Michael A. Penny

The plaintiffs appealed case conference orders directing that the defendants' liability be determined by summary judgment motions involving viva voce cross-examination of five expert witnesses.

The Divisional Court held that while a case conference judge has jurisdiction to make orders involving powers under Rule 20.04, such jurisdiction should be exercised sparingly.

The court found the case conference judge erred in principle by making the orders without an evidentiary record and by inverting the proper analysis.

The appeal was allowed, the orders were set aside, and the liability case against the Eaton Centre defendants was directed to proceed to trial.

The appellant contractor appealed an order discharging a substantial portion of its claim for lien for failing to perfect it within the statutory deadline under the Construction Lien Act.

The appellant argued that the deadline should be tolled due to promissory estoppel.

The Divisional Court upheld the motion judge's finding that the claim for lien was registered on time but the certificate of action was registered late.

The Court agreed that the respondents made no representations that would give rise to promissory estoppel, and noted that allowing promissory estoppel to defeat strict statutory deadlines could undermine the certainty required by other stakeholders such as lenders.

The appellants (owners) appealed a trial judgment awarding the respondent (contractor) damages and a construction lien for unpaid work and lost profits under a fixed-price residential construction contract.

The owners had terminated the contract mid-construction, alleging fundamental breach due to unilateral design changes and delays.

The trial judge found the owners were responsible for design flaws, the contractor's changes were necessary and approved, and there was no fundamental breach justifying termination.

On appeal, the Divisional Court upheld the trial judge's findings, concluding there was no palpable and overriding error in the assessment of fundamental breach, the valuation of the work completed, or the award for lost profits.

The court also rejected the owners' argument that the trial judge's negative credibility findings against them demonstrated a reasonable apprehension of bias.

The defendants appealed a decision certifying an Ontario national class action and dismissing a motion to stay the action as an abuse of process due to a parallel, certified Quebec class action.

The Divisional Court dismissed the appeal, finding no error in principle in the motion judge's exercise of discretion.

The motion judge properly considered the history of the proceedings, including the defendants' failure to oppose the Quebec authorization after last-minute amendments, and reasonably concluded the Ontario action was not an abuse of process and was the preferable procedure.

The appellant appealed a summary trial decision that allowed the respondent repair shop to recover $30,358.06 for repairs to a vehicle from funds paid into court.

The trial judge had found that although the respondent's non-possessory lien was invalid and unenforceable under the Repair and Storage Liens Act due to a lack of signed acknowledgment, the appellant's payment of the disputed funds into court under s. 24 converted the invalid lien into a valid charge on the funds.

The Divisional Court allowed the appeal, holding that s. 24(13) cannot be used to turn an invalid, improperly registered lien into a valid one.

The respondent's claim was dismissed and the funds were ordered to be paid out to the appellant.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) decision ordering it to pay for disputed chiropractic treatment plans once incurred.

The insurer argued the LAT lacked jurisdiction to order payment for expenses not yet incurred prior to the hearing.

The Divisional Court dismissed the appeal, holding that the LAT has broad remedial powers to determine entitlement to benefits, and requiring claimants to self-fund disputed treatments before accessing the LAT would defeat the consumer protection purpose of the Statutory Accident Benefits Schedule.

The moving parties brought a motion for leave to appeal an order of Kimmel J. dated March 20, 2021.

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

The appellant appealed a motion judge's decision declining to enforce a settlement agreement.

The appellant had accepted a Rule 49 offer to settle for $25,000, but the respondents resiled, arguing changed circumstances.

The motion judge found the offer was validly accepted but declined to enforce it, inferring that the respondents' counsel made a mistake by failing to withdraw the offer.

The Divisional Court allowed the appeal, finding the motion judge erred by basing his decision on an argument not advanced by the parties and by inferring a mistake without evidence.

The settlement agreement was declared valid and enforceable.

The self-represented appellant appealed a Small Claims Court decision dismissing his claim against a car dealership for the value of a provincial government rebate on an electric vehicle.

The appellant argued on appeal that the dealership lied under oath and knew the car would not qualify for the rebate, arguments not raised at trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the dealership's statement of eligibility was not a promise or guarantee, and that the contract placed responsibility for seeking the rebate on the buyer.

The moving party, Fraser Johnston, sought leave to appeal the order of Ramsay J. dated May 31, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were fixed at $4,262.50 and awarded to the responding party, Heartland Farm Mutual Insurance Company, payable by the moving party.

The appellants appealed a Small Claims Court judgment that awarded the respondent contractor payment for construction framing work, including 'extras', and partially allowed the appellants' counterclaim for deficiencies.

On appeal, the appellants argued the trial judge inverted the burden of proof, misapprehended evidence, and made unsupported credibility findings.

The Divisional Court dismissed the appeal, finding no inversion of the burden of proof and no palpable and overriding errors in the trial judge's factual or credibility assessments.

The moving parties sought leave to appeal an order dismissing their motion for a stay of proceedings.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $10,000 to the responding parties.

The appellant children's aid society appealed an order granting the Minister of Public Safety and Emergency Preparedness disclosure of child protection records.

The Minister sought the records to make submissions under s. 50(a) of the Immigration and Refugee Protection Act regarding a pending removal order against the respondent mother.

The Superior Court dismissed the appeal, finding that the Minister had a legitimate interest in determining whether a genuine lis existed in the child protection proceedings, and that the Ontario Court of Justice had jurisdiction under the Family Law Rules to order disclosure to a non-party to ensure a fair procedure.

The court also rejected arguments that the motion judge demonstrated bias during a case conference.

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice.

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

The applicants, environmental advocacy organizations, brought applications for judicial review challenging the failure of various Ontario Ministers to conduct public consultations under the Environmental Bill of Rights, 1993 (EBR) before enacting the COVID-19 Economic Recovery Act, 2020.

The applicants argued that the Ministers acted unreasonably by failing to post proposed amendments to several statutes on the Environmental Registry.

The Divisional Court dismissed most of the challenges, finding the Ministers' decisions reasonable or shielded by retroactive legislation.

However, the court granted the application in part, issuing a declaration that the Minister of Municipal Affairs and Housing acted unreasonably and unlawfully by failing to post proposed amendments respecting Ministerial Zoning Orders under the Planning Act prior to implementation.

The appellants appealed two interlocutory orders made by a motions judge.

The first order prohibited the parties from bringing any summary judgment motions, and the second required the appellants to produce for discovery anyone who filed an affidavit in support of a summary judgment motion.

The Divisional Court allowed the appeals, finding that both orders were made prematurely, without an evidentiary foundation, and in a procedurally unfair manner, as the parties had not requested such relief nor had the opportunity to make submissions on it.

The applicant, an immigration lawyer, sought judicial review of Legal Aid Ontario's decision to remove him from its immigration and refugee panel due to billing irregularities.

The applicant argued the decision was unreasonable and procedurally unfair because he was denied an oral hearing.

The Divisional Court dismissed the application, finding the decision maker's reliance on admitted billing errors to establish a pattern of violations was reasonable.

The court also held that the administrative nature of the decision and the statutory scheme did not require an oral hearing, as the decision was based on admitted facts rather than credibility findings.

The appellant mortgagee appealed a motion judge's decision finding that a mortgage commitment's interest rate provision breached section 8 of the Interest Act.

The provision increased the interest rate from 8.25% to 18% in the final month of the term unless the mortgage was renewed or discharged.

The Divisional Court allowed the appeal, holding that the interest rate increase was triggered by the passage of time rather than default, and therefore did not violate the Interest Act.

The appellant was awarded judgment reflecting the 18% interest rate for the final month and thereafter, along with costs.

The applicant dentist sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB), which affirmed a decision of the Inquiries, Complaints, and Reports Committee (ICRC) of the Royal College of Dental Surgeons of Ontario.

The ICRC had ordered the applicant to complete a specified continuing education or remediation program (SCERP) and receive a caution regarding unnecessary dental restorations and providing inaccurate information during the investigation.

The applicant argued the ICRC made impermissible credibility findings and that the HPARB failed to provide meaningful analysis.

The Divisional Court dismissed the application, finding that the ICRC's factual conclusions were reasonable, within its mandate, and supported by the documentary record, and that the HPARB's review was adequate and responsive.

The applicant sought judicial review of a Licence Appeal Tribunal decision barring him from proceeding with an appeal for catastrophic injury benefits due to his failure to attend an insurer's medical examination and provide documents.

The Divisional Court dismissed the application, finding that the applicant had an adequate alternative remedy through a statutory right of appeal under the Licence Appeal Tribunal Act.

The court held that no exceptional circumstances existed to justify bypassing the statutory appeal process in favour of judicial review.