Sarah E. Pepall

The appellant father appealed a final order requiring him to pay prospective and retroactive child support, arguing the motions judge erred in finding his income, providing inadequate reasons, and misapplying the tests for retroactive support and undue hardship.

The Divisional Court found no palpable and overriding error in the income determination and held the reasons were adequate.

While the motions judge conflated the 'undue hardship' test for prospective support with the 'hardship' factor for retroactive support, the Divisional Court applied the correct test and upheld the retroactive award due to the father's long history of underpayment and failure to disclose income.

The appeal was dismissed.

The appellant appealed his convictions for firearms offences arising from an intended armed robbery.

He argued the trial judge erred in instructing the jury on his evidence regarding an innocent association, failing to instruct the jury on the knowledge element of the section 95 charge (knowing the gun was loaded), and failing to stay the section 94 conviction based on the Kienapple principle.

The Court of Appeal dismissed the appeal, finding that any error regarding the innocent association evidence was of no consequence, the omission of the knowledge element caused no substantial wrong given the context of an intended armed robbery, and the trial judge correctly concluded that Kienapple did not apply.

The appellant appealed a summary judgment dismissing her action against the Children's Aid Society and its employees.

The action arose from comments recorded in a child protection file relating to the appellant's grandchild.

The Court of Appeal upheld the motion judge's findings that the employees were protected from suit by statute, the claims lacked evidentiary support, and the statements were protected by qualified privilege.

The appeal was dismissed with costs.

The moving party municipality sought leave to appeal a decision of the Ontario Municipal Board that approved official plan and zoning bylaw amendments permitting a mixed-use high-density development.

The municipality argued the Board failed to have regard to its new official plan, exceeded its jurisdiction regarding community benefits, and provided inadequate reasons.

The Divisional Court dismissed the motion for leave to appeal, finding that the Board's decision on the applicable official plan and height issues were matters of fact or mixed fact and law entitled to deference.

The court also held that the Board did not impose community benefits and that its reasons were adequate and met the duty of procedural fairness.

The applicant, a former NHL referee, brought a motion to vary an order that quashed his affidavit filed in support of an application for judicial review of an Ontario Labour Relations Board decision.

The Divisional Court allowed the motion in part, finding that the motions judge erred in striking portions of the affidavit that went to an essential finding of fact regarding anti-union animus and alleged denials of procedural fairness.

The court reinstated specific paragraphs of the affidavit while upholding the exclusion of the remainder.

The appellant appealed a decision of the Law Society of Upper Canada's Appeal Panel, which upheld the revocation of his license for professional misconduct involving the misappropriation of $418,000 in trust funds.

The appellant argued that exceptional circumstances, including restitution and depression, warranted permission to resign instead of revocation, and that the panels erred by not considering this alternative.

The Divisional Court held that the standard of review was reasonableness, the panels were not obligated to consider a penalty not requested, and the revocation was well within the range of reasonable outcomes.

The appeal was dismissed.

The applicant, a former unionized employee discharged for cause, sought to set aside a single judge's order quashing her application for judicial review of a labour arbitration award.

The single judge had quashed the application on the basis that an individual unionized employee lacks standing to seek judicial review of an arbitration award absent exceptional circumstances.

The Divisional Court panel found that the single judge correctly applied the law and that there was no evidence of deficiency in the union's representation to warrant an exception.

The motion was dismissed with costs awarded to the respondent on a partial indemnity scale.

The appellants appealed a trial judgment ordering them to pay $30,213 on a second mortgage.

They argued the trial judge made inconsistent factual findings regarding a $33,000 mortgage commission and erred in enforcing the mortgage despite the respondent being an unlicensed lender in breach of the Mortgage Brokerages, Lenders and Administrators Act.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the factual findings and holding that a breach of the Act does not render the underlying contract a nullity.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his complaint of discrimination against a Children's Aid Society and its employees, as well as the Tribunal's refusal to reconsider the decision.

The applicant alleged discrimination based on sex, family status, and disability (Multiple Sclerosis) arising from a child access dispute and a request for a mental health assessment.

The Divisional Court dismissed the application, finding the Tribunal's decisions were reasonable, there was no denial of procedural fairness, and no reasonable apprehension of bias was established.

The moving party sought an extension of time to file materials in support of a motion for leave to appeal an Ontario Municipal Board decision until 30 days after the Board disposed of the costs issue.

The respondent developer opposed the extension, arguing the leave motion should proceed without delay.

The court ordered the moving party to file its leave materials by March 30, 2012, but deferred setting a date for the leave motion hearing until the Board fixed its dates for the outstanding issues, balancing the need to avoid undue delay with the efficient use of judicial resources.

The applicant employer sought judicial review of an arbitration award that allowed grievances filed by the respondent union.

The arbitrator had found that employees laid off for more than 35 weeks could concurrently elect to receive severance pay under the Employment Standards Act, 2000 and claim retirement benefits under the collective agreement.

The Divisional Court applied the reasonableness standard of review and upheld the arbitrator's decision, finding her interpretation of the collective agreement and treatment of arbitral jurisprudence to be intelligible, transparent, and justified.

The application was dismissed.

The applicant sought judicial review of an arbitrator's decision.

At the hearing, the applicant attempted to raise new arguments and issues that were not raised before the arbitrator.

Citing the Supreme Court of Canada's decision in Alberta Teachers' Association, the Divisional Court refused to consider the new issues, noting the prejudice to the respondent and the loss of the specialized tribunal's views.

The court concluded it lacked jurisdiction to remit the matter back to the arbitrator without consent, which the respondent refused.

The court offered the applicant the option to withdraw the application without a determination on the merits.

On consent, the application was withdrawn, and the applicant was ordered to pay $3,500 in costs to the respondent.

The appellants, plaintiffs in a certified class action alleging abuse at a residential school, appealed a motion judge's order granting the respondents leave to issue third-party claims for contribution and indemnity against the students' parents and guardians.

The appellants argued that the third-party claims were legally untenable because they had limited their claims to the several liability of the respondents.

The Divisional Court allowed the appeal, applying the Court of Appeal's decision in Taylor v. Canada, holding that where a plaintiff limits their negligence claim to damages caused solely by the defendant, there is no right to claim contribution and indemnity.

Furthermore, liability for breach of fiduciary duty is not subject to apportionment.

The order permitting the third-party claims was set aside.

The applicant, a midwife, brought a motion for an order requiring the College of Midwives of Ontario to file the complete record of proceedings relating to an Inquiries, Complaints and Reports Committee (ICRC) decision about another midwife.

The applicant had made a mandatory report about the other midwife, and the ICRC decided to take no action but made critical comments about the applicant's report.

The applicant sought the record for her application for judicial review.

The Divisional Court dismissed the motion, finding that the ICRC did not exercise a statutory power of decision with respect to the applicant, and that the College was prohibited from producing the record under the confidentiality provisions of the Regulated Health Professions Act.

The landlord appealed a Landlord and Tenant Board decision ordering it to pay the tenant $11,000 for disposed property and $3,000 for stress damages following an eviction.

The Divisional Court upheld the property damages, finding ample evidence that the landlord breached its obligation under s. 41(3) of the Residential Tenancies Act, 2006 to make the tenant's possessions available within 72 hours.

However, the court set aside the $3,000 award for stress damages, as it was not claimed by the tenant and awarding it without notice breached procedural fairness.

The respondent, IIROC, brought a motion to quash an application for judicial review commenced by the applicants, an investment dealer and its CEO.

The applicants sought to quash a notice of hearing and other disciplinary steps taken by IIROC.

The Divisional Court granted the motion to quash, finding it plain and obvious that the application could not succeed.

The court held that it lacked jurisdiction under section 2(1) of the Judicial Review Procedure Act because IIROC's disciplinary powers arise from contract, not statute or public authority.

Furthermore, the application was premature as the issues should be determined at first instance by the IIROC Hearing Panel.

The appellant owner appealed a trial judgment awarding the respondent contractor $62,983.84 for unpaid construction work.

The appellant argued the trial judge erred by refusing to allow documentary evidence for its counterclaim for lost rental income and by finding the contract was a unit price contract rather than a fixed price contract.

The Divisional Court dismissed the appeal, finding the appellant had not sought to introduce the documentary evidence at trial and the trial judge properly interpreted the contract documents.

The judgment was varied only to add post-judgment interest.

The appellant appealed an order finding him estopped from objecting to legal accounts paid by the Estate Trustee.

The appellant argued the motions judge erred by determining the substantive issue of estoppel during a first appearance for a motion for directions, depriving him of the opportunity to present evidence.

The Divisional Court agreed, finding the motions judge should have resolved the conflict respecting the draft orders giving directions rather than deciding the substantive issue.

The appeal was allowed, the order was set aside, and the matter was referred back to the Estates List.

The appellants appealed a trial judgment finding them totally liable for a rear-end motor vehicle collision.

The trial judge had purported to determine liability by taking the appellants' evidence at its highest, without resolving conflicting testimony regarding the respondent's use of turn signals and vehicle positioning.

The Court of Appeal found that the trial judge failed to make necessary factual findings and misapplied the law regarding the onus on a following driver and contributory negligence.

The appeal was allowed and a new trial was ordered.

The moving party union appealed a decision of a Claims Officer in a CCAA proceeding.

The Claims Officer had determined that a motion in annulment brought by the union in Quebec regarding an arbitration award for lockout damages was not meritorious.

The Superior Court of Justice dismissed the appeal, finding that the Claims Officer applied the correct standard and made no error in principle or law in concluding that the arbitrator had properly exercised his jurisdiction.