Exercising Discretion

Triten Corp. of Canada v. Borden & Elliot, 1998 CanLII 18858 (ON SC)

On the issue of prejudgment interest, Triten was awarded an interest rate of 7 per cent rather than the presumptive rate of 13.9 per cent calculated pursuant to s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Triten submits the arbitrator committed an error in law when he awarded prejudgment interest at the average Bank of Canada prime rate in that he did not take into account the criteria set out in s. 130(2) of the Courts of Justice Act.

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A successful plaintiff has a prima facie right to prejudgment interest at the presumptive rate. Before a court can depart from the presumptive rate, s. 130(2) of the Courts of Justice Act requires that specific factors be taken into account. In this case, those factors were not taken into account. Had they been considered, they would have substantially favoured no departure from the presumptive rate. In my view, the arbitrator's failure to consider the criteria enumerated in s. 130(2) amounts to an error in law. I therefore allow the plaintiffs' appeal.

CAS of Toronto v. AA, 2013 ONSC 2617 (CanLII)

[9] ... See also CAS of Peel v. W, 1995 CanLII 593 (ON CA), [1995] OJ no 1308 (CA), at par. 47, where the Court of Appeal considered the extent to which a trial judge can direct the evidence in a protection case and concluded, “… for the most part it must be for counsel to determine the course that the hearing will take.” The mother’s lawyer at trial presented evidence on the mother’s behalf and cross examined the CAS witnesses. There was little if any scope, and no need, for the trial judge to intervene in this case to require more evidence.

North Avenue Road Corporation v Travares, 2015 ONSC 6986 (CanLII)

[35] Even if this was a mootness doctrine case, pursuant to Borowski, in exercising discretion to hear this case, a court is required to bear in mind three basic rationales: the absence of an adversarial relationship, the need to promote judicial economy and the need for the court to demonstrate an awareness of its proper law-making function. In this case, and as the Board found, the problem is not remedied and continues to be a contentious issue between the parties. With this finding, in the exercise of its discretion, the fundamental error of the Board, in my view, lies in the application of the law, and specifically, in the application of s. 20 of the RTA. In addition, the Supreme Court also set out the consideration whether it is in the public interest to deal with the merits in order to settle the law. This is a housing issue. Smoking in residential units where the units such as the one before this court are so close and have life implications for the other, is of public interest.