Phillip W. Sutherland

The landlords appealed a decision of the Landlord and Tenant Board ordering them to repay unlawful rent increases to the tenants.

The landlords argued that section 135.1 of the Residential Tenancies Act, which deems certain rent increases not void if paid for 12 consecutive months, prevented the Board from ordering repayment.

The Divisional Court found that while the Board erred in characterizing the legislative purpose of section 135.1, it did not err in interpreting 'finally determined' or in applying the law to the facts.

The appeal was dismissed, and the landlords were required to repay the illegal rent.

The appellant appealed a decision of the Capital Markets Tribunal finding that he engaged in fraudulent conduct under s. 126.1 of the Securities Act by approving unauthorized transfers of cash between investment funds to pay distributions and dealer fees.

The appellant argued the Panel erred in its factual findings, its rejection of his due diligence and reliance on legal advice defences, and its imposition of sanctions.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Panel's factual findings or legal analysis, but reduced the disgorgement order from $51,361 to $45,298 based on a concession by the respondent regarding the calculation methodology.

The plaintiff brought a motion to discharge the defendant's construction lien, arguing it was discharged when the defendant inadvertently "registered" an application to delete it.

The defendant argued the lien was not discharged because the "registration" was incomplete as it was never certified by the Land Registrar and was subsequently withdrawn.

The court, applying statutory interpretation principles to the Land Titles Act and Land Registration Reform Act, held that "registration" is a staged process requiring both receipt and certification by the Land Registrar.

Since the application to delete the lien was received but not certified and was withdrawn, it was never fully registered, and thus the original lien was not discharged.

The plaintiff's motion was dismissed.

The appellant appealed an order granting title of a disputed strip of land to the respondent neighbour under s. 37 of the Conveyancing and Law of Property Act.

The application judge found the respondent had made lasting improvements to the land, including a retaining wall and parking pad, under the honest and reasonable belief that the land was his.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's findings of fact or exercise of discretion regarding the transfer of land and the denial of costs.

The appellant tenant appealed an order of the Condominium Authority Tribunal holding him jointly and severally liable with his landlord to pay $18,239.60 in compensation to the condominium corporation.

The Divisional Court allowed the appeal, finding a breach of procedural fairness because the corporation had not requested this relief against the tenant and the Tribunal's procedural order did not list it as an issue.

The Tribunal's order was varied to make the landlord solely liable for the compensation.

The moving party brought a motion for leave to appeal an order dated May 15, 2023.

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

The third parties brought a motion for leave to appeal the order of Jaye Hooper J. dated February 27, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $4,000 to the responding parties.

The moving party brought a motion for leave to apply for judicial review of an adjudicator's interim and final decisions.

The Divisional Court granted leave to apply for judicial review and ordered that the adjudicator's decisions be stayed pending the final determination of the application.

The applicant sought judicial review of a reconsideration decision by the respondent police service, which refused to remove non-conviction information from his Vulnerable Sector Check.

The information related to withdrawn and stayed charges involving allegations of criminal harassment, sexual assault, and sexual interference where the alleged victims included children.

The Divisional Court dismissed the application, finding that the police service's interpretation of 'alleged victim' and 'pattern of predation' under the Police Records Checks Reform Act was reasonable and consistent with the legislation's purpose of protecting children and vulnerable persons.

The appellant appealed an order directing the sale of a vacant property solely owned by the respondent, where the parties had previously cohabited.

The appellant argued the sale should be delayed until the validity of their cohabitation agreement, which contained a purchase option, was determined at trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent should not be forced to pay significant monthly maintenance for an unused property, especially since the sale proceeds would be held in trust pending final resolution.

The appellant doctor performed a septorhinoplasty on a patient and charged professional and facility fees for the rhinoplasty component, claiming it was uninsured.

The Ministry of Health determined the entire procedure was medically necessary and therefore an insured service, requiring the doctor to reimburse the patient.

The Health Services Appeal and Review Board confirmed the Ministry's decision.

On appeal and judicial review, the Divisional Court upheld the Board's decision, finding its interpretation of the Schedule of Benefits was correct and its factual determination that the rhinoplasty was medically necessary was reasonable.

The appellant, N.H., appealed a decision of the Consent and Capacity Board which found him incapable of consenting to medical treatment for a mental disorder (antipsychotic medication and/or electroconvulsive therapy).

The Board's decision was based on N.H.'s inability to appreciate the reasonably foreseeable consequences of his treatment decisions due to his mental illness, despite understanding the relevant information.

The Superior Court of Justice reviewed the Board's decision on a standard of palpable and overriding error, finding that the Board's conclusion regarding N.H.'s lack of appreciation was amply supported by the evidence, including his inconsistent testimony about his mental illness.

The appeal was dismissed, affirming the Board's finding of incapacity.

The defendants brought a motion under s. 44 of the Construction Act for the return of monies deposited into court, relying on an adjudicator's interim determination that no monies were owed to the plaintiff.

The plaintiff opposed, arguing that an interim adjudication decision alone is insufficient to warrant the release of security.

The court dismissed the defendants' motion, holding that an adjudicator's determination, while admissible, is an interim decision and not a sufficient evidentiary basis to conclude that the lien claim no longer requires security under s. 44(5) of the Act.

The court emphasized that releasing security based solely on an interim adjudication would undermine the Act's purpose of providing security for lien claimants.

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying his claim for catastrophic impairment benefits following a motor vehicle accident.

The LAT found that a subsequent fall and seizure was an intervening event not caused by the accident.

On appeal, the appellant argued the LAT breached procedural fairness by allowing the insurer to raise causation late, and erred by applying the 'but for' causation test instead of the 'material contribution' test.

The Divisional Court dismissed the appeal, holding that the procedural fairness issue could not be raised for the first time on appeal, and that the LAT correctly applied the 'but for' test as this was not an exceptional case involving multiple tortfeasors.

The applicants sought judicial review of interlocutory orders staying their proceedings before the License Appeal Tribunal (LAT) regarding catastrophic impairment claims.

The LAT had stayed the proceedings to allow the applicants to attend medical examinations requested by the insurer.

The Divisional Court dismissed the applications as premature, applying the principle that courts should not interfere with ongoing administrative proceedings absent exceptional circumstances.

The court found no such exceptional circumstances, even though the applicants raised a jurisdictional issue regarding the LAT's power to issue the stays.

The self-represented tenants appealed an order of the Landlord and Tenant Board terminating their tenancy.

At the hearing of the appeal, the tenants requested an adjournment to file materials, citing a traumatic brain injury.

The Divisional Court denied the adjournment, noting it was the second such request and no medical evidence was provided.

On the merits, the court dismissed the appeal, finding the Board did not unreasonably exercise its discretion in denying a prior adjournment request and proceeding in the tenants' absence.

The appellant appealed an order directing the partition and sale of the parties' matrimonial home.

The appellant also brought a preliminary motion to introduce fresh evidence regarding his medical condition and the difficulty of finding alternative accommodation.

The Divisional Court dismissed the motion for fresh evidence, finding it could have been obtained with due diligence prior to the original hearing.

The court also dismissed the appeal, concluding the motion judge made no palpable and overriding error in finding that partition and sale would not prejudice the appellant's substantive rights and that the respondent's motion was not frivolous or vexatious.

The appellant appealed a motion judge's decision allowing a breach of trust claim to be joined with a construction lien claim under the amended Construction Act.

The Divisional Court allowed the appeal, holding that while the Act itself is silent on joinder, O. Reg. 302/18 expressly permits only the joinder of breach of contract or subcontract claims.

By implication, the regulation precludes the joinder of trust claims in a construction lien proceeding.

The order permitting joinder was set aside and the trust claims were struck.

The applicant sought judicial review of a school board's decision denying her request to make an oral presentation at a board meeting regarding the flying of the pride flag and transgender issues.

The Divisional Court dismissed the application primarily due to an egregious and unexplained 21-month delay in perfecting the application.

In the alternative, the court found the board's decision was reasonable, as the proposed presentation contradicted the board's statutory duties to promote an inclusive school climate, and the board minimally impaired the applicant's freedom of expression by offering to distribute her presentation in written form.

This decision addresses the second part of a bifurcated trial concerning a construction contract dispute.

The plaintiff, a construction company, sought payment for unpaid invoices, while the defendants counterclaimed for deficient and incomplete work, as well as punitive, exemplary, and general damages under the Consumer Protection Act.

The court found that the defendants had unjustifiably terminated the contract.

Consequently, the plaintiff's claim for outstanding payments was largely allowed, with a minor reduction for an acknowledged credit.

The defendants' extensive counterclaim for damages was mostly dismissed, as they failed to provide sufficient evidence for many claims and were found to be the breaching party.

Only a small portion of their compensatory damages claim for specific deficiencies was allowed.