Michael A. Penny

The moving parties, acting personally and as estate trustees, brought a motion for leave to appeal the order of Sheard J. dated December 21, 2020.

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

The plaintiff, acting as litigation guardian for his developmentally disabled daughter, brought a proposed class action against Ontario alleging negligence and section 7 Charter violations regarding the administration of waitlists for adult developmental services.

The motion judge certified the negligence and Charter claims.

Ontario appealed to the Divisional Court.

The Divisional Court unanimously allowed the appeal regarding the Charter claims, finding no positive obligation on the state to provide social assistance.

A majority of the court also allowed the appeal regarding the negligence claims, holding that the administration of the benefits program is a core policy decision protected by Crown immunity.

The appeal was allowed and the action dismissed.

The appellant brought a motion for leave to appeal the order of Gauthier J. dated December 16, 2020.

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

The moving party brought a motion for leave to appeal from an order dated January 28, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,500 to the respondent.

The applicant sought judicial review of a preliminary decision by the Licence Appeal Tribunal (LAT) that stayed her application for statutory accident benefits until she consented to the release of insurer's examination reports.

The applicant had revoked her consent, arguing that the involvement of a third-party vendor compromised the independence of the assessments.

The Divisional Court dismissed the application for judicial review as premature, holding that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until they are completed.

The court found no exceptional circumstances, noting that issues regarding the independence of medical assessments should be raised before the ultimate trier of fact.

The moving party brought a motion for leave to appeal an order of Jarvis J. dated January 28, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,500 to the respondent.

The moving party brought a motion for leave to appeal from an order of Kurz J. dated December 10, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,150 to the respondent.

The appellant mother appealed a motion judge's final order asserting jurisdiction over the parties' fourth child under the Divorce Act.

The Divisional Court raised the issue of its own jurisdiction to hear the appeal.

The court concluded that because the order appealed from was made under the federal Divorce Act, rather than an Ontario statute, the appeal route lies to the Court of Appeal under section 6(1) of the Courts of Justice Act, not the Divisional Court.

Applying the Dunnington test, the court declined to dismiss the appeal and instead transferred it to the Court of Appeal.

The appellant architect appealed a decision of the Registration Committee of the Ontario Association of Architects, which reinstated his licence with conditions but refused to reinstate his certificate of practice.

The Registrar's Notice of Proposal to refuse reinstatement was based solely on concerns related to a partial building collapse at the appellant's property.

However, the Committee based its refusal primarily on the appellant's history of fee defaults and poor interactions with the Association, which were not included in the Notice.

The Divisional Court allowed the appeal, finding that the Committee committed an error of law by denying the appellant procedural fairness and natural justice due to the lack of notice.

The moving parties sought leave to appeal the January 11, 2021 decision of Boswell J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

The moving parties sought leave to appeal the February 12, 2021 decision of McEwen J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondents.

The appellant mother appealed a motion judge's order requiring the return of the parties' two children to Nigeria and dismissing her motion for temporary custody in Ontario.

The mother had brought the children from Nigeria to Canada without the father's consent.

On appeal, she argued the motion judge erred in finding the children would not suffer serious harm if returned, in failing to give sufficient weight to the children's views, and in proceeding by way of a long motion rather than a trial.

The Divisional Court dismissed the appeal, finding no error in the motion judge's conclusion that the mother failed to meet the test under s. 23 of the Children's Law Reform Act.

The record did not establish a probability of serious harm, and the motion judge reasonably concluded a trial was unnecessary.

The landlord appealed a Landlord and Tenant Board decision which found the Board had exclusive jurisdiction over the tenants' application for rent abatement.

The landlord had previously commenced a Superior Court application for unpaid occupancy fees, and the tenants subsequently applied to the Board for rent abatement due to alleged lack of heat.

The Divisional Court held that the Board erred in law by concluding it could not decline jurisdiction and by failing to consider whether the tenants' application was an abuse of process.

The Court found that allowing the Board application to proceed would lead to duplicative proceedings and inconsistent findings, as the tenants were raising the exact same issues as a set-off defense in the Superior Court action.

The appeal was allowed and the tenants' Board application was dismissed as an abuse of process.

The appellant lawyer appealed decisions of the Law Society Appeal Division that affirmed findings of professional misconduct, including knowing participation in real estate fraud, and the penalty of license revocation.

The appellant also appealed the dismissal of a motion seeking the recusal of two Appeal Division panelists based on their involvement in a prior costs appeal.

The Divisional Court dismissed the appeal on all grounds, finding no palpable and overriding error in the factual findings, no error in principle regarding penalty or costs, and no reasonable apprehension of bias.

The applicant sought judicial review of a decision by the Ontario Parole Board refusing to order a new hearing for her temporary absence permit application.

Prior to the judicial review hearing, the applicant was granted parole, rendering the application moot.

The applicant argued the court should still hear the matter to provide guidance to the Board on the proper framework for assessing temporary absence cases.

The Divisional Court declined to hear the application, applying the doctrine of mootness and emphasizing that the court's role on judicial review is to assess the reasonableness of specific decisions, not to impose analytical frameworks on administrative decision-makers.

The application was dismissed.

The appellant veterinarian appealed the penalty and costs order of the Discipline Committee following a rehearing.

The Committee had ordered a one-month suspension and $65,000 in costs after the Divisional Court previously set aside some, but not all, findings of professional misconduct.

The appellant also brought several preliminary motions alleging prosecutorial misconduct, bias, and constitutional violations.

The Divisional Court dismissed the preliminary motions as being without merit or previously decided.

The Court also dismissed the appeal on penalty and costs, finding no error in principle and that the penalty was not clearly unfit.

Costs of the appeal were awarded to the respondent College in the amount of $15,000.

The moving parties brought a motion for leave to appeal the October 21, 2020 decision of D.L. Edwards J. The Divisional Court granted the motion for leave to appeal and fixed costs at $5,000 to the moving party in the discretion of the panel hearing the appeal.

The Landlord appealed a Landlord and Tenant Board decision denying an above-guideline rent increase for the cost of installing a fall arrest roof anchor system.

The Landlord argued it was denied procedural fairness when the LTB refused an adjournment to allow it to gather evidence proving the installation was legally necessary.

The Divisional Court dismissed the appeal, finding the Landlord bore the onus of proving the expenditure was necessary to comply with building standards and should have attended the hearing prepared with such evidence.

The Court also rejected the argument that the LTB improperly relied on a confidential prehearing note.

The applicant sought judicial review of HRTO decisions dismissing his human rights application under s. 45.1 of the Human Rights Code.

The HRTO found that the substance of his allegations had been appropriately dealt with in a prior labour arbitration, even though the union declined to advance Code-based arguments.

The Divisional Court dismissed the application, finding the HRTO's application of s. 45.1 was reasonable, as the arbitrator's factual findings precluded any finding of Code violations.

The court also rejected the applicant's claims of procedural fairness denial and reasonable apprehension of bias.

The moving party brought a motion for leave to appeal a December 23, 2019 order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $2,500 to the respondents.