Shaun O'Brien

The union sought judicial review of an arbitrator's decision dismissing a grievance over the assignment of weekend cleanup work.

The employer had begun assigning students to perform weekend cleanup at straight time instead of offering it to regular employees as overtime, despite a Letter of Understanding (LOU) regulating overtime distribution.

The Divisional Court held that the arbitrator's decision was unreasonable because it failed to address the central issue of the LOU's explicit language governing the distribution of weekend overtime to volunteers by seniority.

The matter was remitted to a different arbitrator.

The appellant was denied statutory accident benefits by his insurer and his claim was dismissed by the Licence Appeal Tribunal.

His request for reconsideration by the same adjudicator was denied.

On appeal, he sought to introduce fresh evidence and argued the adjudicator erred in rejecting his uncontradicted medical evidence and that reconsidering her own decision breached procedural fairness.

The Divisional Court dismissed the appeal and the motion for fresh evidence, finding no error of law in the Tribunal's evaluation of the evidence and no breach of procedural fairness.

The applicant sought judicial review to quash a zoning by-law amendment that permitted a Battery Energy Storage System (BESS) on rural lands, alleging the City of Ottawa acted in bad faith and failed to follow required procedures.

The Divisional Court granted the applicant public interest standing and exercised its discretion to hear the application despite the availability of an alternative statutory remedy.

On the merits, the court dismissed the application, finding no evidence of bad faith or procedural unfairness in the City's sequencing of approvals, suspension of procedural rules, or reliance on the submitted technical studies.

The applicant sought judicial review of two interim decisions of the Human Rights Tribunal of Ontario regarding his allegations of discrimination against the respondent College.

The court issued a notice under Rule 2.1 of the Rules of Civil Procedure, raising concerns that the application was premature because the Tribunal process was ongoing.

Despite the applicant's submissions alleging bias and procedural flaws, the court held that absent exceptional circumstances, it should not interfere in ongoing administrative proceedings.

The application was dismissed as patently premature.

The applicant sought judicial review of a decision by the Complaints Director of the Law Enforcement Complaints Agency, which confirmed an investigator's finding that his complaint against four police officers was unsubstantiated.

The applicant alleged the officers unlawfully demanded identification, unlawfully detained him, and used abusive language.

The Divisional Court allowed the application, finding the Director's decision unreasonable because it failed to adequately address the applicant's central arguments regarding the lawfulness of the demand for identification and detention under the Trespass to Property Act, misapprehended video evidence, and failed to address allegations of bias against the investigator.

The matter was remitted for redetermination.

The tenants appealed and sought judicial review of two Landlord and Tenant Board decisions terminating their tenancy for persistent late payment of rent and unauthorized subletting, and dismissing their rent abatement application.

The tenants had engaged in a prolonged rent strike and vacated the unit while allowing unauthorized occupants to live there.

The Divisional Court dismissed the appeals and applications, holding that persistent non-payment of rent constitutes persistent late payment under s. 58(1)1 of the Residential Tenancies Act.

The court found no errors of law or unreasonableness in the Board's findings regarding the transfer of occupancy, the refusal to grant relief from eviction, or the dismissal of the abatement claims.

The applicants sought judicial review to quash a municipal by-law authorizing the sale of a surplus strip of land to an adjacent property owner, and moved to review a single judge's decision denying leave to obtain a certificate of pending litigation.

The Divisional Court declined to consider the merits of the judicial review application, finding the sale was a private transaction of limited public character, the applicants had delayed in pursuing their interest, and the transaction had already closed with a bona fide purchaser for value.

The court also dismissed the motion for a certificate of pending litigation, as the applicants could not establish a triable interest in the land.

The applicant sought judicial review of WSIAT decisions that dismissed his appeals regarding the quantification of his benefits for a workplace knee injury.

The applicant raised numerous procedural and substantive objections, including allegations of Charter and human rights violations, bias, and unreasonable findings of fact.

The Divisional Court applied the reasonableness standard and dismissed the application, finding that the WSIAT's procedures were fair, its jurisdictional findings were correct, and its factual determinations were reasonable given the evidence and the applicant's refusal to participate in an oral hearing.

The appellant mother appealed a motion judge's dismissal of her motion to strike or stay the respondent father's motion to change a final consent order.

The father was in significant arrears for child support, spousal support, and an equalization payment.

The Divisional Court found that the motion judge erred in law by misstating the three-part test under Rule 1(8) of the Family Law Rules, incorrectly requiring the moving party to prove exceptional circumstances to sanction the non-complying party.

The appeal was allowed, and the father was ordered to pay the arrears owing as of March 1, 2020, as a condition of continuing with his motion to change.

The applicant, a PhD student, was withdrawn from her program after receiving two unsatisfactory progress reports.

She appealed the withdrawal to the Faculty and then to the Senate Appeals Committee, both of which dismissed her appeals.

She sought judicial review, arguing procedural unfairness and unreasonableness.

The Divisional Court dismissed the application, finding no manifest unfairness in the university's robust evaluation process and holding that the Senate Appeals Committee decision was reasonable and sufficiently grappled with the central issues.

The tenant appealed a Landlord and Tenant Board eviction order for rent arrears.

A case management judge ordered the tenant to pay ongoing rent and a portion of the arrears to maintain the statutory stay of eviction pending the appeal.

The tenant failed to pay and brought a motion to review the interim payment order under s. 21(5) of the Courts of Justice Act, along with a motion to stay the interim order pending the review.

The Divisional Court dismissed the stay motion, finding no serious issue to be heard and that the balance of convenience heavily favoured the landlord due to the tenant's long-term failure to pay rent.

The Court lifted the stay of the eviction order and directed immediate enforcement, emphasizing that the appeal process cannot be used to obtain rent-free living.

A former municipal councillor sought judicial review of an integrity commissioner’s report and council decision imposing a 90-day suspension of remuneration for breaching a municipal COVID-19 vaccination policy and refusing to disclose vaccination status.

The applicant argued, for the first time on judicial review, that the decision infringed freedom of expression by punishing her right not to speak.

The Divisional Court held that the commissioner had sufficiently considered the relevant Charter values through the privacy, autonomy, and silence arguments actually advanced, and had reasonably balanced those values against the statutory objectives of enforcing the code of conduct and maintaining a workable vaccination policy.

The court also held that it was reasonable to interpret the policy as requiring councillors to disclose vaccination status and that the maximum penalty was reasonable.

The application was dismissed with partial indemnity costs of $7,500.

The applicants sought judicial review of a Financial Services Tribunal decision that refused to renew their mortgage broker licences and imposed $70,000 in administrative penalties.

The Divisional Court declined to review the licensing decision, finding that the applicants had an adequate alternative remedy through a statutory right of appeal, which they had failed to perfect.

Applying a reasonableness standard, the court upheld the administrative penalties, concluding that the Tribunal's findings regarding the applicants' failure to cooperate and the economic benefit derived from delaying the proceedings were amply supported by the evidence.

The application for judicial review was dismissed.

The applicants sought judicial review of an administrative directive redirecting frozen racing funds to the benefit of the Ontario racing industry rather than re-distributing them race by race.

The court held that the applicants had no remaining right or interest to challenge the directive because the earlier forfeiture order had finally disposed of the entire frozen account and any argument that some funds were from non-purse sources should have been raised in the original proceedings.

The court also held that judicial review is discretionary and declined relief because the application was perfected more than six years after commencement, the delay was excessive and inadequately explained, and prejudice was presumed.

The application was dismissed with agreed costs.

The appellants, two related home builders, appealed a License Appeal Tribunal (LAT) decision upholding Tarion Warranty Corporation's refusal and revocation of their applications for enrollment in the new home warranty plan.

The LAT found that the builders had a history of poor workmanship, warranty breaches, and failure to indemnify Tarion.

On appeal, the Divisional Court held that the LAT correctly interpreted 'conduct' under s. 10.3(4) of the Ontario New Home Warranties Plan Act to include construction and warranty service competence.

The Court found no palpable and overriding errors in the LAT's factual findings and concluded the LAT proceedings were procedurally fair.

The appeal was dismissed with costs.

The appellants sought to overturn Tribunal decisions refusing production of documents for abuse of process stay motions and denying a stay of securities enforcement proceedings arising from unlawful disclosure of compelled examination evidence in related receivership proceedings.

Applying appellate standards of review and the abuse of process framework, the court held that the Tribunal did not err in requiring a threshold showing for disclosure, in refusing to adopt the criminal-law summary dismissal threshold from Haevischer, or in concluding there was no tenable abuse of process case warranting disclosure.

The court further held that the unlawful disclosure, while serious, did not establish prejudice to trial fairness or to the integrity of the justice system that would be manifested, perpetuated, or aggravated by continuing the enforcement hearing, and that the grave public interest in adjudicating the securities fraud allegations strongly weighed against a stay.

One sanction issue succeeded only to correct the joint and several disgorgement amount from $2 million to $1.965 million.

The applicant sought judicial review of Board decisions dismissing his complaint that the union breached its duty of fair representation in withdrawing a grievance over his dismissal for alleged benefits fraud.

Applying reasonableness review, the court held the Board reasonably concluded that the union was required to give fair, objective and due consideration to the grievance, not to conduct an exhaustive investigation or arbitrate on demand.

The court also upheld the Board’s rejection of alleged conflict, bias, and human rights arguments that were either not properly pleaded or unsupported by material facts.

The Board’s reasons were found to be sufficient, coherent, and responsive to the record.

The application was dismissed without costs.

The applicant sought judicial review of two Human Rights Tribunal of Ontario (HRTO) decisions that dismissed his discrimination application for having no reasonable prospect of success.

The applicant alleged his former employer failed to accommodate his workplace knee injury and terminated him.

The HRTO found the applicant had not provided medical evidence or communicated his availability for months, leading the employer to deem his employment abandoned.

The Divisional Court dismissed the application for judicial review, finding the HRTO's decisions were reasonable, intelligible, and justified based on the record.

The appellant landlords appealed an order of the Landlord and Tenant Board finding they illegally collected and retained money from the respondent tenant.

The parties had agreed to terminate the lease early, and the landlords retained a $4,900 payment characterized as a penalty, along with a pet deposit, key deposit, and excess rent.

The Divisional Court dismissed the appeal, holding that the Board correctly found the payments were prohibited under the Residential Tenancies Act, 2006, despite the parties' settlement agreement.

The applicant, an American web-based videoconference provider, sought judicial review of Ontario Health's refusal to verify its platform as a 'Verified Virtual Visit Solution', which prevented Ontario physicians from billing OHIP for services rendered using the platform.

Ontario Health required the applicant to store data in Canada, asserting the platform collected personal health information.

The Divisional Court held that the data residency requirement and the related OHIP payment rule were not ultra vires.

While the court found Ontario Health's conclusion that the applicant collected personal health information to be unreasonable, it ultimately dismissed the application because the applicant failed to meet other mandatory technical and privacy assessment requirements.