W.L. Whalen

The appellant appealed a costs decision of the Discipline Committee of the Association of Professional Engineers of Ontario.

The Committee had dismissed a complaint regarding the appellant's election campaign material but denied his request for costs, finding the commencement of proceedings was not unwarranted.

The Divisional Court held that although the Committee erred in its view of what the Complaints Committee knew, this error did not render the decision unreasonable, as the election material could still reasonably be viewed as crossing the line into unprofessional conduct.

The appeal was dismissed.

The applicant, a director of a bankrupt Nova Scotia corporation operating in Ontario, sought judicial review of an Ontario Labour Relations Board decision upholding an Order to Pay unpaid wages to Ontario employees.

The applicant argued she was exempt under s. 80(4) of the Employment Standards Act, 2000, asserting the provision should be read disjunctively.

The Divisional Court dismissed the application, finding the Board's conjunctive interpretation of s. 80(4) was reasonable and consistent with the remedial purpose of the Act, despite brief contrary pronouncements in prior civil court decisions.

The appellant husband appealed a trial judgment regarding the interpretation of a separation agreement and an award of retroactive spousal support.

The trial judge had found the agreement valid, interpreted it to include the equal division of the husband's RRSPs, and awarded $30,000 in retroactive spousal support.

The Divisional Court allowed the appeal, finding that while the agreement was binding as an interim measure, it did not oust the equalization provisions of the Family Law Act and did not include the RRSPs.

The court also set aside the retroactive support award because the trial judge failed to address the necessary legal considerations.

The matter was remitted to trial.

The applicants, Shoppers Drug Mart Inc. and Katz Group Canada Inc., sought costs after being wholly successful in their judicial review applications against the Minister of Health and Long-Term Care.

The respondents argued the claimed costs were excessive and duplicative.

The Divisional Court rejected the duplication argument, noting the complexity and importance of the first-instance proceeding.

The court awarded Katz Group its full claimed costs, but reduced Shoppers Drug Mart's fee claim from $104,354 to $80,000 due to excessive hours and duplication among its legal team.

The applicants, who own and operate pharmacies in Ontario, challenged the validity of provincial regulations that prohibited 'private label' generic drugs from being designated as interchangeable or listed for public reimbursement.

The Divisional Court held that the regulations were ultra vires the Ontario Drug Benefit Act and the Drug Interchangeability and Dispensing Fee Act.

The Court found that the enabling statutes authorized the imposition of conditions, not absolute prohibitions, and that the ban on private label products was extraneous to the legislative purpose of controlling drug costs.

The regulations were declared invalid and of no force and effect.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision that found they had discriminated against an employee on the basis of ancestry, ethnic origin, creed, and sex.

The Divisional Court set aside the Tribunal's decision, finding it to be patently unreasonable and procedurally unfair.

The adjudicator erred by refusing to accommodate a key witness for the employer, drawing an adverse inference from that witness's absence, and making findings of discrimination regarding a microwave policy and dress code that were unsupported by factual findings or logical legal reasoning.

The matter was remitted for a new hearing before a different adjudicator.

Air Canada sought judicial review of a labour arbitration award that directed it to offer 90 denied Voluntary Separation Program (VSP) applications to eligible employees.

Air Canada argued the arbitrator exceeded his jurisdiction by modifying the collective agreement and interfering with management rights.

The Divisional Court applied the reasonableness standard of review, finding that the arbitrator was properly interpreting the quantitative language of the Memorandum of Understanding, which required the maximum number of VSPs to be granted.

The application for judicial review was dismissed.

The Registrar of the Motor Vehicle Dealers Act appealed a Licence Appeal Tribunal decision directing the registration of a motor vehicle dealer and salesperson.

The Tribunal had excused the respondents' failure to disclose numerous prior convictions due to language barriers and ignorance of the law.

The Divisional Court allowed the appeal, finding the Tribunal's decision unreasonable because it failed to properly assess whether the respondents' past conduct afforded reasonable grounds to believe they would not carry on business in accordance with the law and with honesty and integrity in the future.

The appellant appealed the dismissal of its motion under Rule 45.02 for an order preserving a sum of money held as cash collateral.

The appellant argued that its obligations under a Letter of Credit Agreement were discharged because the respondent entered into a forbearance agreement with the principal borrower, materially altering the guaranteed loan.

The Divisional Court dismissed the appeal, finding that the agreement was for a standby letter of credit, not a guarantee, and thus the law of guarantees did not apply.

Furthermore, the cash collateral was not a specific fund to which the appellant had a proprietary claim, and the appellant had implicitly ratified the forbearance agreement by participating in the borrower's insolvency proceedings without objection.

The applicant sought judicial review of a decision by the Criminal Injuries Compensation Board denying his claim for compensation because he failed to promptly report the assault to police.

The Divisional Court dismissed the application for judicial review as the applicant had not exhausted his statutory appeal rights.

Treating the matter as an appeal, the Court found no error of law in the Board's decision, noting the Board properly exercised its discretion under s. 17(2) of the Compensation for Victims of Crime Act based on the applicant's delay in reporting the incident.

The applicants sought judicial review of an interlocutory decision by the Criminal Injuries Compensation Board refusing to order pre-hearing disclosure of police investigation records.

The Divisional Court dismissed the application, finding it premature as the administrative proceedings were not complete and no exceptional circumstances existed.

Furthermore, the Court held that the Board, as an impartial adjudicative body, lacks the statutory authority to compel third parties, such as police officers, to provide pre-hearing disclosure.

The appellant, a private citizen, sought to lay an information before a justice of the peace in Toronto for offences allegedly committed in another administrative region.

The justice refused to receive the information, citing a lack of territorial jurisdiction.

The appellant's application to compel the justice to receive the information was dismissed by the Superior Court.

On appeal, the Court of Appeal held that 'territorial jurisdiction' in section 504 of the Criminal Code refers to the entire Province of Ontario, not administrative regions.

The appeal was allowed, and the justice was ordered to receive the information.

The applicants sought judicial review of an Ontario Racing Commission (ORC) decision suspending them for one year and imposing fines for 'tubing' horses prior to races.

The applicants argued they were denied natural justice because the ORC relied on general rules rather than a specific prohibition against tubing, and that the panel erred in excluding photographic evidence.

The Divisional Court applied the reasonableness standard, finding ample evidence that tubing was a known prohibited practice in the industry.

Although the panel erred in excluding the photographs, it did not cause a meaningful injustice.

The application was dismissed and the penalties upheld.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's order requiring the insurer to pay the claimant approximately $4,350 for attendant care and housekeeping services.

The insurer argued the arbitrator erred by relying on an excerpt from a medical report and by judging the claimant's credibility solely on her demeanour.

The Divisional Court dismissed the application, finding that the excerpt was properly in evidence as part of a larger report filed by the insurer, and that the arbitrator reasonably weighed credibility in the context of the evidence as a whole.

The standard of review applied was reasonableness.

The appellant appealed an order that dismissed his claim for reimbursement of child support overpayments.

A previous final judgment had already ordered the respondent to pay the appellant for the overpayments.

The Divisional Court held that the motion judge was functus officio and lacked jurisdiction to reconsider the final judgment.

The appeal was allowed, the subsequent order was set aside, and the respondent was permitted to set off outstanding costs awards against the judgment debt.

The applicant sought to reopen his sentence appeal after being declared a dangerous offender and receiving an indeterminate sentence.

He argued that based on a subsequent Supreme Court of Canada decision, the sentencing judge erred by not considering the long-term offender provisions.

The Court of Appeal held it had jurisdiction to reopen the appeal because the merits were not previously decided.

The court found it was in the interests of justice to reopen the appeal due to the serious error of law and the possibility of a different result at a new sentencing hearing.

The appellant appealed his convictions for choking and assault in a domestic violence context.

He argued that the trial judge misapprehended the evidence, failed to properly apply the W.(D.) principles regarding credibility, and provided deficient reasons.

The Court of Appeal dismissed the appeal, finding that the trial judge properly assessed credibility, did not treat the case as a mere credibility contest, and provided adequate reasons for the convictions.

The appellant appealed his 15-year sentence for robbery, aggravated assault, and firearms offences, arguing unjustifiable disparity with his co-accused's 11-year sentence and that his firearms sentences should have been concurrent.

The Court of Appeal dismissed the appeal, finding the disparity fully justified by the appellant's extensive criminal record, age, and parole status at the time of the offences.

The court also held that the sentencing judge was entitled to impose consecutive sentences for the firearms offences to reflect the invasion of different legally protected interests.

The young person appealed a conviction entered by the youth court.

The appellant argued the trial judge erred in assessing identification evidence, applying the W.D. framework, and misapprehending evidence.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's assessment or application of the law.

The appellant appealed his drug-related conviction on the sole ground that the trial judge failed to warn the jury not to engage in propensity reasoning.

The Court of Appeal dismissed the appeal, finding that since identity was the sole issue and all evidence was admissible on all counts, the requested warning would have confused the jury and would not have benefited the appellant.