P. Theodore Matlow

Following the dismissal of the plaintiff's motion to vary a judgment in a Small Claims Court appeal, the court received written submissions on costs.

The court awarded costs of the motion to the Ernst and Young defendants, fixed at $1,000 all-inclusive.

The appellant father appealed an order requiring him to pay retroactive base child support and proportional childcare expenses.

He sought to introduce fresh evidence of an updated Family Responsibility Office statement showing a $5,802 overpayment.

The Divisional Court admitted the fresh evidence to ensure a just outcome, despite the appellant's lack of due diligence.

The court dismissed the substantive appeal, finding no error in the motion judge's decision to award retroactive support, but corrected a mathematical error in the calculation of the respondent mother's income, reducing the appellant's childcare expense arrears.

The appellant was credited for the overpayment.

The appellants purchased a new home and made claims under the Ontario New Home Warranties Plan Act for construction defects.

Tarion denied some claims, and the appellants appealed to the Licence Appeal Tribunal.

During the appeal process, the appellants defaulted on their mortgage, and the home was sold under power of sale.

The Tribunal dismissed the appeal, finding that the appellants lost standing to pursue the warranty claims when they ceased to own the home.

The Divisional Court upheld the Tribunal's decision, confirming that the statutory warranty runs with the land and that the appellants' claim for damages for diminution in value constituted excluded secondary damage.

The City of Ottawa appealed an Ontario Municipal Board (OMB) decision that allowed an official plan amendment proposed by the respondent, which the City Council had previously refused.

The central issue was whether the OMB erred in law by failing to 'have regard to' the Council's decision under s. 2.1 of the Planning Act.

The Divisional Court held that the OMB is not required to apply a highly deferential standard of review to Council decisions, but must carefully scrutinize and consider them.

Finding that the OMB had properly analyzed and addressed each of the Council's reasons for refusal, the majority dismissed the appeal.

The appellants appealed a trial judgment that determined the equalization payment required to separate a family business under a consent order.

The Divisional Court upheld the trial judge's findings on the valuation of the businesses, the tax treatment of parked debt under the Income Tax Act, and the scope of the issues tried.

However, the court allowed the appeal in part, finding the trial judge misapprehended evidence regarding an agreement to pay interest on unequal shareholder loans, resulting in a $108,500 credit to the appellants.

The appellant appealed a motion judge's decision dismissing her motion to vary child support and declining to impute additional income to the respondent.

She argued the motion judge erred by adjourning the hearing to allow the self-represented respondent to provide further medical evidence regarding his back injury, and by relying on that evidence even though it did not strictly comply with the judge's directions.

The Divisional Court majority dismissed the appeal, finding no error of law or breach of procedural fairness, as the appellant was given the opportunity to cross-examine the respondent or file responding evidence but chose not to do so.

A dissenting judge would have allowed the appeal on the basis that the medical evidence did not meet the motion judge's criteria and its use was unfair.

The appellant hospital appealed a partial summary judgment awarding the respondent architectural firm over $1 million in a construction lien action.

The motion judge had relied on an 'admission' letter sent by the hospital following a pre-trial conference.

The Divisional Court allowed the appeal and set aside the summary judgment, finding that the motion judge erred by relying on the pre-trial communication contrary to Rule 50.03 of the Rules of Civil Procedure.

The Court also found that affidavit evidence from a peer-review architect raised a genuine issue for trial regarding the completion of the contract and the validity of the invoices.

The appellants appealed an order dismissing their motion to exclude the medical report and evidence of a defence expert, Dr. Bednar, prior to trial.

The motions judge had declined to rule on the admissibility, holding that such a determination should be reserved for the trial judge.

The Divisional Court dismissed the appeal, with the majority finding that it would be extremely rare for a motions judge to be in an equal or better position than the trial judge to rule on the exclusion of expert evidence.

Matlow J. dissented, arguing the motions judge had jurisdiction under Rule 37.02(1) and should have considered the merits.

The appellant licensee appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario finding that it breached s. 45(1) of the Liquor Licence Act by permitting drunkenness on its premises, and imposing a 10-day licence suspension.

The Divisional Court dismissed the appeal, holding that s. 45(1) applies to anyone on the premises, not just patrons, and that due diligence is not an available defence in this regulatory context.

The majority found the Board's factual findings and the penalty reasonable.

A dissenting judge would have allowed the appeal on the basis that the Board failed to properly analyze whether the licensee 'permitted' the drunkenness.

Following the dismissal of the appellant's appeal, the successful respondent sought partial indemnity costs of $13,395 for fees and $559.58 for disbursements.

The appellant objected to the hourly rates claimed for senior counsel and a student.

The Divisional Court reduced the hourly rates to $275 for senior counsel and $60 for the student, allowed the disbursements, and fixed total costs at $9,500 inclusive of disbursements plus GST.

The appellant appealed an order dismissing its motion for judgment on an alleged settlement.

The respondent's counsel had made a settlement offer based on instructions from an individual who managed the recreation centre but lacked authority to settle the litigation.

The appellant accepted the offer.

The motion judge found that the settlement was concluded by mistake, as the respondent never authorized the offer, and exercised his discretion not to enforce it.

The Divisional Court upheld the decision, finding no error in the motion judge's appreciation of the evidence or application of the legal principles regarding mistake and agency.

Following a successful appeal by the appellant against the Registrar, Motor Vehicle Dealers Act, the court considered written submissions on costs.

The respondent argued that the transcript costs should be disallowed because it had conceded the main legal issue.

The court rejected this argument, finding the facts remained central to the respondent's alternative position.

Applying the principle that costs must be fair and reasonable, the court awarded the appellant partial indemnity costs fixed at $9,733.86 plus GST.

The appellant hospital appealed an order declaring that the respondent and other 'Annual Members' held their memberships for a full 12-month period and compelling the hospital to hold a requisitioned special meeting.

The hospital argued that under its by-laws, annual memberships expired on July 31 regardless of when they were approved, which in practice resulted in terms of only a few months.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the hospital's interpretation was unreasonable and unfair, and that 'annual' should be given its plain meaning of a full 12-month term to ensure members could effectively act as a check on the board of directors.

Following the dismissal of an application for judicial review on the basis of prematurity, the court determined the costs to be awarded to the respondents.

The respondents sought $36,915 in fees, which the court found to be substantially beyond what might reasonably be anticipated.

The court awarded the respondents costs fixed at $15,000 inclusive of GST and disbursements on a partial indemnity basis.

The insured was injured in a motor vehicle accident and subsequently developed a crack cocaine addiction.

He applied for attendant care benefits to supervise him and prevent drug abuse, which the insurer denied on the basis that he was not catastrophically impaired.

An arbitrator later found the insured was catastrophically impaired and ordered the insurer to pay past attendant care benefits, even though the insured had not actually received or paid for the care during that period.

The Director's Delegate upheld this decision.

On judicial review, the Divisional Court dismissed the insurer's application, holding that it was not patently unreasonable to interpret 'incurred' as including reasonable and necessary expenses that would have been provided but for the insurer's improper denial of benefits.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision calculating his pre-accident earnings based on his actual hourly wage of $20.00 rather than the $25.20 rate mandated by his union's collective agreement.

The Divisional Court applied a patent unreasonableness standard of review, given the Tribunal's specialized expertise and the strong privative clause.

The Court held that the Tribunal's task under the pre-1997 Workers' Compensation Act was to determine actual earnings, not what ought to have been paid, and that the Tribunal lacked jurisdiction to enforce the collective agreement.

The application for judicial review was dismissed.

The appellant physician appealed a decision of the Discipline Committee finding him guilty of professional misconduct for falsifying a record and contravening a condition of his certificate of registration.

The Committee had imposed a penalty that included a reprimand, an ethics course, and a requirement to appoint an independent quality advisor for his diagnostic imaging clinics.

The Divisional Court upheld the finding of professional misconduct, concluding it was reasonable based on the evidence that the appellant attached another physician's electronic signature to a quality advisor agreement without authorization.

However, the Court found the penalty requiring an independent quality advisor was unreasonable as it was not rationally connected to the misconduct found, and varied the penalty to remove that condition.

The Registrar of the Motor Vehicle Dealers Act appealed a decision of the Licence Appeal Tribunal regarding the respondent's registration.

The Divisional Court allowed the appeal, finding that the Tribunal applied the wrong statutory test under s. 5(1)(b) of the Motor Vehicle Dealers Act by failing to determine if the respondent's past conduct afforded 'reasonable grounds' for belief that he would not carry on business with integrity and honesty.

The Tribunal also erred by failing to give appropriate weight to evidence of the respondent's past criminal conduct involving defrauding customers.

The matter was remitted to a differently constituted Tribunal for a new hearing.

The appellants, real estate agents, appealed a trial judgment awarding damages to the respondent for their failure to include a financing condition in a second offer to purchase a residential property.

The Divisional Court allowed the appeal and dismissed the action, finding that the respondent suffered no damage as a result of the appellants' omission.

Even if the condition had been included, the conditional period would have expired before the bank withdrew its financing approval, leaving the respondent in the same position.

The cross-appeal was dismissed, and no costs were awarded due to the appellants' conduct.

The employer sought judicial review of an arbitrator's decision regarding an employee's refusal to follow a directive to go to a hospital emergency department.

The arbitrator found that under s. 33(1) of the Act, the employee had the right to make the initial choice of health professional, and that the 'obey now, grieve later' rule did not apply because grieving later would be meaningless.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the statute correct and the application of the 'obey now, grieve later' exception reasonable.