insured cross-appealed the dismissal of her claim for post-104 week income replacement benefits, arguing the adjudicator failed to consider whether alternative employment was comparable in status and reward.

The Divisional Court dismissed both appeals, holding that the limitation issue was a question of mixed fact and law not subject to appeal, and that the post-104 test under the Schedule does not require alternative employment to be comparable in status and reward.

The appellant real estate broker appealed a Licence Appeal Tribunal decision suspending his registration for three months.

The suspension was based on false statements in registration applications and workplace misconduct.

The appellant argued he was denied procedural fairness because the notice of proposal did not include the workplace misconduct allegations.

The Divisional Court agreed, finding the LAT improperly relied on unparticularized evidence of workplace misconduct to support its finding that the appellant would not carry on business with integrity and honesty.

The appeal was allowed and the matter remitted for a new hearing.

Following an appeal in an estate matter, the respondent sought costs of $43,630.71 on a substantial indemnity basis, payable immediately rather than from the appellant's share of the estate.

The Divisional Court found no reprehensible conduct to justify substantial indemnity costs and fixed costs at $28,000 on a partial indemnity basis.

The court ordered the costs to be paid forthwith due to uncertainty regarding the timing of the estate's distribution.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB) confirming a decision of the Inquiries, Complaints and Reports Committee (ICRC) to issue a caution and require a specified continuing education or remediation program.

The complaint was initiated by the patient's spouse regarding complementary medicine and record-keeping.

The applicant argued the ICRC investigation was procedurally unfair due to late disclosure of documents and that the complaint should not have been investigated as it was not from the patient.

The Divisional Court dismissed the application, finding no breach of procedural fairness and holding that the ICRC was within its mandate to investigate third-party complaints to protect the public interest.

A case conference was held to determine the procedure for appealing a costs-only order made under Part V of the Succession Law Reform Act.

The appellant argued that s. 76 of the Act provides an appeal as of right, while s. 133 of the Courts of Justice Act requires leave to appeal costs orders.

The case management judge directed that any party seeking to appeal the costs order must bring a motion for leave to appeal in writing under Rule 62.02, where they may make submissions on the apparent statutory conflict.

The landlord brought a motion to lift the automatic stay of Landlord and Tenant Board orders pending the tenant's appeal, citing rental arrears.

The court found that the tenant had paid the majority of the arrears and December rent, leaving only a minimal amount owing.

The court declined to lift the stay but adjourned the motion without prejudice if future rent was not paid.

The court also granted the self-represented tenant a final extension of time to perfect her appeal.

The applicant brought motions for further production of documents and to strike an affidavit in the context of his applications for judicial review of the Law Society of Ontario's decisions to close his complaints against two lawyers.

The court dismissed the motion for production, finding that the decision to close a complaint is not the exercise of a statutory power of decision under the Judicial Review Procedure Act, and that internal memoranda are protected by deliberative privilege.

The court also dismissed the motion to strike the affidavit of the Intake and Resolution Counsel, finding it properly detailed the process followed.

The applicant physician moved for an urgent interim injunction to stay the revocation of his hospital privileges pending judicial review of a decision by the Health Professions Appeal and Review Board.

The court applied the modified RJR-MacDonald test and found that the applicant failed to establish a strong prima facie case, as the statutory provisions relied upon applied to reappointment rather than mid-term revocation.

The court also found no irreparable harm and that the balance of convenience did not favour a stay.

The motion was dismissed with costs awarded to the respondent hospital.

The Licence Appeal Tribunal (LAT) brought a motion for leave to intervene as a friend of the court in an appeal of its own decision regarding statutory accident benefits.

The appellant opposed the motion, while the respondent consented.

The Divisional Court granted the motion, finding that the LAT could make a useful and distinct contribution on the statutory and procedural context and procedural fairness.

However, the court restricted the LAT from making submissions on the standard of review or reasonable apprehension of bias to avoid the tribunal defending its own decision.

The applicant municipality sought judicial review of a decision by the respondent Board to reaffirm a cost apportionment formula for shared social services that had been used since 2004.

The applicant argued that the governing regulation required a 'double majority vote' in every year the alternate formula was continued.

The Divisional Court dismissed the application, finding that the legislation did not require an annual double majority vote once the alternate formula was initially approved, and that the Board's decision was neither ultra vires nor unreasonable.

The appellant appealed a decision of the Land Planning Appeal Tribunal fixing compensation for expropriated land.

The appellant argued the Tribunal erred in refusing an adjournment, determining the highest and best use of the land, and demonstrating a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Tribunal's factual findings that the appellant failed to establish a legal non-conforming commercial or industrial use.

The court also held the Tribunal's refusal of an adjournment and its procedural rulings to manage the appellant's disruptive behaviour were reasonable and did not give rise to a reasonable apprehension of bias.

The landlord appealed a Landlord and Tenant Board (LTB) decision terminating a tenancy but denying jurisdiction to award compensation under an L3 application.

The Divisional Court upheld the LTB's finding that it lacked jurisdiction to award compensation on an L3 application, which is strictly for termination.

However, the Court found a breach of procedural fairness because the LTB member determined the termination date without allowing the landlord to make submissions on that issue.

The appeal was allowed in part to set aside the specific termination date, while the jurisdiction appeal was dismissed.

The applicant, a plastic surgeon, sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB) confirming a decision of the Inquiries, Complaints and Reports Committee (ICRC).

The ICRC required the applicant to be cautioned for failing to attend in person to a patient with a severe hand injury while on-call, and advised him to make appropriate efforts to communicate urgency when handing over care.

The Divisional Court dismissed the application, finding that the HPARB's decision was reasonable and owed deference, as the record supported the conclusions that the applicant should have attended the emergency room and failed to adequately communicate the urgency of the patient's referral.

The appellant appealed a Small Claims Court decision dismissing an urgent motion for a sealing order over the court file.

The appellant had sued its former lawyer and filed allegedly privileged documents in the public court file, which were later obtained by the Attorney General of Canada for use in separate Superior Court proceedings.

The Divisional Court dismissed the appeal, finding that the appellant waived solicitor-client privilege by advertently disclosing the documents in the public proceeding, even if done in ignorance of the legal consequences.

The appellant failed to meet the stringent test for a sealing order.