Phillip W. Sutherland

The applicant sought judicial review of a decision by the Agriculture, Food and Rural Affairs Tribunal, which summarily dismissed its appeal from a decision of the Egg Farmers of Ontario (EFO).

The Tribunal had found it lacked jurisdiction to order the EFO to implement a direct marketing system without a prior investigation or decision by the EFO, and alternatively dismissed the appeal as vexatious and in bad faith.

The Divisional Court applied the reasonableness standard of review and upheld the Tribunal's decision, finding that the Tribunal cannot direct the EFO to exercise discretionary powers without a substantive basis.

The application for judicial review was dismissed with costs awarded to the respondent.

The tenant appealed a decision of the Landlord and Tenant Board dismissing her motion to void an eviction order under s. 74(11) of the Residential Tenancies Act.

The tenant argued that because she was on a month-to-month tenancy, s. 74(12), which limits a tenant to one such motion 'during the period of the tenant's tenancy agreement', reset every month.

The Divisional Court dismissed the appeal, holding that the tenant's interpretation would lead to an absurd result and render the statutory limitation meaningless, as a month-to-month tenancy is a continuation of the same tenancy agreement.

The plaintiff brought an action against his brother's former wife, claiming she held his interest in a property in trust.

The property had been sold and the proceeds disbursed pursuant to family law proceedings between the brother and his former wife.

The plaintiff argued for an express, constructive, or resulting trust.

The court dismissed the action, finding insufficient evidence of an express trust, no equitable obligation or unjust enrichment to support a constructive trust, and that the presumption of resulting trust did not apply.

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 appellant appealed a Small Claims Court decision dismissing her defamation and negligence action against the respondent for publishing regulatory disciplinary decisions about her.

The Deputy Judge dismissed the action at a settlement conference on the basis that it was bound to fail because the publication of quasi-judicial decisions is protected by absolute privilege.

The Divisional Court dismissed the appeal, finding no error in the Deputy Judge's conclusion that the claims had no merit and that the action could be summarily dismissed.

The plaintiff brought a motion for summary judgment seeking damages arising from an aborted real estate transaction.

The defendant failed to close the purchase of the plaintiff's home, alleging the plaintiff misrepresented the lot frontage.

The court found no genuine issue requiring a trial, as the Agreement of Purchase and Sale required the purchaser to verify measurements and there was no evidence the frontage was materially significant to the defendant.

The court awarded the plaintiff damages for the difference in sale price and carrying costs, and ordered the deposit to be credited towards the damages.

The moving party brought a motion for leave to appeal an order dated July 11, 2022.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the respondents in the fixed amount of $21,000 all inclusive.

The moving parties brought a motion for leave to appeal the order of Dietrich J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding party.

The moving parties brought motions for leave to appeal the order of Koehnen J. dated June 9, 2022.

The Divisional Court dismissed the motions for leave to appeal with no order as to costs.

The tenants appealed a Landlord and Tenant Board decision terminating their tenancy for the landlord's own use, arguing the application was retaliatory and in bad faith under s. 83(3) of the Residential Tenancies Act.

The tenants also brought a motion to adduce fresh evidence.

The Divisional Court dismissed the fresh evidence motion, finding the documents were available before the hearing and were an attempt to reargue facts.

The Court dismissed the appeal, holding that the tenants' arguments regarding retaliation, the landlord's conduct, and procedural fairness were essentially challenges to the LTB's factual findings, which do not constitute extricable errors of law.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a committee's decision to issue a caution regarding his obstetrical care of a patient whose infant died.

The applicant argued the committee breached procedural fairness by rejecting his proposal for a remedial agreement and ignoring his expert's report.

The Divisional Court dismissed the application, finding the board's decision reasonable, as the committee was not bound by its decision-making framework guidelines and was entitled to weigh the expert evidence using its own specialized medical knowledge.

The appellant appealed a Licence Appeal Tribunal decision confirming the Registrar's refusal to issue him a cannabis retail manager licence.

The refusal was based on the appellant's past conduct, including his involvement in an illegal dispensary, a prior conviction for possession for the purpose of trafficking, and ongoing civil litigation involving allegations of bad faith.

The Divisional Court dismissed the appeal, finding that the Tribunal did not err in law in its factual findings and that the appellant was afforded procedural fairness during the hearing de novo.

The appellant tenants appealed an eviction order from the Landlord and Tenant Board, arguing that one of the co-tenants was denied due process because her name was omitted from the ex parte eviction application and subsequent order.

The Divisional Court dismissed the appeal, finding that the omission was a clerical error, the co-tenant had notice of the proceedings, and she suffered no prejudice.

The court ordered the eviction order amended to add the co-tenant's name nunc pro tunc.

The applicant sought judicial review of a decision by the City of Toronto Review Body denying her late request to review the loss of her rent-geared-to-income (RGI) subsidy.

The applicant lost her eligibility in 2019 for failing to provide required income and asset information, but did not request a review until over two years later.

The Divisional Court dismissed the application, finding that the Review Body met its duty of procedural fairness, which was at the lower end of the spectrum, and that its decision to deny the late request was reasonable given the applicant's failure to provide an adequate explanation for the delay.

The applicant sought judicial review of an adjudicator's decision under the prompt payment provisions of the Construction Act.

The applicant had neither paid the amount ordered by the adjudicator nor obtained a stay of the decision pending the application.

The Divisional Court dismissed the application, holding that failure to comply with a prompt payment order without a stay undercuts the statutory scheme, and invoked equity to decline to hear the application on its merits.

The appellant, a taxi driver, was assaulted by a passenger after exiting his vehicle to collect a fare.

He applied for statutory accident benefits, which were denied on the basis that the incident was not an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule.

The Licence Appeal Tribunal upheld the denial, finding the purpose and causation tests were not met.

The Divisional Court dismissed the appeal, holding that the issues raised were questions of mixed fact and law, not extricable errors of law, and the Tribunal made no error in its application of the legal tests.

The appellant, a former elementary school teacher, appealed convictions for 16 counts of sexual offences and his sentence.

The appeal raised issues including the trial judge's curtailment of cross-examination regarding 'avoidance' and 'delayed disclosure' (collusion defence), the admission and alleged misapprehension of evidence about a principal's warning, and the application of the totality principle in sentencing.

The court found that the trial judge erred in impermissibly curtailing cross-examination on two counts (3 and 11), setting aside those convictions and ordering a new trial for them.

All other grounds of appeal against conviction were dismissed.

The sentence appeal was also dismissed, but the total incarceration period was reduced from 720 days to 630 days due to the two set-aside convictions.

The court also considered fresh evidence regarding collateral consequences of the convictions but did not reduce the sentence further based on them.

The moving parties sought leave to appeal an order dated December 20, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to one responding party on a partial indemnity basis in the amount of $5,000.

No costs were awarded to the other responding parties as no factum was filed.

The moving parties brought a motion for leave to appeal the order of the motion judge.

The Divisional Court granted leave to appeal and awarded costs of $2,500 to the moving parties.

The proposed appellant brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal concerning a pleading amendment, but granted leave to appeal concerning privilege and the real estate solicitor's file.

As success was divided, no costs were awarded.