Michael A. Penny

Following a trial where the plaintiff successfully established oppression and was awarded approximately $4.2 million for her shares and termination damages, the court determined the costs of the action.

The plaintiff sought partial indemnity costs of over $1.4 million, while the defendants argued for significant reductions based on the plaintiff's lack of success on several discrete issues.

The court rejected a strict distributive costs approach but reduced the plaintiff's fees by 20% to reflect unsuccessful claims, and made further deductions for post-trial motions and excessive counsel.

The plaintiff was awarded $608,960 in fees and $194,933.33 in disbursements.

The moving party sought leave to appeal from decisions directing that a trial on mobility and residential schedule commence shortly.

After being granted one extension of time to file her materials, the moving party requested a further extension.

The Divisional Court denied the further extension, noting the imminent trial date and lack of evidence supporting the need for an extension.

Based on the detailed notice of motion already filed, the court concluded the proposed appeal did not meet the test for leave to appeal under Rule 62.02 of the Rules of Civil Procedure.

The motion for leave to appeal was dismissed with no order as to costs.

The condominium corporation appealed an order invalidating a lien registered against the respondents' unit for legal fees incurred in seeking compliance with a smoking restriction.

The Divisional Court dismissed the appeal, upholding the application judge's findings that the corporation could not use a section 85 lien to collect legal fees for a section 134 compliance matter without a court order.

The court also upheld findings that the corporation's conduct was oppressive, that it failed to negotiate in good faith, and that the smoking did not constitute a nuisance.

The appellant brought a motion before the Divisional Court seeking a fee waiver for hearing transcripts, which had already been denied in a previous order.

The court issued a notice under Rule 2.1.02 of the Rules of Civil Procedure, requiring the appellant to show cause why the motion should not be dismissed as frivolous, vexatious, and an abuse of process.

The appellant failed to respond to the notice.

The court dismissed the motion, finding it was finally determined by the previous order and entirely without foundation, and directed the registrar to refuse any similar future motions.

The Attorney General for Ontario sought judicial review of an Information and Privacy Commissioner (IPC) decision ordering the disclosure of the Premier's mandate letters to Cabinet ministers.

The Cabinet Office opposed disclosure, claiming the letters were exempt under the Cabinet records exemption in s. 12(1) of the Freedom of Information and Protection of Privacy Act.

The Divisional Court applied a reasonableness standard of review and upheld the IPC's decision.

The court found it was reasonable for the IPC to conclude that the government failed to provide sufficient evidence that disclosing the mandate letters would reveal the substance of Cabinet deliberations.

The appellants, an unsuccessful bidder and a dissenting shareholder, sought a stay of an order approving a plan of arrangement by which NordStar Capital LP would acquire Torstar Corporation, pending their appeal.

The Divisional Court dismissed the motion for a stay, finding that the appellants failed to establish a serious issue for appeal, irreparable harm, or that the balance of convenience favoured a stay.

The court noted that the appellants lacked standing, the hearing process was fair, and the board acted reasonably in rejecting the unsolicited offer in light of hard lock-up agreements.

The appellant lawyer appealed an order dismissing his appeal from an Assessment Officer's decision.

The Assessment Officer had assessed accounts totaling $24,992.55 for legal services, ordered the appellant to refund $2,166.57 to the client, and rejected the appellant's claim for costs of $118,652.53 due to both parties causing delay.

The Divisional Court dismissed the appeal, finding no error of principle or fact by the appeal judge in upholding the Assessment Officer's decision.

The court emphasized the extreme lack of proportionality in conducting a 25-day hearing over a $25,000 dispute.

The applicants, foster parents who had cared for a three-year-old child since birth, sought judicial review of a Child and Family Services Review Board decision that overruled the Children's Aid Society's approval of their adoption application.

The Board had directed the child be placed with the respondents, who had previously adopted two of the child's maternal half-siblings, citing the importance of the child's Métis heritage and biological siblings.

The Divisional Court found the Board's decision unreasonable, noting it applied differential standards to the evidence, ignored the child's strong bond with the foster family, and relied on speculation regarding the child's ability to transition to a new home.

The application for judicial review was allowed, the Board's decision was quashed, and the Society's decision approving the applicants' adoption was restored.

The appellant sought to appeal an interlocutory order that directed estate funds to be paid out of court and removed an estate trustee.

The appellant sought directions and an accounting, effectively attempting to secure funds for a counterclaim against the estate.

The Divisional Court granted leave to appeal but dismissed the appeal, finding the original motion was improperly brought and the appellant had not established the prerequisites for a Mareva injunction to hold the funds as security.

The appellant appealed a mid-trial consent order that would have automatically returned the child to the parents' care following a six-month interim care order.

The child, who had legal representation and party status under the Child, Youth and Family Services Act, opposed the consent order.

The appeal was allowed and a new trial ordered.

The court held that the trial judge erred in law by making a final order based on consent when the child opposed it, thereby disregarding the child's statutory participatory rights.

The court further held that the trial judge's failure to provide reasons for the decision constituted an independent error of law.

The appellant physician appealed a finding of professional misconduct and penalty imposed by the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The Committee had dismissed the original allegations of sexual abuse but found professional misconduct based on the physician's failure to respect the patient's privacy during an examination.

The College conceded that this finding was procedurally unfair because the privacy issue was not raised in the Notice of Hearing.

The Divisional Court allowed the appeal on consent and quashed the liability and penalty decisions.

The moving party sought leave to appeal the order of Dow J. dated March 10, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 for the stay motion and $5,000 for the motion for leave to appeal to the responding party.

The defendants brought a motion for leave to appeal the order of Skarica J. dated February 4, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party, payable jointly and severally by the moving parties.

The landlord appealed a Landlord and Tenant Board decision dismissing her application for compensation for flood damage to a leased condominium unit.

The Board found the tenants were not negligent when a bathroom faucet leaked and they could not locate the shut-off valve, and that their failure to maintain insurance did not render them liable.

The Divisional Court dismissed the appeal, finding no error of law in the Board's negligence analysis and noting the landlord failed to prove that the tenants' lack of insurance caused her loss.

The moving party, former counsel for the applicant, sought leave to intervene as an added party in a judicial review application.

He claimed a pecuniary interest in being paid for his legal services and a reputational interest in defending himself against negative comments made by the hearing panel.

The court dismissed the motion, finding that the moving party's interests were entirely aligned with those of the applicant, who was already advancing the same arguments.

Furthermore, the court held that granting intervention would dramatically expand the issues and record, causing undue delay, and that the motion was brought too late in the proceedings.

The applicants brought a motion for leave to appeal the orders of Perell J. dated March 29, 2019, and June 5, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents in the fixed amount of $11,000.

The appellant veterinarian appealed a 12-month licence suspension and related conditions imposed by the Discipline Committee for professional misconduct, including false advertising and failing to follow client instructions.

The College cross-appealed the Committee's decision to allow the appellant to own a mobile veterinary practice post-suspension.

The Divisional Court dismissed both appeals, finding the penalty was supported by evidence, adequately reasoned, and not disproportionately harsh given the appellant's prior disciplinary record.

The court also found no error in the Committee's distinction between clinics and mobile services for the ownership restriction.

The applicant union sought judicial review of three Ontario Labour Relations Board decisions regarding the employer's refusal to disclose a commercial Master Services Agreement (MSA) with a third party.

The union alleged the refusal violated the employer's duty to not interfere with union representation and the duty to bargain in good faith under the Labour Relations Act.

The Divisional Court dismissed the application, finding the Board's decisions to deny full disclosure, find the initial bad faith bargaining complaint premature, and later order only partial disclosure based on specific bargaining concessions, were all reasonable and consistent with established labour jurisprudence.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court granted the motion for leave to appeal, with costs fixed at $5,000 in the cause of the appeal.

The parties were directed to schedule a teleconference with the Divisional Court Administrative Judge.

The applicant, acting as substitute decision-maker for his incapable elderly father, brought an application for judicial review challenging a hospital's COVID-19 visitor restriction policy and a related memorandum from the Chief Medical Officer of Health.

The applicant argued the restrictions violated his father's rights under sections 7, 12, and 15 of the Charter by preventing in-person visits.

The Divisional Court dismissed the application, finding that neither the hospital's policy nor the CMOH memorandum were subject to judicial review as they did not involve the exercise of a statutory power of decision with a sufficient public character.

Furthermore, the court held that even if reviewable, the policies did not infringe the Charter, as they were based on sound medical and epidemiological evidence rather than discriminatory presumptions, were not arbitrary or overbroad, and did not constitute state-imposed punishment or treatment.