R. D. Reilly

The appellant mother appealed a child protection judgment making her three children Crown wards.

She sought to introduce fresh evidence and argued the trial judge erred by admitting and relying heavily on a court-ordered parenting assessment by Dr. Lynch, while disregarding competing medical reports.

The Divisional Court dismissed the appeal, finding the fresh evidence inadmissible as it was available at trial.

The court held the trial judge made no palpable and overriding error in admitting Dr. Lynch's report under section 54 of the Child and Family Services Act, nor in preferring his evidence over the appellant's experts.

Claims of judicial bias and ineffective trial counsel were also dismissed.

The defendant insurer brought a motion for summary judgment dismissing an insured’s claims for breach of contract, intentional infliction of mental distress, bad faith, and aggravated, punitive and exemplary damages arising from the denial of non-earner accident benefits.

The court held there was a genuine issue requiring a trial on whether the insurer’s 2004 denial complied with the Statutory Accident Benefits Schedule, including the notice requirements under s. 32 and related provisions, and therefore whether the limitation period was triggered.

However, the court granted summary judgment dismissing claims for mental distress, bad faith, and punitive-type damages.

The court found the insurance contract was not a “peace of mind” contract whose breach would reasonably contemplate psychological harm, the alleged mental suffering was insufficient to warrant compensation, and the insurer’s conduct did not amount to bad faith or high‑handed misconduct.

Following a civil trial in which the plaintiff obtained a modest damages award but failed on most claims, the parties made written submissions regarding costs.

The plaintiff sought costs in excess of $8,700, but the submissions and bills of costs were inconsistent and difficult to interpret.

The court considered its discretion under s. 131 of the Courts of Justice Act and the principles in Rule 57.01 of the Rules of Civil Procedure.

Taking into account the partial success at trial, the confusing documentation, and the circumstances of the parties, the court awarded reduced costs inclusive of disbursements and taxes.

Following a five‑day family law trial, the court addressed costs after the parties were unable to agree.

The applicant had been largely successful at trial and sought costs exceeding $67,000, while the respondent sought comparable costs or alternatively an order that each party bear their own costs.

The court applied the presumption in Rule 24(1) of the Family Law Rules that a successful party is entitled to costs, while considering discretion under s. 131 of the Courts of Justice Act and the parties’ financial circumstances.

Particular weight was given to the fact that the children primarily resided with the respondent and the potential financial impact of a costs award on the custodial parent.

The court ordered the respondent to pay reduced costs of $37,000 inclusive of disbursements and taxes, payable from her share of the matrimonial home proceeds or through set‑off against spousal support if necessary.

A tenant brought an action against a housing co‑operative alleging negligence arising from long‑standing maintenance deficiencies, including mould contamination, and the removal and loss of her personal property during remediation work.

The court found that the co‑operative failed to maintain the unit in a habitable condition and failed to complete remediation and restoration within a reasonable time.

The court further found that the co‑operative improperly required the tenant to remove the contents of the unit and failed to safeguard and return the property after it was removed.

Claims for general, aggravated, and punitive damages were rejected for lack of evidence.

The plaintiff was awarded damages for the loss of personal property and reimbursement of certain payments.

Following dismissal of a family law application, the court determined the appropriate costs award.

Although the respondent was wholly successful, the court found the application raised a unique issue for which counsel could not identify directly applicable jurisprudence.

The court concluded that the proceeding was not frivolous or unreasonable despite the applicant’s lack of success.

As a result, the successful respondent was awarded costs on a partial indemnity scale rather than a higher scale.

Costs were fixed in a lump sum inclusive of disbursements and taxes and ordered payable forthwith.

The plaintiff brought a motion to set aside an administrative dismissal of her civil action for delay under Rule 48.14 of the Rules of Civil Procedure.

The dismissal resulted after counsel failed to diarize a status notice deadline, leading to the action being dismissed by the registrar.

The court applied the contextual analysis articulated in Reid v. Dow Corning Corp. and Scaini v. Prochnicki, considering the explanation for delay, inadvertence in missing deadlines, promptness of the motion to set aside, and prejudice to the defendant.

Although counsel’s conduct bordered on negligence, the court found the plaintiff had always intended to pursue the litigation and that the motion was brought promptly once the dismissal was discovered.

Finding no significant prejudice to the defendant, the court set aside the administrative dismissal and allowed the action to proceed.

The applicant sought a declaration dividing the respondent’s Canadian Forces pension under the federal Pension Benefits Division Act and requiring execution of documents to implement the division.

The court held that the federal legislation does not create an independent entitlement to pension division but merely provides a mechanism for implementing equalization of pension assets.

Entitlement to share in the pension must first arise through provincial family property legislation.

Because the claim was effectively an equalization claim brought more than six years after separation, it was barred by the limitation period under s.7(3) of the Family Law Act.

The application was therefore dismissed.

The applicant, charged with tax fraud, brought an application under s. 11(b) of the Charter seeking a stay of proceedings due to unreasonable delay.

The total time from the laying of charges to the anticipated end of the trial was approximately 85 months.

The court applied the Morin framework and found that the delay was not unreasonable given the extreme complexity of the case, the voluminous electronic disclosure, the involvement of multiple co-accused, and the applicant's waiver of earlier trial dates to retain her preferred counsel.

The application was dismissed.

The applicant sought costs for an original motion before Justice Maranger and for a judicial review application before the Divisional Court.

The Law Society opposed the request, noting the applicant had mixed success as she did not obtain the permanent stay she sought.

The court agreed the applicant's success was mixed, as it merely maintained the interim stay pending an appeal before the Law Society Appeal Panel.

The court awarded the applicant $5,000 in costs for the motion before Justice Maranger, but declined to award costs for the judicial review.

The applicant school board sought judicial review of an arbitrator's award which found that certain technology integrators, hired as independent contractors through a third party, were actually employees of the board and 'teachers' within the respondent union's bargaining unit.

The Divisional Court held that the standard of review was reasonableness.

The court found the arbitrator's decision unreasonable because he conflated the workers' desire to become employees with a legal intention to form an employment relationship, and his analysis of whether they were teachers was logically flawed.

The application for judicial review was allowed, the award quashed, and the matter remitted for rehearing.

The applicant union sought judicial review of an arbitration award dismissing a grievance for severance pay for employees following a plant closure.

The arbitrator ruled that the employees were not eligible for severance pay under the Employment Standards Act, 2000 because they received pension benefits that fell within the statutory exemption.

The Divisional Court held that the arbitrator's interpretation of the legislation, including her consideration of the Pension Benefits Act and use of commuted values to compare pension benefits, was reasonable.

The application for judicial review was dismissed.

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.

The appellant landlord appealed a decision of the Landlord and Tenant Board pursuant to s. 210 of the Residential Tenancies Act.

The appellant argued she was denied procedural fairness at the hearing because she may not have understood her role and failed to fully participate.

The Divisional Court dismissed the appeal, finding that the Vice Chair accorded the appellant a full opportunity to present evidence and examine witnesses, and that she was assisted at the hearing.

Costs of $5,000 were awarded to the respondent tenants.

The appellant appealed a decision of the Social Benefits Tribunal which held that the definition of disability under the Ontario Disability Support Program Act (ODSPA) was not discriminatory and did not conflict with the Human Rights Code.

The appellant argued that because he met the broader definition of disability under the Code, denying him benefits under the narrower ODSPA definition was discriminatory.

The Divisional Court dismissed the appeal, finding that the ODSPA is a special program designed to ameliorate the conditions of a disadvantaged group under s. 14(1) of the Code.

The government is not required to extend benefits to every conceivable member of a broad class, and providing benefits to the most disadvantaged is not discriminatory.

The appellant builder appealed a License Appeal Tribunal decision awarding the respondent homeowners $11,234 to replace ceramic tiles that did not comply with the Ontario Building Code.

The parties consented to an order setting aside the Tribunal's decision and substituting an award of $4,000 plus costs.

The Divisional Court approved the settlement, noting that the Tribunal erred in effectively ordering specific performance rather than assessing damages based on the floor's useful life or the cost of stiffening it, as required by prior jurisprudence.

The appellant appealed an order of the Landlord and Tenant Board finding he was not an authorized occupant or tenant of a Toronto Community Housing Corporation unit.

The appellant alleged discrimination on the basis of sexual orientation, spousal status, and disability, as well as bias by the Board Member.

The Divisional Court dismissed the appeal, finding the Board's decision was fully supported by the evidence, there was no discrimination or bias, and the appeal improperly raised factual issues rather than questions of law.

The applicant, a former First Nations Constable, sought judicial review of the 1998 decisions terminating her employment and her appointment as a police officer.

The application was commenced in 2007 and perfected in 2008, nearly ten years after the impugned decisions.

The Divisional Court dismissed the application for delay, finding the applicant's explanations for the delay unsatisfactory and noting that the respondents would suffer actual prejudice due to the passage of time and the unavailability of witnesses.

The defendants appealed a motion judge's decision refusing to stay an Ontario multi-jurisdictional class action in favour of a similar Saskatchewan class action that had been certified earlier.

The defendants argued that the principles of comity and full faith and credit constitutionally required the Ontario court to defer to the Saskatchewan certification order.

The Divisional Court dismissed the appeal, holding that the motion judge was not bound to stay the proceeding, particularly given a prior Ontario carriage decision that found the plaintiffs' counsel in the Saskatchewan action unsuitable to represent a national class.

The court also found that permitting two overlapping multi-jurisdictional class actions to proceed did not constitute an abuse of process.

The plaintiff was successful on an appeal from the Small Claims Court and sought costs of $5,542.99 on a partial indemnity basis.

The defendants argued the claim was excessive.

The court agreed with the defendants, noting the original damages claimed were only $4,000 and the appeal did not require extensive preparation.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure, the court awarded the plaintiff costs fixed at $3,200 inclusive of disbursements and GST.