P. Theodore Matlow

The appellant municipality appealed the dismissal of its motion for summary judgment.

The municipality argued the plaintiffs' action was statute-barred under s. 44(8)(b) of the Municipal Act, 2001, claiming the vehicle collided with a pole on an 'untravelled portion of a highway' (a median).

The Divisional Court dismissed the appeal, agreeing with the motion judge that determining whether the median was an untravelled portion of the highway required a trial to fully appreciate the evidence regarding reasonably foreseeable vehicular and pedestrian use.

The appellant physician appealed the dismissal of his summary judgment motion in a defamation action brought by the respondent physician.

The action arose from an email sent by the appellant to the Minister of Health and the College of Physicians and Surgeons criticizing the respondent's medical practices regarding multiple sclerosis treatments.

The appellant argued the email was protected by absolute or qualified privilege.

The Divisional Court upheld the motion judge's decision, finding that the application of absolute and qualified privilege, as well as the presence of malice, raised genuine issues requiring a full factual record at trial.

The appeal was dismissed.

The plaintiffs appealed a jury verdict that dismissed their personal injury action arising from a motor vehicle accident in a parking lot and assessed their damages at zero.

The plaintiffs argued the trial judge erred by failing to instruct the jury on the Highway Traffic Act and that the zero damages assessment was perverse.

The Divisional Court dismissed the appeal, finding the jury charge on the standard of care was correct and sufficient, and that the jury's assessment of damages was open to them based on the competing medical evidence.

The plaintiff appealed an order vacating the setting down for trial of its construction lien action.

The motion judge had held that because the plaintiff had not delivered a defence to counterclaim when it set the action down, the pleadings were not closed, rendering the setting down invalid and causing the lien to expire under s. 37 of the Construction Lien Act.

The Divisional Court allowed the appeal, holding that the failure to include the defence to counterclaim in the trial record was an irregularity that could be cured under Rule 2.01 by granting leave to file an amended trial record, rather than a nullity that resulted in the expiry of the lien.

The tenant appealed an eviction order of the Landlord and Tenant Board.

The Divisional Court found that the Board applied an incorrect or incomplete legal test by only considering the discretionary provision under s. 83(1) of the Residential Tenancies Act, 2006, and failing to consider the mandatory provision under s. 83(3).

The Board had explicitly found that the landlord substantially interfered with the tenant's reasonable enjoyment, which could constitute a serious breach under s. 83(3).

The appeal was allowed and the matter remitted to the same board member for reconsideration.

The landlord appealed an order of the Landlord and Tenant Board finding that he gave a notice of termination for personal use in bad faith, and a review order refusing to admit new evidence regarding the tenant's damages.

The Divisional Court upheld the finding of bad faith, concluding there was a reasonable basis in the evidence for the Member's decision.

However, the Court found the Reviewing Member erred in excluding new evidence about the tenant vacating her new premises, as the evidence was not reasonably discoverable prior to the hearing.

The appeal was allowed in part, and the issue of damages was remitted to a differently constituted panel.

Following a prior contempt-related order requiring the defendants to make a stipulated payment into court, the defendants failed to comply and provided no explanation or request for an extension.

The court considered the appropriate sanction for the ongoing non-compliance.

Concluding that the defendants’ conduct was an attempt to disrupt and undermine the proceedings, the court struck the defendants’ statement of defence and counterclaim without leave to amend.

The plaintiffs were permitted to note the defendants in default and move for judgment.

Costs were reserved to be determined together with any motion for judgment.

The defendants brought a motion seeking an order that the presiding judge recuse himself and declare a mistrial in an ongoing civil trial.

The motion relied primarily on language used in an earlier endorsement granting a Mareva injunction that referred to a “fraudulent scheme.” The court held that the language was intended only to reflect the existence of strong prima facie evidence and did not constitute a final finding of fraud.

Applying the objective test for reasonable apprehension of bias, the court concluded that no informed person would believe the judge had conducted the trial unfairly or would fail to remain impartial.

The motion for recusal and mistrial was dismissed.

The appellant gas station owner suffered business interruption and equipment damage when a cracked fill-pipe allowed water to contaminate its underground fuel storage tank.

The respondent insurer denied coverage under an all-risks policy, arguing the loss was not fortuitous.

At trial, the judge granted the insurer's motion for non-suit, finding the appellant failed to prove the exact cause of the crack via expert evidence.

On appeal, the Divisional Court held the trial judge erred in law.

The appellant only needed to adduce evidence that the loss was not expected in the ordinary course of business, which it did through testimony from an experienced contractor and the owner.

The appeal was allowed and judgment was entered for the appellant.

The appellant, Municipal Property Assessment Corporation, appealed a decision exempting certain machinery and equipment at hydro-electric generating stations from real property taxation under the Assessment Act.

The appellant argued the application judge erred by applying the rejected 'integration test' to characterize penstocks and surge tanks as equipment rather than structures, and by finding that maintenance and safety items were used for producing electric power.

The Divisional Court dismissed the appeal, finding the application judge correctly applied the holistic approach from Metals Alloys and Nabisco, and correctly concluded that items need not be directly involved in the transformation of water to electricity to qualify for the exemption.

The successful appellant sought costs of the trial and the appeal.

The respondents argued that no trial costs should be awarded because the judgment amount fell within the Small Claims Court jurisdiction.

The Divisional Court rejected this argument, noting the Small Claims Court limit was $10,000 when the claim was issued, the defendants had launched a $65,000 counterclaim, and the plaintiff had made a reasonable early offer to settle for $15,000.

Applying the principle of proportionality, the court awarded the appellant trial costs fixed at $25,000 and appeal costs fixed at $10,000.

The plaintiffs sought continuation of a Mareva injunction against a defendant alleged to be holding assets on behalf of other defendants to shield them from potential judgment enforcement.

The court found a strong prima facie case that the defendant remained in possession and control of substantial assets belonging to related defendants and that those assets were being concealed to avoid seizure.

The court also found a high likelihood that the defendants would continue to dissipate or conceal assets without court intervention.

Credibility concerns were raised regarding the evidence of key defendants.

The Mareva injunction was continued until final disposition of the action.

The plaintiffs brought a motion seeking contempt findings against the defendants for failing to comply with multiple court orders issued during a prolonged civil trial.

The court found beyond a reasonable doubt that the defendants had wilfully and repeatedly breached clear and unambiguous orders, including a prior order requiring compliance with all outstanding trial directions.

Evidence demonstrated a deliberate strategy to delay the proceedings and obstruct the plaintiffs’ ability to advance the action.

Rather than striking the defence immediately, the court ordered the defendants to pay $35,000 into court as security for costs associated with motions and wasted trial time.

The court emphasized the need to impose sanctions to protect the administration of justice and prevent ongoing delay tactics.

The appellant fire chief appealed an order referring a fire safety inspection dispute back to the Office of the Fire Marshal.

The original inspection order required the installation of a sprinkler system.

The Fire Marshal upheld the order but allowed the respondents to submit alternative measures to the fire department for approval.

The fire department rejected the alternatives, and the appellant sought an order directing compliance.

The application judge found the Fire Marshal improperly delegated the final decision to the fire department without a mechanism for review, and referred the matter back to the Fire Marshal.

The Divisional Court dismissed the appeal, agreeing that the delegation was improper and the referral was a sensible exercise of discretion under s. 32 of the Fire Protection and Prevention Act.

The self-represented applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that terminated his supplemental benefits under s. 147(4) of the Workers' Compensation Act and replaced them with benefits under s. 147(2).

The applicant argued the Tribunal lacked jurisdiction to terminate the benefits and denied him procedural fairness by failing to provide notice or warn him of the downside risk of his appeal.

The Divisional Court dismissed the application, finding the Tribunal reasonably interpreted its home statute in determining the two benefit provisions are mutually exclusive.

The Court also found no breach of procedural fairness, as the applicant had initiated the appeal requesting the change in benefits.

The appellant registered a construction lien on a property owned by his estranged wife, which was subject to mortgages held by the respondents.

The respondent mortgagees successfully moved to discharge the lien under section 47 of the Construction Lien Act on the basis that it was registered in bad faith.

On appeal, the appellant argued the motion judge erred by not applying the summary judgment test under Rule 20.

The Divisional Court dismissed the appeal, holding that the motion judge properly exercised his broad discretion under section 47 and was not required to apply Rule 20 since the motion did not seek to dismiss the action.

The applicant, a licensed standardbred trainer, sought judicial review of a decision by the Ontario Racing Commission panel that found him guilty of animal abuse and imposed penalties including a 90-day suspension and a fine.

The panel had conducted a trial de novo following a previous successful judicial review by the applicant.

The Divisional Court dismissed the application, finding that the panel applied the correct standard of proof and that its decision, based on circumstantial evidence, was reasonable.

The appellant appealed a motion judge's order enforcing a settlement of her claims for statutory accident benefits against her automobile insurer.

The appellant had accepted an offer to settle but later rescinded it, arguing the offer did not qualify as a Rule 49 offer and thus was subject to the rescission provisions of the Automobile Insurance Regulation.

The Divisional Court agreed, finding the offer required the appellant to release future claims not included in her statement of claim, meaning it was not a valid Rule 49 offer.

The appeal was allowed and the judgment enforcing the settlement was set aside.

The appellant purchaser entered into an agreement to buy a townhouse but failed to close the transaction due to financial difficulties.

The vendor retained the $35,000 paid by the appellant as a forfeited deposit.

The appellant sued for the return of the funds, claiming relief from forfeiture, but the trial judge dismissed the action.

On appeal, the Divisional Court upheld the trial judge's finding that the appellant did not act reasonably and was therefore not entitled to relief from forfeiture.

The appeal was dismissed, with a dissenting opinion arguing that the payments were not explicitly defined as a deposit in the main agreement.

The plaintiff appealed the dismissal of his personal injury action following a motor vehicle accident.

The trial judge found the plaintiff suffered a permanent serious impairment but dismissed the action because the plaintiff failed to provide independent evidence corroborating his change in function under s. 4.3(5) of O. Reg. 461/96.

The Divisional Court allowed the appeal, holding that s. 4.3(5) does not preclude a plaintiff from providing the corroborating evidence.

The court found that interpreting the provision to require independent corroboration would disproportionately impact vulnerable groups and be inconsistent with Charter equality values.