Michael A. Penny

The appellants appealed the dismissal of their motion for an interlocutory injunction.

The injunction sought to prohibit the respondent from challenging the validity of the appellants' U.S. patent, relying on a 'no-challenge' clause in a prior settlement agreement.

The motion judge had dismissed the motion, finding no strong prima facie case because the clause was deemed contrary to public policy based on U.S. case law.

The Divisional Court allowed the appeal, holding that the motion judge erred in her interpretation of the agreement and in applying U.S. law over Canadian law, which upholds such clauses in litigation settlements.

The Court found a strong prima facie case, irreparable harm, and that the balance of convenience favoured the appellants, granting the injunction.

The defendants brought a motion for leave to appeal to the Divisional Court.

The court dismissed the motion and awarded costs of $2,500 to the plaintiff.

The applicant law firm brought a motion for leave to appeal in a matter under the Solicitors Act.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the respondent in the amount of $1,500.

The moving party, Lawyers' Professional Indemnity Company, brought a motion for leave to appeal a July 2, 2020 order.

The Divisional Court granted the motion for leave to appeal.

The court directed that the questions on appeal would be those set out in the moving party's factum, and fixed costs of the motion at $5,000 to the successful party on the appeal.

The tenant's tenancy was terminated by the Landlord and Tenant Board for non-payment of rent.

Her appeal to the Divisional Court was dismissed by the registrar after she failed to comply with an order requiring her to perfect the appeal and pay outstanding rent.

Following the lifting of the COVID-19 eviction moratorium, the landlord enforced the eviction order.

The tenant subsequently moved for a review of the order that set the conditions for her appeal.

The court found the motion appeared moot and directed the registrar to issue a notice under Rule 2.1, giving the tenant an opportunity to explain why her motion should not be dismissed as frivolous and vexatious.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Division, which upheld a hearing panel's order that she pay $150,000 in costs for a discipline proceeding.

The lawyer had entered into a settlement agreement where the Law Society agreed to forgo costs in exchange for her not contesting deemed admissions of professional misconduct.

However, the lawyer subsequently attempted to rescind the agreement and moved to withdraw her admissions.

The Divisional Court dismissed the appeal, finding that the lawyer's actions constituted a repudiation of the settlement agreement, which deprived the Law Society of the substantial benefit of its bargain and relieved it of its obligation to forgo costs.

The Association of Professional Engineers of Ontario (PEO) appealed a decision of its Discipline Panel that dismissed four allegations of professional misconduct against an engineer and his firm regarding their environmental assessment and remediation of an oil spill.

The Divisional Court allowed the appeal, finding that the Panel committed several errors of law, including applying a standard of proof higher than the balance of probabilities, failing to treat practising without a Certificate of Authorization as a strict liability offence, improperly drawing an adverse inference, and applying the tort concepts of harm and causation to the regulatory definition of negligence.

The court set aside the Panel's decision and remitted the matter to be reheard by a differently constituted panel.

The applicant sought to review a case management judge's order that vacated a hearing date for her application to compel the College of Physicians and Surgeons to investigate her complaint.

The hearing date had been vacated because the applicant failed to serve materials and the College had already released its decision, rendering the application moot.

The court found the applicant's motion to review the order appeared to be without purpose and directed the registrar to issue a notice under Rule 2.1 of the Rules of Civil Procedure, requiring the applicant to explain why her motion should not be dismissed as frivolous and vexatious.

The appellant appealed a motion judge's order approving the forms of release proposed by the respondents to finalize an estate settlement.

The parties had previously reached a settlement agreement regarding the distribution of the estate, but could not agree on the terms of the releases.

The Divisional Court dismissed the appeal, finding that the motion judge made no palpable and overriding errors and correctly applied the principle that settlement implies a promise to furnish a release.

The court also denied leave to appeal the costs order, noting it was made on consent, and awarded the respondents $5,000 in costs for the appeal.

The appellant developer appealed a Local Planning Appeal Tribunal decision that repealed a site-specific zoning by-law amendment, preventing the construction of a 16-storey mixed-use building in downtown Kingston.

The Tribunal had found the development incompatible with the area's heritage character and Official Plan policies.

On appeal to the Divisional Court, the appellant argued the Tribunal erred in law by prioritizing heritage over intensification, misapplying zoning by-laws, and improperly imposing height restrictions.

The Divisional Court dismissed the appeal, finding that the Tribunal's balancing of competing policies and assessment of the public interest involved questions of mixed fact and law, not extricable errors of law.

The applicant sought judicial review of three decisions of the Human Rights Tribunal of Ontario dismissing her application against her former employer for alleged discrimination in denying her tenure and terminating her employment.

The Tribunal had directed the matter to a preliminary and summary hearing, ultimately dismissing the claims for delay and for having no reasonable prospect of success.

The Divisional Court dismissed the application for judicial review, finding that the Tribunal's procedures were fair and its decisions were reasonable.

The court declined to consider new Charter and negligence claims raised for the first time on judicial review.

The applicant sought judicial review of the AGCO's decision refusing a retail sales authorization for a cannabis store.

The AGCO rejected the application because the proposed location was within 150 metres of a school, measured using a straight-line method.

The applicant argued the distance should be measured by the shortest publicly available walking route.

The Divisional Court dismissed the application, finding the AGCO's straight-line measurement method was a reasonable interpretation of the Cannabis Licence Act and its regulations, and that the method was sufficiently transparent to the public.

The respondent landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board order terminating her tenancy for persistent late payment of rent.

The Divisional Court granted the motion, finding that the appeal was manifestly devoid of merit as it raised no extricable questions of law, only questions of fact and mixed fact and law.

The court also found the appeal to be an abuse of process because the tenant had not paid rent for 11 months and was using the automatic stay to live rent-free.

The appeal was quashed and the tenant was ordered to vacate the premises.

The employer sought judicial review of an arbitrator's decision to substitute a 30-day suspension for the dismissal of a flight attendant who had unlatched refreshment trolleys during a flight.

The employer argued the arbitrator's reasoning was illogical and failed to address safety concerns.

The Divisional Court dismissed the application, finding the arbitrator's decision was reasonable, justified, and transparent under the Vavilov standard, as the arbitrator reasonably concluded the misconduct was not as grave as the employer believed and lacked malice.

The appellant husband appealed from orders varying temporary child and spousal support, which had been mistakenly issued by the Registrar as final orders.

The Divisional Court set aside the final orders and directed they be reissued as temporary orders nunc pro tunc.

Although leave to appeal the interlocutory orders was required and would not have been granted, the court heard the appeal on the merits.

The court dismissed the appellant's motion to admit fresh evidence regarding the date of separation due to a lack of due diligence.

The appeal was dismissed, as the motion judge made no palpable and overriding error in her support determinations.

The moving parties brought a motion for leave to appeal from an order of Gilmore J. dated May 19, 2020.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the fixed amount of $5,000, inclusive, payable forthwith.

The moving parties brought a motion for leave to appeal from the order of J. Wilson J. dated August 5, 2020.

The Divisional Court allowed the motion for leave to appeal without costs.

The moving parties brought a motion for leave to appeal the decisions of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal and ordered costs of $5,000 payable to the responding insurance company.

The moving party brought a motion for leave to appeal an order dated September 2, 2020.

The Divisional Court dismissed the motion for leave to appeal and ordered costs payable to the responding party in the fixed amount of $2,349.23.

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.