Michael A. Penny

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, which found he committed professional misconduct by improperly billing OHIP and falsifying patient records, and revoked his certificate of registration.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors of fact or errors of law in the Committee's liability decision.

The Court also upheld the penalty of revocation, concluding it was not clearly unfit given the intentional and dishonest nature of the misconduct and the appellant's lack of insight.

The appellants appealed an urgent Commercial Court order that set a date for a requisitioned shareholder meeting, appointed an independent chair, and restrained directors opposing the requisition from voting shares issued to them after the requisition date.

The appellants argued the application judge failed to make an explicit finding of impropriety regarding the share issuance and failed to apply the business judgment rule.

The Divisional Court dismissed the appeal, finding the application judge's reasons were sufficient when read in context, as they clearly demonstrated concern that the shares were issued to dilute the requisitioning shareholders' voting power.

The court also held the application judge properly declined to apply the business judgment rule, as the directors' actions were not in the best interests of the company.

The defendants appealed a motions judge's decision refusing to dismiss the plaintiffs' claims for negligent investigation and malicious prosecution on a summary judgment motion.

The claims arose after the plaintiff was acquitted of sexual assault charges, with the trial judge finding the complainant lacked credibility on collateral issues.

The Divisional Court allowed the appeal, holding that the motions judge erred in equating the trial judge's adverse credibility findings on collateral issues with 'overwhelming evidence' that would vitiate the police's reasonable and probable grounds for the arrest and prosecution.

The remaining claims were dismissed.

The applicants sought judicial review of an arbitrator's decision denying them intervener status in a labour grievance between a union and an employer regarding alleged subcontracting violations.

The applicants argued the grievance would adversely affect their ability to work and supply workers.

The Divisional Court dismissed the application, upholding the arbitrator's finding that the applicants lacked a direct and legal interest in the private dispute resolution process between the union and the employer.

The appellant appealed a temporary order dealing with parenting time and the sale of the matrimonial home.

The appellant argued the motions judge erred by denying an adjournment, failing to consider the best interests of the children, and ignoring child support arrears.

The Divisional Court dismissed the appeal, finding no error in the motions judge's exercise of discretion given the appellant's history of delay.

The court also found the motions judge properly considered the children's best interests and the respondent's sobriety, and appropriately ordered the sale of the home due to the appellant's interference.

The moving party, an insurance company, brought a motion for leave to appeal the unreported decisions of the motion judge dated January 4, 2021, and January 21, 2021.

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

The parties were directed to contact the court to schedule a case conference.

The appellant architect appealed a decision of the Discipline Committee of the Ontario Association of Architects finding him guilty of professional misconduct for practicing architecture through an unlicensed service corporation.

The core issue was whether pre-building-permit drawings prepared by the corporation constituted a 'design' intended to govern the construction of a building under the Architects Act.

The Divisional Court dismissed the appeal, finding no error in the Committee's conclusion that the drawings were intended to exert a controlling influence on the construction of the hotel.

The applicant sought judicial review of a university adjudicator's decision regarding her sexual assault complaint against another student.

The adjudicator had deferred the outcome of the university's disciplinary appeal to the result of the respondent's pending criminal trial.

The Divisional Court granted the application, finding that the adjudicator unlawfully delegated his decision-making authority and improperly imported the criminal standard of proof into an administrative proceeding.

The decision was quashed and remitted to a different adjudicator.

The appellant sought to appeal and judicially review a Licence Appeal Tribunal (LAT) decision which found her claims for statutory accident benefits were statute-barred.

The Divisional Court dismissed the statutory appeal, finding that the LAT's determination of whether the insurer's denial letter was clear and unequivocal was a question of mixed fact and law, not an extricable question of law.

The court also declined to exercise its discretion to hear the judicial review application, holding that judicial review of a LAT decision on statutory accident benefits is only available in exceptional circumstances, given the legislative intent to limit appeals to questions of law.

The appellants appealed a Licence Appeal Tribunal decision revoking their motor vehicle dealer registration under the Motor Vehicle Dealers Act, 2002.

The tribunal found the appellants sold vehicles with false safety certificates, failed to disclose material defects, and breached registration conditions.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the tribunal's factual findings and concluding that the penalty of revocation was not clearly unfit given the serious misconduct.

The appellants appealed the dismissal of their motion for class certification against an auditor.

The motion judge found that the pleadings failed to disclose a cause of action because settled law on auditor liability precluded a finding that the auditor owed a duty of care to unitholders of the funds.

The Divisional Court upheld the decision, finding that the statement of claim did not plead material facts establishing an undertaking by the auditor to the unitholders for their individual investment decisions, which is required to establish sufficient proximity for a claim of pure economic loss.

The appellants, who own taxicab licences in Toronto, sought to certify a class proceeding against the City of Toronto for economic losses allegedly caused by the City's failure to enforce its by-laws against Uber and other private transportation companies.

The motion judge dismissed the certification motion, finding it plain and obvious that the City did not owe the appellants a private law duty of care.

The Divisional Court dismissed the appeal, agreeing that the City's regulatory role and its interactions with the appellants did not create a relationship of proximity, and that policy reasons regarding indeterminate liability negated any prima facie duty of care.

The moving parties brought a motion for leave to appeal the March 2, 2021 decision of McEwan J. The Divisional Court dismissed the motion for leave to appeal and awarded costs in the amount of $5,000 to the responding parties.

The applicant brought an application for judicial review seeking compensation from the school board for an alleged historical failure to diagnose and accommodate a learning disability.

The court initiated a process under Rule 2.1.01 of the Rules of Civil Procedure to determine whether the application should be dismissed as frivolous or vexatious.

The court dismissed the application, finding that the Divisional Court has no jurisdiction to award damages or compensation on an application for judicial review, making the application clearly doomed to fail.

The moving party defendant brought a motion for leave to appeal a prior decision.

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

The moving party brought a motion for leave to appeal an interim order previously issued by the lower court.

The Divisional Court reviewed the motion in writing.

The motion for leave to appeal was dismissed, and costs were ordered payable to the respondent in the fixed amount of $2,500.

The applicant sought judicial review of a decision by the Chief Electoral Officer to refer complaints to the Attorney General as apparent contraventions of the Elections Finances Act.

The Divisional Court dismissed the application, finding that the decision did not affect the legal rights, interests, property, privileges, or liberty of any person.

Applying the Court of Appeal's reasoning in PC Ontario Fund, the court held the decision was not susceptible to judicial review and did not engage section 2(b) Charter rights.

The applicant brought a motion for leave to appeal an interim order.

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

The applicant, a First Nation person operating a tobacco distribution business on a reserve, sought judicial review of the Minister's direction requiring wholesalers to pre-collect provincial tobacco tax from her.

She argued this violated her tax exemption rights under section 87 of the Indian Act and the Tobacco Tax Act regulations.

The Divisional Court dismissed the application, finding that the statutory exemption for 'exclusive use' does not apply to tobacco purchased for resale.

The court also held that the provincial pre-collection scheme is constitutional, does not conflict with the Indian Act under the paramountcy doctrine, and does not impair core federal jurisdiction under the interjurisdictional immunity doctrine.

The applicant, a municipal councillor, brought a motion for directions to compel the Integrity Commissioner to file the entire record of proceedings, including confidential evidence, for her pending judicial review application.

The applicant argued that the Commissioner's report waived the statutory duty of secrecy and that procedural fairness required full disclosure.

The Divisional Court dismissed the motion, holding that the Commissioner's statutory duty to preserve secrecy under s. 223.5 of the Municipal Act prevails and is not overridden by the general principles of open court proceedings or the Statutory Powers Procedure Act.