P. Theodore Matlow

The Children's Aid Society appealed a trial judge's order granting a mother and aunt access to two children who had been made Crown wards.

The Divisional Court allowed the appeal, finding the trial judge erred in law by ignoring the statutory presumption against access to Crown wards and improperly placing the burden of proof on the Society.

The court also found the trial judge misapprehended the evidence regarding the beneficial nature of the access and its impact on the children's future opportunities for a permanent and stable adoptive placement.

The appeal was allowed, the access order for the mother and aunt was terminated, and the order was left silent on sibling access to allow the Society to facilitate it.

The appellants appealed a decision of the Licence Appeal Tribunal which directed the Registrar to carry out a proposal to refuse and revoke their motor vehicle dealer registrations.

The Tribunal had held that the Registrar had the onus to show he believed there were reasonable grounds for the proposal, and that the Tribunal owed deference to the Registrar's decision.

The Divisional Court allowed the appeal, finding that the Tribunal erred in law by misapprehending its role.

Under the Motor Vehicle Dealers Act, the Tribunal is required to make its own assessment of the facts and has the explicit statutory authority to substitute its opinion for that of the Registrar, owing no deference to the Registrar's initial proposal.

The Law Society appealed a decision of its Appeal Panel, which had set aside a Hearing Panel's finding that the respondent lawyer committed professional misconduct through sexual harassment.

The Appeal Panel had ordered a new hearing, finding the Hearing Panel erred by failing to strictly apply the credibility assessment test from R. v. W. (D.).

The Divisional Court allowed the appeal in part, holding that strict application of W. (D.) is not required in administrative disciplinary proceedings provided the correct civil standard of proof is applied.

The court restored the finding of professional misconduct but upheld the Appeal Panel's conclusion that the penalty of disbarment was unreasonable, substituting a 12-month suspension.

The appellant housing co-operative appealed a judgment that declared the respondent's membership and occupancy rights terminated but stayed the enforcement of the eviction and arrears on certain conditions.

The respondent, who is disabled, had fallen into arrears after his income decreased and the co-operative froze subsidies.

The Divisional Court allowed the appeal, finding that the hearing judge erred in principle by effectively granting an indefinite and retroactive subsidy to the respondent, which was an unwarranted interference with the co-operative's democratic decision-making process and imposed an unfair financial burden on the other members.

The appellant taxi company appealed a trial judgment awarding the respondent driver $7,500 in punitive damages and $31,500 in substantial indemnity costs after terminating his independent contractor agreement.

The trial judge found the termination was motivated by a perception that the driver was attempting to unionize.

The Divisional Court dismissed the appeal, finding that the violation of the Labour Relations Act constituted an independent actionable wrong supporting punitive damages.

The respondent's cross-appeal for aggravated damages and increased costs was also dismissed.

The applicant sought judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of specific information in a record.

The applicant argued that disclosure would cause competitive harm and reduce incentives to submit comprehensive proposals in future tenders.

The Divisional Court dismissed the application, finding the Commissioner's conclusions reasonable, as there was an absence of detailed and convincing evidence to support the allegations of competitive harm.

The appellant, Jazz Air LP, appealed a costs award of $160,000 on a substantial indemnity basis following the dismissal of its motion for an interlocutory injunction against the respondents.

The appellant argued the amount was excessive for a one-day motion and that substantial indemnity was unwarranted.

The Divisional Court dismissed the appeal, finding that the motion judge did not err in principle given the unsubstantiated allegations of conspiracy, the tactical timing of the motion, and the reasonable expectation that the respondents would spare no expense to defend against an injunction that would have catastrophic consequences for their business.

The College of Physicians and Surgeons of Ontario brought an application regarding an ongoing tribunal hearing involving the Sleep Disorders Centres.

The Divisional Court dismissed the application as premature, finding that no significant harm or breach of natural justice would occur by refusing to decide the issue, especially since the report in question had already been disclosed.

The Court concluded that all related issues should be determined by the tribunal based on a full and complete record.

The respondent leased a BMW and installed extensive aftermarket modifications.

The airbags deployed without a collision, and BMW refused warranty coverage, citing the modifications.

The trial judge found BMW liable for breach of warranty, concluding the exclusion clause was ambiguous.

On appeal, the Divisional Court allowed the appeal and dismissed the action.

The majority held that the trial judge erred in failing to require the respondent to prove the defect was not caused by the modifications, and found the exclusion clause unambiguously excluded coverage for modifications that may result in damage to original components.

The applicant police officer sought judicial review of a decision refusing to quash a notice of hearing regarding a misconduct complaint.

The applicant argued that because the chief of police's delegate initially found the complaint unsubstantiated, he was functus officio and could not subsequently issue a notice of hearing.

The Divisional Court dismissed the application, holding that the initial decision was an investigative, administrative screening function, not a final adjudicative decision, and therefore the doctrine of functus officio did not apply.

The applicants sought judicial review of a policy decision by the Ontario Municipal Employees Retirement Board (OMERS) which directed that amounts paid to firefighters in lieu of paid statutory holidays are not to be included in 'contributory earnings' for pension purposes.

OMERS took the position that such payments constituted 'overtime', which is excluded from contributory earnings under the applicable regulation.

The Divisional Court applied a standard of reasonableness and found that OMERS's interpretation of the term 'overtime' was reasonable, as it fell within the Board's expertise in managing and administering the pension fund.

The application for judicial review was dismissed.

The Grand River Conservation Authority appealed a decision of the Ontario Rental Housing Tribunal finding that the Tenant Protection Act applied to seasonal cottage lot leases.

The Divisional Court upheld the Tribunal's interpretation that the s. 3(a) exemption for seasonal accommodation only applies to commercial establishments like hotels or campgrounds, not to these cottage lots.

However, the Court remitted the matter back to the Tribunal to determine whether a prior mediated settlement between the parties, which purported to exclude the Act's application, was valid under s. 181(2) of the Act.

The Mississaugas of Scugog Island First Nation sought judicial review of several Ontario Labour Relations Board (OLRB) decisions.

The OLRB had certified a union for employees at a casino located on the First Nation's reserve.

The First Nation subsequently passed its own Labour Relations Code and argued that it superseded the provincial Labour Relations Act, 1995, based on aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the application, upholding the OLRB's findings that it had jurisdiction to decide the constitutional question and that the First Nation failed to establish an aboriginal or treaty right to regulate labour relations.

The court also found that the OLRB's procedural rulings were not patently unreasonable.

Apotex Inc. sought judicial review of the Respondents' decision to remove the designation of its generic drug, Apo-Flavoxate, as an interchangeable drug product under the Drug Interchangeability and Dispensing Fee Act (DIDFA) and to delist it from the Comparative Drug Index.

The Divisional Court found that the decision to delist the drug under DIDFA was not rationally connected to the decision to delist it as an eligible benefit under the Ontario Drug Benefit Act.

The majority held that the circumstances surrounding the decision constituted a denial of natural justice and quashed the regulation, restoring the drug's interchangeable status.

A dissenting opinion would have upheld the decision as a valid exercise of public interest discretion.

The appellants, a professional engineer and his firm, appealed a finding of professional misconduct by the Discipline Committee of the Association of Professional Engineers of Ontario.

The finding was based on a highly critical and intemperate letter the appellant wrote to a municipality regarding another engineering firm's proposal.

The Divisional Court upheld the finding of professional misconduct, deferring to the Committee's expertise that the conduct was unprofessional.

However, the Court allowed the appeal regarding the penalty, finding the original sanctions excessive given the appellant's long, unblemished career and the fact that his technical advice was ultimately correct and saved the municipality money.

The penalty was reduced to an oral reprimand and publication.

Following a successful appeal, the appellants sought their costs.

The Divisional Court fixed costs on a partial indemnity scale, allowing the disbursements as claimed but reducing the fees claimed due to duplication of time and excessive preparation time by junior counsel.

Applying the principles from Boucher, the court awarded each appellant $15,000 in fees, plus their respective disbursements, payable by the respondents.

The court issued an endorsement regarding the costs of an application.

The respondent was awarded costs fixed at $7,500 on a partial indemnity basis, payable within one month.

The court applied the principle that costs should follow the event and relied on the Boucher framework to ensure the award was fair, reasonable, and within the parties' reasonable expectations.

In a costs endorsement following an appeal, the Divisional Court awarded the respondent in appeal costs for both the trial below and the appeal.

Guided by the principles in Boucher v. Public Accountants Council, the court fixed the costs at $4,000 for the trial and $4,000 for the appeal, for a total of $8,000 payable by the appellant in appeal.

The appellant was largely successful in having his most serious professional misconduct convictions set aside on appeal, but unsuccessful on his main ground of reasonable apprehension of bias, which consumed 90% of the appeal's time.

The appellant sought costs of $132,868.19.

Applying the principles from Boucher, the Divisional Court awarded the appellant reduced costs fixed at $15,000 on a partial indemnity scale to reflect the divided success.

The appellant was ordered by the Ministry of the Environment to remove hundreds of thousands of used tires from its property.

The appellant hired the respondent to perform the cleanup.

After allegedly being paid only a fraction of what it was owed, the respondent registered a construction lien against the property.

The appellant moved to discharge the lien, arguing the work was not an 'improvement' under the Construction Lien Act.

The motion judge dismissed the motion, finding the removal of contaminated tires constituted an alteration and repair to the land.

The Divisional Court dismissed the appeal, agreeing that the removal of the tires was an improvement.