W.L. Whalen

Following the dismissal of their judicial review application, the applicants argued they should not pay costs because the application was public interest litigation.

The Divisional Court rejected this argument, finding the application was motivated by the practitioner applicants' commercial interests.

The court awarded costs of $30,000 to the Transitional Council and $15,000 to the Minister of Health and Long-Term Care, finding the Transitional Council's initial claim of up to $125,297.56 excessive.

The court ordered all applicants, including patient applicants, to be jointly and severally liable for the costs.

The Divisional Court determined the costs of a summary judgment motion, an application for leave to appeal, and the appeal itself, following the dismissal of the defendants' appeal.

The court upheld the motion judge's award of $18,000 for the summary judgment motion.

The court awarded the plaintiff partial indemnity costs of $10,000 plus HST for the leave to appeal application and $22,500 all-inclusive for the appeal, rejecting the plaintiff's request for substantial indemnity costs.

The appellants appealed a decision dismissing their medical negligence action as statute-barred under s. 38(3) of the Trustee Act.

The action was commenced more than two years after the deceased's death.

The appellants argued the limitation period should be tolled due to fraudulent concealment by the respondent hospital and doctors regarding the deceased's INR results.

The Divisional Court dismissed the appeal, finding that the statement of claim and affidavit evidence did not plead facts sufficient to establish fraudulent concealment, but rather attempted to assert discoverability, which does not apply to s. 38(3).

The applicants sought a declaration that Ontario Regulation 27/13 under the Traditional Chinese Medicine Act, 2006 was ultra vires and breached sections 7 and 15 of the Charter.

They argued the regulation failed to create a 'doctor' class of practitioners and imposed discriminatory English or French language fluency requirements.

The Divisional Court dismissed the application, finding the regulation was intra vires, there is no section 7 Charter right to practice a profession unfettered by regulation, and language alone is not a protected ground under section 15.

The appellant police officer appealed a decision of the Ontario Civilian Police Commission upholding a one-year demotion in rank for discreditable conduct and insubordination.

The appellant argued the penalty was unreasonable because it gave too much weight to a 10-year-old disciplinary record and failed to consider the economic impact on his pension.

The Divisional Court dismissed the appeal, finding the hearing officer reasonably considered the gap in the disciplinary record and that the pension issue was inappropriately raised for the first time on appeal without an evidentiary record.

The applicant sought judicial review of decisions by the Ontario Labour Relations Board and the Human Rights Tribunal of Ontario, which dismissed his complaints for delay.

The applicant had filed complaints regarding his termination and a subsequent settlement agreement 18 months and over two years after the events, respectively.

The Divisional Court found that both tribunals reasonably exercised their discretion in determining that the applicant failed to provide a good faith explanation for the delay.

The application for judicial review was dismissed.

The appellant landlord appealed a trial judgment that found successive indemnifiers were not liable for increased rent during the extension period of a commercial lease.

The trial judge concluded that the indemnifiers were exposed to increased risk due to the higher base rent during the extension, which did not bind them.

The Divisional Court upheld the trial judge's decision, finding no error in his conclusion that the option to renew or extend the lease was neither exercised nor assigned, and therefore could not inform the reasonable expectations arising from the subsequent consent and indemnification agreement.

The appeal was dismissed.

The applicant insurance company sought judicial review of a Financial Services Commission of Ontario (FSCO) decision regarding the applicable interest rate on overdue Statutory Accident Benefits.

The central issue was the interpretation of transitional provisions between the old and new Statutory Accident Benefits Schedules for amounts becoming overdue after September 1, 2010.

The Divisional Court determined the standard of review was reasonableness, as the Tribunal was interpreting its home statute.

The Court dismissed the application, finding the Tribunal reasonably concluded that the 2% interest rate under the old regulation continued to apply to amounts that became overdue after September 1, 2010.

The appellant appealed a trial judgment that reduced her spousal support and ordered its termination, arguing the trial judge erred in finding she was able to work and had not been diligent in seeking employment.

The Divisional Court dismissed the appeal, finding the trial judge's conclusions were supported by the evidence, including the appellant's failure to provide objective medical evidence of her inability to work and her non-compliance with previous court orders to document her job search.

The court upheld the imputation of income and the spousal support order.

The appellants appealed the dismissal of their motion for summary judgment.

They argued that s. 97(2) of the Employment Standards Act barred the respondent's civil action for wrongful dismissal because she had already commenced an ESA complaint.

The Divisional Court upheld the motions judge's decision to decline ruling on the summary judgment motion, noting the respondent's serious allegations of intentional torts, including misrepresentation and fraud affecting the ESA process.

The court found that the evidence required for the tort claims would overlap with the wrongful dismissal claim, making summary judgment inefficient and inappropriate.

The appeal was dismissed.

The appellants appealed an order granting the respondent leave to examine a hostile, out-of-jurisdiction witness before trial pursuant to Rule 36.01(2).

The motions judge had ordered the examination to be videotaped but denied further conditions.

The Divisional Court agreed the examination was warranted but allowed the appeal in part, ordering that a judge be present during the examination to resolve anticipated objections and privilege issues given the witness's hostility.

The defendants brought a motion arguing that the plaintiff failed to perfect a construction lien under the Construction Lien Act because its Statement of Claim did not explicitly plead enforcement of the lien and instead referenced trust provisions.

The court considered whether the issued Statement of Claim, read together with the mandatory Information for Court Use form and the surrounding procedural context, sufficiently demonstrated an intention to enforce the lien within the statutory 45‑day period.

Applying a liberal interpretation of lien pleadings and considering the earlier registration of the lien and payment of security into court, the court found the plaintiff intended to enforce the lien despite deficient drafting.

The court concluded that the lien had been effectively perfected and preserved.

The plaintiff was permitted to amend its pleading to clarify the claim.

The defendants brought a motion seeking relief from forfeiture under s. 98 of the Courts of Justice Act after breaching a settlement agreement that required installment payments totaling $250,000.

The defendants had already paid $155,000 but failed to pay the final $95,000 by the deadline, triggering a contractual clause entitling the plaintiff to judgment for the full $250,000 without credit for prior payments.

The court considered the distinction between penalties and forfeiture and held that enforcing the clause would produce an unconscionable forfeiture because it would permit the plaintiff to recover $405,000 for a settlement valued at $250,000.

The court granted equitable relief from forfeiture and rescinded the earlier judgment.

A new judgment was issued only for the unpaid balance of $95,000 plus interest.

The accused was charged with break and enter and theft from a retail store.

The Crown’s case relied primarily on circumstantial evidence consisting of blood found on the exterior door beneath a broken window used to gain entry.

DNA testing matched the blood to the accused with an extremely high statistical probability, and the accused’s twin brother was excluded as a potential source based on alibi evidence and physical differences from the individual depicted in security video.

Applying the modern approach to circumstantial evidence following R. v. Cooper, the court found that the blood evidence was logically connected to the break‑in and that no reasonable alternative inference was supported by the evidence.

The court concluded beyond a reasonable doubt that the accused was the perpetrator.

The applicant school board sought judicial review of a labour arbitration award that reinstated a teacher who had been dismissed for alleged misconduct involving students.

The board argued the arbitrator applied an incorrectly high standard of proof, drew an unreasonable adverse inference, and improperly excluded similar fact evidence.

The Divisional Court majority dismissed the application, finding that although the arbitrator misstated the law by referencing an intermediate standard of proof, a reading of the award as a whole demonstrated he actually applied the correct civil standard of a balance of probabilities.

The majority also found the arbitrator's treatment of the adverse inference and similar fact evidence was reasonable.

The dissenting judge would have allowed the application, concluding the arbitrator's misstatement of the standard of proof was a fatal error of law.

The plaintiff brought an action seeking an order vesting title to a portion of his parents' property, which he had used to operate a scrap yard business with his late father.

He claimed his parents had promised him the land and sought a constructive trust based on the principles in Soulos v. Korkontzilas.

The court dismissed the claim, finding insufficient evidence of a clear promise and concluding that the family's mutual assistance did not give rise to unjust enrichment, wrongful conduct, or an equitable obligation that would justify imposing a constructive trust.

The applicant sought judicial review of four decisions of the Human Rights Tribunal of Ontario, which had dismissed his complaint of disability discrimination against his former employer and union.

The Divisional Court upheld the Tribunal's decisions, finding it reasonable to bar re-litigation of facts decided by the Ontario Labour Relations Board, rejecting allegations of bias, and finding no denial of procedural fairness in refusing late document production.

The Court also found the Tribunal reasonably concluded that the applicant's termination was based on misconduct, not disability.

The mother, sister, and two brothers of a murder victim appealed a decision of the Criminal Injuries Compensation Board denying them compensation for nervous shock.

The Board had denied compensation based on the deceased's contributory conduct and a finding that the claimants did not meet the criteria for nervous shock because they did not witness the murder.

The Divisional Court allowed the appeal for three of the claimants, finding the Board erred in law by failing to conduct a proportionality analysis between the victim's conduct and the offenders' actions.

The Court also held the Board erred in its application of the nervous shock criteria, as the common law does not strictly require claimants to directly witness the event if they come upon the immediate aftermath.

The City of Kawartha Lakes appealed a decision of the Environmental Review Tribunal upholding a Ministry of the Environment order requiring the City to remediate environmental contamination on its property.

The contamination was caused by a furnace oil leak from an adjacent private property.

The City argued it was an innocent owner and the Tribunal erred by excluding evidence regarding who was at fault for the spill.

The Divisional Court dismissed the appeal, finding that the Tribunal's decision to exclude fault evidence was reasonable, as the Environmental Protection Act's primary purpose is environmental protection, and fault-finding is better suited for civil courts.

The applicant sought judicial review of the Director of the Family Responsibility Office's refusal to enforce a child support order.

In 2001, the applicant had repeatedly advised the Director that the arrears were paid directly to her, leading the Director to clear the arrears.

Six years later, the applicant claimed she had been duped by the payor and asked the Director to reinstate and enforce the arrears.

The Director refused, citing a dispute over the arrears and advising the applicant to seek redress from the court.

The Divisional Court dismissed the application, finding the Director's decision reasonable as there was a real and substantial dispute over the arrears, and the Director is not mandated to investigate or resolve such disputes.