P. Theodore Matlow

The respondent purchased a travel package but cancelled it due to her husband's illness.

After failing to obtain a refund from the travel wholesaler and her cancellation insurance, she applied to the Travel Industry Compensation Fund.

The Board denied her claim, but the Licence Appeal Tribunal allowed her appeal.

The Travel Industry Council of Ontario appealed to the Divisional Court.

The Court allowed the appeal, finding that under s. 57(3) 3 of O. Reg. 26/05, a customer is not entitled to reimbursement if the travel services were available but not received because of the customer's own act of cancellation.

The Tribunal's decision was set aside and the Board's decision denying the claim was restored.

The appellant appealed a trial judgment ordering him to return $41,743.15 paid by the respondent under a written agreement for a leasehold interest.

The respondent had defaulted on payments, prompting the appellant to cancel the contract and sell the interest to a third party.

The trial judge characterized the agreement as a purchase and sale without a forfeiture clause and ordered the return of the funds.

The Divisional Court allowed the appeal and ordered a new trial, finding that the trial judge committed an error of law by failing to consider the appellant's evidence that the contract was a 'rent to own' agreement where payments were non-refundable rent.

The appellant appealed a decision of the Criminal Injuries Compensation Board dismissing her claim for compensation for mental shock suffered after her home was destroyed by arson.

The Divisional Court allowed the appeal, finding that the Board erred in law by treating the appellant as a secondary victim and applying the wrong criteria to deny her claim.

The Court held that the appellant was a primary victim and remitted the matter for a new hearing before a differently constituted Board.

The parents appealed a summary judgment order making their child a Crown ward without access for the purpose of adoption.

The child had been in care for her entire life (23 months) and the statutory time limit for temporary wardship had lapsed.

The Divisional Court upheld the motion judge's finding that there was no genuine issue for trial regarding the child's best interests, noting the father's ongoing substance abuse and criminal issues, and the mother's lack of insight into the risk he posed.

The appeal was dismissed.

The appellant mother sued her son and daughter-in-law for repayment of a $52,000 loan, which she claimed was payable upon her turning 65 or retiring.

The respondents argued the money was a gift or, alternatively, a demand loan that was statute-barred.

The motion judge granted summary judgment dismissing the action.

On appeal, the Divisional Court found the motion judge made palpable and overriding errors by weighing evidence, evaluating credibility, and drawing adverse inferences without considering whether a trial was necessary in the interests of justice.

The appeal was allowed and the summary judgment set aside.

The appellant appealed a costs order of $345,733.53 awarded against it following a partially abandoned summary judgment motion in a wrongful dismissal action.

The Divisional Court found that the motions judge erred in principle by failing to step back and assess whether the costs claimed were fair and reasonable, effectively rubber-stamping the respondent's costs outlines.

The Court allowed the appeal, finding the hours claimed excessive and duplicative, and reduced the costs award for the summary judgment motion to $145,000.

The defendants appealed an interlocutory order requiring them to post $100,000 in security for costs or have their Statement of Defence and Counterclaim struck.

The primary issue was whether Rule 56.01(1)(c) conflicts with section 12 of the Libel and Slander Act.

The Divisional Court found no conflict, as the rule and the statute rely on different criteria.

However, the court varied the order, holding that a party should not be required to post security merely to defend itself.

The order was amended so that only the defendants' counterclaim would be struck if security was not posted.

The defendant appealed an order dismissing its motion to declare the plaintiff's construction liens expired.

The motion judge had ruled that the plaintiff's Reply and the defendant's Amended Statement of Defence were nullities, and that pleadings were closed, allowing the plaintiff to set the action down for trial within the statutory deadline.

The Divisional Court dismissed the appeal for lack of jurisdiction, finding that the motion judge's orders did not finally determine any substantive rights and were therefore interlocutory.

Under section 71(3)(b) of the Construction Lien Act, no appeal lies from an interlocutory order.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario finding that it had permitted drunkenness on its premises contrary to s. 45(1) of Regulation 719 under the Liquor Licence Act.

The Divisional Court allowed the appeal, finding that the Board erred in law by concluding the appellant permitted drunkenness without any evidence of how long the patron had been in an intoxicated state, which was necessary to determine if the appellant failed to remove the patron within a reasonable period of time.

The appellant tenant appealed a Landlord and Tenant Board decision dismissing her application for the return of a rent deposit.

After signing a rental application and paying a deposit, the tenant unilaterally decided not to sign the tenancy agreement or take possession of the unit.

The Divisional Court held that s. 107(1) of the Residential Tenancies Act, which requires a landlord to repay a rent deposit if vacant possession is 'not given', applies only when the landlord refuses or is unable to provide the premises.

Because the tenant's own repudiation prevented her from taking possession, she was not entitled to the return of the deposit.

The appeal was dismissed.

The respondent College sought costs on a substantial indemnity basis or personally against the applicant's counsel for alleging bad faith and misrepresentation.

The Divisional Court found that while the respondent's factum contained an inaccuracy, there was no intention to mislead.

The court declined to award substantial indemnity costs or costs against counsel personally, noting that while counsel overreacted, the conduct did not warrant such sanctions.

Costs were awarded to the respondent on a partial indemnity basis in the amount of $15,000 all inclusive.

The appellant appealed a trial decision finding a valid agreement to split settlement funds 50/50 with the respondents.

The Divisional Court dismissed the appeal, holding that the trial judge did not err in finding a valid agreement, implying a reasonable term for the split, or rejecting the argument that the agreement was unenforceable for illegality due to an undertaking given to the insurer.

Costs of $6,000 were awarded to the respondents.

The applicant, a physician, sought judicial review of the decision of the Registrar of the College of Physicians and Surgeons of Ontario to appoint investigators to investigate his practice.

The investigations arose from resolutions of the Quality Assurance Committee and a patient complaint.

The applicant refused to comply and raised constitutional and procedural fairness issues.

The Divisional Court dismissed the application for judicial review on the grounds of prematurity, holding that administrative proceedings should run their full course before judicial intervention, absent exceptional circumstances.

The respondent was awarded costs of the appeal fixed at $8,000 all-inclusive.

The court substantially reduced the quantum claimed because both parties failed to address the narrow single issue upon which the appeal was ultimately disposed, which was raised by the panel after the hearing.

A minor deduction was also made for potentially unrecoverable travel disbursements.

The applicant sought an order of mandamus requiring the municipal council to hold a meeting pursuant to section 357(5) of the Municipal Act to hear representations regarding a significant tax overcharge caused by a clerical error.

The municipality had refused the request, asserting it lacked authority and that statutory deadlines had passed.

The Divisional Court found that the municipality erred in law by declining its jurisdiction and that the application was made within the statutory timeframe.

The court granted the application and issued an order of mandamus compelling the council to hold the requested meeting and make a decision.

The Municipal Property Assessment Corporation appealed a decision declaring that properties leased by the Crown to non-profit Harbour Authorities for nominal rent were exempt from property taxation.

MPAC argued the Harbour Authorities paid valuable consideration through services and maintenance obligations.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the services did not constitute a profit to the Crown.

Furthermore, the Court held that the Harbour Authorities shared an identity of patrimony with the Crown, entitling them to the same tax exemption.

The appellant employer appealed a trial judgment finding it liable for negligent misrepresentation after the respondent signed a spousal pension waiver without reading it.

The trial judge found the waiver form was confusing and awarded damages.

On appeal, the majority of the Divisional Court upheld the trial judgment, finding that the waiver form used by the employer differed substantially from the form approved by the Superintendent of Financial Services, violating the mandatory requirements of section 46(1) of the Pension Benefits Act.

The appeal was dismissed.

The tenant appealed two orders of the Landlord and Tenant Board which dismissed his applications on the basis that the Board lacked jurisdiction.

The Board had found that the tenancy was exempt from the Residential Tenancies Act under section 5(i) because the landlord either moved into the shared accommodation after the tenancy began or intended to do so from the start.

The Divisional Court allowed the appeal, holding that for the section 5(i) exemption to apply, the landlord must actually live in the building at the time the tenancy agreement is entered into.

The matter was remitted to the Board for a new hearing.

Following an appeal regarding an equalization award where success was divided, the respondents sought costs of the appeal.

The Divisional Court noted that the appellants were successful on two of the four issues, reducing their required payment by 25%.

Given the divided success and the significant time spent on a tax issue where the appellants were unsuccessful, the court exercised its discretion to make no award of costs.

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.