Richard A. Fink

A proposed class action brought by injured workers who were denied full non-economic loss benefits under the Workplace Safety and Insurance Act on the basis of asymptomatic pre-existing conditions.

The plaintiff alleged that the denials resulted from an internal policy illegally adopted to save money.

The action was pleaded in misfeasance in public office, bad faith, and negligence.

The motion judge struck the statement of claim as disclosing no cause of action, finding the claims fell within the privative clause.

The Court of Appeal allowed the appeal, holding that the misfeasance in public office and negligence claims were properly pleaded and not plainly barred by the privative clause.

Bad faith was found not to be a free-standing cause of action but rather an element of misfeasance in public office.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that denied her entitlement to loss of earnings benefits due to her failure to accept offers of modified duties from her employer.

The applicant argued she was not given proper notice of the possible permanent termination of her benefits.

The Divisional Court found that the Tribunal's decision was reasonable, as there was ample evidence supporting the finding of notice and the applicant's capability to perform modified work.

The application for judicial review was dismissed.

Following an appeal and cross-appeal, the appellant sought costs against the respondent tenants.

The Divisional Court awarded costs to the appellant fixed at $15,000 on a partial indemnity basis.

The court declined to order the costs payable on a joint and several basis, instead directing that each respondent tenant pay an equal share of the total costs award.

The tenants appealed a Divisional Court decision that reversed a Landlord and Tenant Board order granting a 2.5% rent reduction.

The Board had found that the landlord's removal of fenced-in gardens to build townhouses constituted a reduction in 'common recreational facilities'.

The Court of Appeal held that the Divisional Court erred in applying a correctness standard of review, finding that reasonableness was the appropriate standard.

While the Board's finding that the landscaped areas were 'common recreational facilities' was reasonable, its conclusions that there was a 'reduction' in facilities and its calculation of the rent reduction were unreasonable.

The appeal was dismissed.

The landlord appealed a Landlord and Tenant Board decision granting the tenants a 2.5 per cent rent reduction due to the loss of green space resulting from infill construction.

The Board had found the lands constituted a 'common recreational facility' under the Tenant Protection Act, 1997.

The Divisional Court allowed the appeal, holding that ordinary green space does not meet the statutory definition of a facility, which requires something built or installed to perform a particular function.

The Court also found the Board erred in law by calculating the rent reduction using a novel mathematical approach rather than the mandatory method prescribed by regulation.

The appellants appealed a tribunal decision allowing a rent increase based on capital expenditures.

The tribunal had found the expenditures were not 'unreasonable' under s. 138(7) of the Act.

The Divisional Court held that the tribunal applied a legally flawed and overly narrow definition of 'unreasonable' by limiting it to non-arm's length transactions or frivolous expenditures.

The court also found the tribunal erred by ignoring the landlord's potential double recovery from coin-operated laundry machines.

The appeal was allowed, and the matter was remitted to a differently constituted tribunal for a re-hearing.