Michael A. Penny

The accused, charged with attempted murder and firearms offences, applied for a bail review under s. 520 of the Criminal Code.

He sought to vacate a detention order based on a new supervision plan involving two sureties and a radio frequency ankle bracelet.

The court applied the Palmer test for new evidence and found that the proposed plan did not represent a material change in circumstances, as the sureties would leave the accused unsupervised during work hours and the ankle bracelet would not prevent re-offending.

The court concluded that detention remained justified on the secondary and tertiary grounds.

The application was dismissed.

The defendant brought a motion for summary judgment to dismiss the plaintiff's claims for enforcement of a separation agreement, damages, and relief related to foreign divorce proceedings, as well as a motion to declare the plaintiff a vexatious litigant.

The court dismissed the summary judgment motion regarding the property transfer, finding genuine issues for trial concerning the alleged breach and limitation periods.

However, the court granted summary judgment dismissing the claims related to the Ukrainian divorce proceedings, as they fell outside Ontario's jurisdiction and disclosed no known cause of action.

The motion to declare the plaintiff a vexatious litigant was also dismissed.

The defendants brought a motion to stay the plaintiff's action or remove the plaintiff's counsel, alleging improper use of inadvertently disclosed privileged documents.

The court found that the plaintiff's failure to destroy one electronic copy of a privileged document and its subsequent limited use were inadvertent and caused no prejudice to the defendants.

The court dismissed the request for a stay and removal of counsel but granted ancillary relief ordering the destruction of the privileged documents and prohibiting their further use.

The respondents brought a motion for a stay of execution of a prior judgment by Justice Akhtar, which ordered the removal of illegal construction at their properties due to flagrant violations of building codes and zoning bylaws.

The court dismissed the respondents' motion, finding their conduct to be a continuation of prior violations and their arguments specious.

The court applied a higher test for staying a final judgment, requiring proof that enforcement would be oppressive, vexatious, or an abuse of process, and would not cause injustice to the plaintiff.

The court found that the City's enforcement was not oppressive and that the public interest in safety outweighed the respondents' claims.

Costs were awarded to the City.

The defendants brought a motion to set aside a certificate of pending litigation (CPL) on their Toronto property and to strike the plaintiff's action.

The plaintiff bank alleged that the defendants made unauthorized withdrawals of $295,000 from an uncancelled line of credit and used the funds to acquire the Toronto property, seeking an equitable mortgage and repayment.

The court dismissed the motion to set aside the CPL as the defendants provided no contradictory evidence, and dismissed the motion to strike because the plaintiff's pleadings, if proven true, could support the relief sought.

The defendant, Marker Volkl (International) GmbH, brought a motion under Rule 21.01 to strike the plaintiff's (Tucows.com Co.) claim for declaratory relief.

The plaintiff sought declarations regarding its ownership of a domain name after an adverse decision under the Uniform Domain Name Dispute Resolution Policy (UDRP), which ordered the transfer of the domain name to the defendant.

The defendant argued that the declarations sought were not justiciable and lacked utility as they related exclusively to the UDRP test, which Canadian courts have no jurisdiction to apply or enforce.

The court dismissed the motion to strike, finding that the jurisprudence on the interplay between UDRP decisions and domestic court jurisdiction for declaratory relief was unsettled and should not be resolved on a Rule 21.01 motion.

The plaintiff alleged negligence and breach of fiduciary duty against her investment advisor and related entities arising from recommendations to invest retirement assets in long-term growth securities and universal life policies rather than income-focused products.

The court held that the relationship was not fiduciary, applying broker-client fiduciary factors and emphasizing the absence of discretionary authority, the plaintiff's sophistication, and her approval of each trade.

On the negligence claim, the court found the recommended balanced long-term growth strategy was suitable having regard to the plaintiff's objectives, investment knowledge, time horizon, tax planning goals, and need for asset growth, and rejected the plaintiff's expert's hindsight-based benchmarking methodology.

The court further held that the plaintiff's losses were caused by extraordinary and unanticipated withdrawals to fund Jamaican real estate development and other expenditures, not by unsuitable advice.

The plaintiff's late motion to amend her pleadings to recast her objectives as income-focused was denied, and the action was dismissed.

The plaintiff, Bob Kinnear, on behalf of Local 113 of the Amalgamated Transit Union, sought an interlocutory injunction to prevent the defendant, Lawrence J. Hanley, representing the Amalgamated Transit Union (International), from imposing a trusteeship over Local 113 and from disciplining its members.

The motion also sought to authorize Kinnear to represent Local 113 members and to have Local 113 provide the undertaking as to damages.

The court granted the interlocutory injunction to restrain the trusteeship and ordered Local 113 to provide the undertaking, finding a serious issue to be tried regarding the unconscionability of International's constitution, irreparable harm to democratic rights, and that the balance of convenience favored the plaintiff.

The request for a representative order was deferred.

This application concerned a commercial condominium owner's right to exercise an easement granted by a neighbouring condominium corporation for the installation of utilities.

The respondent condominium corporation argued that the applicant, by virtue of owning parking units within its complex, was an 'owner' subject to Section 98 of the Condominium Act, requiring board approval and a formal agreement for alterations to common elements.

The court determined that the applicant was not an 'owner' of the respondent for the purposes of exercising the easement rights related to its commercial unit in the adjacent condominium, and therefore Section 98 did not apply.

The court also found the applicant was a beneficiary of the easement and that a shared facilities agreement did not apply to the proposed work.

The plaintiff appealed an order of a Master who had dismissed the plaintiff's motion to strike out the defendant's statement of defence and counterclaim.

The defendant had filed the defence after bringing an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

Section 137.1(5) prohibits any further steps in the proceeding once an anti-SLAPP motion is made.

The Master had read in an exception to allow the defence to be filed.

The appeal judge found the Master erred in law, as the statute contains no exceptions.

The appeal was granted, and the statement of defence and counterclaim were set aside, but the defendant was permitted to file a supplementary affidavit attaching the proposed defence as an exhibit.

The Attorney General of Ontario brought an application under the Civil Remedies Act for the civil forfeiture of $25,610 CAD and $80 USD seized during a drug trafficking investigation.

An interested party opposed the application, claiming the funds were intended for the purchase and export of used cars to Nigeria.

The court found the interested party's evidence lacked credibility and concluded the funds were either proceeds of drug trafficking or an instrument for illegal, unlicensed car trading.

The court held the interested party failed to establish legitimate ownership and ordered the funds forfeited to the Crown.

The applicant insurer brought an application to determine priority of coverage under s. 277(1.1) of the Insurance Act following a rental car accident.

The driver, acting in the course of her employment, rented the vehicle using a corporate credit card.

The court found that the employer, not the employee, was the lessee of the vehicle, and therefore the employer's non-owned automobile liability policy with the respondent was first in priority to respond to the claim.

The court also dismissed the respondent's limitation period defence, finding the claim was not discoverable until the driver was served with the underlying action.

The plaintiff succeeded in a defamation action arising from a sustained anonymous internet campaign accusing him, an accountant, of tax fraud, theft, and dishonesty.

The court found the principal individual defendant admitted authoring the campaign with malice, and held the second individual defendant and the corporate defendant jointly and severally liable based on concerted action and authorized corporate involvement.

The court awarded substantial general, aggravated, and punitive damages, emphasizing the uniquely pervasive and harmful nature of online defamation and the defendants’ misuse of the campaign as leverage in parallel business litigation.

Claims relating to assault and destruction of property were dismissed for lack of proof on a balance of probabilities, and no separate finding was made on conspiracy because no additional damages would follow.

The applicant sought to set aside an international commercial arbitration award under the International Commercial Arbitration Act.

The arbitration involved a dispute over the construction of a pipeline in Madagascar.

The applicant argued the arbitral tribunal exceeded its jurisdiction, denied the applicant the right to present its case, and made findings contrary to Ontario public policy.

The Superior Court of Justice dismissed the application, finding no jurisdictional errors, no denial of procedural fairness, and no double recovery that would offend public policy.

The court also noted it would have exercised its discretion to uphold the award even if minor procedural errors had occurred.

In an addendum to previous reasons ordering a buyout of certain members of a corporation, the court addressed disputed terms of the buyout order.

The court determined that the boundaries of severed and retained parcels did not require further input, as the total property value would dictate payouts.

The court also ruled that costs, including commissions, closing costs, and capital gains taxes related to the sale of severed parcels, must be borne by the departing members who benefit from those sales.

A request for interim distributions was denied due to practical uncertainties and tax liabilities.

The Lash family owned a 30-acre cottage property through a non-profit corporation, Lash Point Association Corp. (LPAC).

A dispute arose between family members who wanted to sell their interests and leave (the leave camp) and those who wanted to keep the property for future generations (the remain camp).

The leave camp applied to wind up the corporation and sell the entire property, while the remain camp proposed a court-ordered buyout of the departing members funded by the sale of severed parcels.

The court dismissed the winding up application, finding that a buyout was a viable alternative that would allow departing members to receive fair market value while preserving the corporation's purpose for the remaining members.

The court appointed a receiver to implement the buyout process.

The moving party, Zayo Inc., previously had its motion dismissed.

The motion sought an order for the Monitor to pay Zayo $1,228,799.81 from the proceeds of the sale of the applicants' assets.

In this costs endorsement, Zayo argued that costs are not the norm in CCAA proceedings.

The court disagreed, finding this to be an exceptional case where the normal rule of costs should apply, as the real opponents (the secured lenders and the purchaser) were not insolvent.

The court awarded costs against Zayo, fixing them at $30,000 each for Primus and BMO, and $20,000 each for Birch and the Monitor.

The plaintiff brought a motion for partial summary judgment claiming the defendant breached a non-solicitation covenant in a share purchase agreement by accepting former clients at his new firm.

The defendant brought a cross-motion for summary judgment on a counterclaim for payment of a $400,000 promissory note.

The court found the restrictive covenant did not prohibit the mere acceptance of former clients who transferred their accounts independently without encouragement.

The court also granted judgment on the promissory note, finding no legal or equitable set-off available, but stayed execution of the judgment pending the resolution of the main action.

The plaintiffs, a franchisee and its principal, brought an action for rescission of a franchise agreement under the Arthur Wishart (Franchise Disclosure) Act, 2002, alleging material deficiencies in the franchisor's disclosure document.

The court found three critical deficiencies: the absence of the most recent financial statements, the failure of the franchisor's associate to sign the certificate of truth and accuracy, and the omission of the head lease.

Each deficiency, and certainly all three combined, constituted defective disclosure so material as to amount to "no disclosure at all," thereby triggering the two-year rescission period under s. 6(2) of the Act.

The court rejected the franchisor's arguments that the deficiencies were cured, that disclosure to an agent was sufficient, or that an acknowledgement in the franchise agreement barred the action, citing the Act's consumer protection purpose and "no waiver" provision.

The defendants' counterclaim was dismissed.

The court awarded the plaintiffs rescission damages totaling $287,289.63, including franchise fees, royalties, rent deposit, leasehold improvements, and equipment.

The applicant, the deceased's spouse of 25 years, brought an application for dependant's relief under the Succession Law Reform Act.

The deceased had left the applicant 11 months before his death, moved in with the respondent, and changed his will and beneficiary designations to name the respondent as sole beneficiary.

The court found the applicant was a dependant and the deceased failed to make adequate provision for her support.

Applying the statutory factors, the court ordered that the applicant receive the life insurance proceeds paid to the respondent, half of a joint bank account, the deceased's RRSP funds, shares, and his interest in a business.