Michael A. Penny

Following the dismissal of the applicants' motions for a stay of a Ministerial Directive, the court determined the costs of the motions.

The intervenor's request for costs was denied, as the opposition to the stay was already mounted by the respondents.

The respondent Tikinagan sought partial indemnity costs of approximately $108,000.

The court found this amount excessive, noting the public interest nature of the case, the overlap of work with the main applications, and the principle of proportionality.

Costs were fixed at $50,000 payable to Tikinagan, with each applicant responsible for $25,000.

The appellants, the Chief of the Durham Regional Police Service and the Durham Regional Police Services Board, sought judicial review of an interim order made by the Ontario Civilian Police Commission.

The Commission had appointed an Administrator to oversee disciplinary proceedings, promotions, and secondary employment within the Service, citing an emergency and a crisis of confidence.

The Divisional Court dismissed the application, finding that the Commission had the jurisdiction to make the interim order without notice or a hearing under section 24(1) of the Police Services Act.

The Court held that the decision was reasonable, did not breach procedural fairness, and did not raise a reasonable apprehension of bias.

The appellants appealed a judgment allowing an oppression application that granted the respondents sole authority to conduct a civil action.

The respondents had sold their shares in a company to the appellants but retained the financial benefit and cost obligations of an ongoing lawsuit.

The relationship deteriorated, and the appellants ceased pursuing the lawsuit and withheld information.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the appellants' conduct violated the respondents' reasonable expectations, nor any error in the remedy granting the respondents control of the litigation.

This addendum to a prior summary judgment resolves a dispute over the precise amount outstanding under a settlement agreement, which was a condition for granting relief from forfeiture to the defendants.

The court determined the defendants were liable for $12,000 in default administration fees for a specific period (July, August, September 2018) and $108,624.53 in legal fees incurred before November 2018, totaling $120,624.53.

The court rejected the plaintiff's claim for interest on default administration fees and for default administration fees accruing after October 2018 due to the plaintiff's own intransigence in providing an accounting.

A deadline of 30 days was set for payment, failing which the relief from forfeiture would be null and void.

The appellant appealed a Landlord and Tenant Board decision ordering his eviction from a non-profit housing co-operative.

The Board found that the appellant's conduct, which included verbal harassment and laying siege to the co-op office, seriously impaired the safety of the property manager.

The Divisional Court dismissed the appeal, finding no error of law in the Board's formulation of the test for serious impairment of safety and no palpable and overriding error of fact in its evidentiary findings.

The moving party sought leave to appeal an unreported decision of Patterson J. dated October 22, 2019.

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

The applicant brought a motion for leave to appeal the unreported decision of Hood J. dated October 31, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondent and $5,000 to the trustee.

The appellants brought a motion for leave to appeal the decision of Corthorn J. dated November 4, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 inclusive.

The appellant, a registered massage therapist, appealed a decision of the Discipline Committee of the College of Massage Therapists of Ontario finding him guilty of sexual abuse and revoking his license.

The Divisional Court upheld the findings of fact and dismissed allegations of bias.

However, the Court found the Panel erred by applying 2017 mandatory revocation amendments retrospectively to 2014 conduct.

Finding permanent revocation disproportionate for a first-time offender under the prior discretionary regime, the Court substituted the revocation with a suspension ending on the date of judgment.

The appellant husband appealed an order directing the sale of a jointly owned property prior to trial.

The Divisional Court reviewed the motion judge's decision, noting that a joint owner has a prima facie right to an order for sale unless it would cause prejudice, hardship, or injustice.

The court found that the motion judge applied the correct legal test, properly weighed the evidence, and appropriately exercised her discretion in ordering the sale while protecting the husband's interests by restraining the wife from encumbering her own property.

The appeal was dismissed.

The appellant appealed a trial judgment that dismissed her claims for unjust enrichment and a joint family venture arising from her involvement in the respondent's dog grooming business during their common-law relationship.

The trial judge had found the appellant exaggerated her involvement and was adequately compensated.

On appeal, the Divisional Court found no palpable and overriding error in the trial judge's factual and credibility findings.

The court also rejected the appellant's argument that her trial counsel provided inadequate representation.

The appeal was dismissed.

The appellant appealed a motion judge's decision that reduced a Master's awards for an extra invoice, prejudgment interest, and costs in a construction lien dispute.

The motion judge had found that the Master made a palpable and overriding error regarding the date of a supplier's invoice, which tainted the Master's overall negative assessment of the respondents' credibility.

The Divisional Court allowed the appeal, holding that while the Master's factual error was palpable, it was not overriding, as the credibility findings were supported by numerous other significant factors.

The motion judge erred in law by reassessing credibility and substituting his own findings.

The respondents' cross-appeal for a new trial was dismissed.

The appellant appealed a motion judge's decision to impute an annual income of $130,000 to him for the purpose of calculating spousal support.

The appellant argued the motion judge erred by relying solely on previous earnings.

The Divisional Court dismissed the appeal, finding the motion judge considered multiple factors including age, education, skills, and local job market rates.

The court also dismissed a motion to introduce fresh evidence of the appellant's post-hearing employment, noting the proper procedure for changed circumstances is a new motion to change.

The appellant appealed a decision of the Social Benefits Tribunal upholding the denial of her Ontario Works benefits due to having assets in excess of the allowable limit.

The Tribunal found that the appellant owned three vehicles, the value of which exceeded the $5,000 limit for a single person.

On appeal, the appellant argued the Tribunal erred in law by equating legal ownership with the definition of an 'asset' under the Act and failing to consider if the vehicles were exempt.

The Divisional Court dismissed the appeal, finding the Tribunal made no error in law as the appellant failed to adduce evidence that the vehicles were inaccessible or exempt under the regulations.

The applicant, an internationally trained dentist, sought judicial review of two decisions by the National Dental Examining Board of Canada (NDEB) that resulted in her failing the Assessment of Clinical Skills for the third time.

She challenged the denial of both a compassionate appeal and a regular appeal.

The Divisional Court held that the Executive Committee breached its duty of procedural fairness by failing to provide adequate reasons for denying the compassionate appeal, specifically regarding the applicant's mental and emotional state during the exam.

The compassionate appeal decision was set aside and remitted for reconsideration.

However, the court dismissed the judicial review of the regular appeal, finding the Appeals Panel's decision was reasonable, transparent, and intelligible.

The applicant sought judicial review of an interest arbitration award that imposed a non-contracting out provision for a newly created Customer Service Agent position.

The applicant argued it was denied procedural fairness because both parties had agreed in written submissions that the issue of contracting out would be left for a future arbitrator, yet the arbitrator decided the issue anyway.

The Divisional Court held that the arbitrator breached procedural fairness by deciding an issue without giving the parties notice or an opportunity to make submissions.

The application for judicial review was allowed in part, and the relevant portions of the award were set aside and remitted to the arbitrator.

The appellant, counsel for plaintiffs in the Indian Residential Schools Settlement Agreement proceedings, appealed a decision of the Eastern Administrative Judge refusing to recuse himself from determining a request for costs against her personally.

The Divisional Court found that the judge's prior direction, which contained substantive findings against the appellant without notice or opportunity to respond, created a reasonable apprehension of bias.

The appeal was allowed, the costs orders were set aside, and the costs matter was remanded to a different judge.

The applicants, two Indigenous representative groups, brought motions for a stay of a Minister's Directive and Designations that authorized three children's aid societies to provide child and family services in Thunder Bay.

The applicants argued the Directive interfered with their inherent right to self-government and was issued without proper consultation or statutory compliance.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicants failed to establish irreparable harm or that the balance of convenience favoured a stay.

The motions for a stay were dismissed.

The applicant, an internationally trained dentist, sought judicial review of a decision by the National Dental Examining Board's Appeals Committee dismissing his appeal of a failing grade on his clinical skills assessment.

The applicant argued the Committee breached its By-Laws and procedural fairness by failing to hold an oral hearing and failing to provide a post-evaluation review.

The Divisional Court dismissed the application, finding the Committee's decision reasonable as the applicant failed to provide evidence of a procedural irregularity that would trigger an oral hearing, and failed to prove he was denied a post-evaluation review.

The defendants, withdrawn partners of an insurance defence law firm, brought a motion under Rule 45.02 for an order directing the plaintiff partnership to pay their capital repayment amounts into court pending trial.

The plaintiffs had sued the defendants for over $7 million for breach of contract and fiduciary duty, asserting a right of set-off against the capital.

The court found that the capital account constituted a specific fund and that there was a serious issue to be tried.

However, the court dismissed the motion for payment into court because the defendants failed to establish a risk of dissipation, instead ordering the plaintiffs to provide quarterly financial disclosure and not expose the capital to differential risk.