Bradley W. Miller

Four brothers who equally owned a complex real estate development partnership experienced a complete breakdown in their business relationship, leading to a court-ordered wind-up and sale of the business.

Two brothers appealed the trial judge's decision to exclude a specific real estate transaction from the wind-up order, arguing breach of fiduciary duty.

The other two brothers appealed a provision in the judgment requiring them to certify compliance with the wind-up and disclosure orders.

The Court of Appeal dismissed the appeals regarding the excluded transaction, deferring to the trial judge's factual findings that it was conducted outside the partnership.

However, the Court allowed the appeal regarding the certification provision, striking it on the basis that requiring certification of vague obligations in a highly hostile environment would unfairly expose the parties to unwarranted contempt proceedings.

This is a costs endorsement following an appeal where the appellant succeeded in part.

The appellant sought costs of $213,626.59 for the proceedings below, including prior reserved motions and expert fees.

The respondent argued for a reduction to $91,280, challenging the inclusion of prior motion costs, expert fees, and claims of duplication/excessive time.

The Court of Appeal found the prior motion costs and expert fees were reasonably included.

A modest reduction was justified due to some relief obtained by the respondent at the motion judge level (reduction of post-judgment interest).

The court awarded the appellant $180,000 inclusive of disbursements and taxes for costs of the motion below.

The Ontario Securities Commission (OSC) appealed a motion judge's decision to strike its fraudulent conveyance claims under section 2 of the Fraudulent Conveyance Act.

The motion judge had found the pleadings insufficient to establish standing for subsequent creditors.

The Court of Appeal clarified that subsequent creditors can challenge a transfer if it was made with the general intent to defraud creditors, whether present or future.

The Court found the OSC's pleadings contained sufficient "badges of fraud" to support the claim, including the transfer of property for no consideration, a close relationship between parties, and an intent to avoid future business liabilities.

The appeal was allowed, reinstating the fraudulent conveyance claims regarding both the property transfer and subsequent payments.

The appellant, Black & McDonald Limited, appealed two orders staying their proceedings in Ontario in favour of British Columbia as the more convenient forum.

The first action was against Eiffage Innovative Canada Inc. and individuals for breach of contract and breach of trust related to a construction subcontract.

The second was against Liberty Mutual Insurance Company under a payment bond.

The Court of Appeal found that the motion judge erred in interpreting an "exclusive jurisdiction" clause in the prime contract as applicable to the subcontract, and that the forum non conveniens factors did not clearly favour British Columbia, thus the high standard to displace the plaintiff's chosen jurisdiction was not met for the Eiffage action.

For the Liberty Mutual action, the Court found the forum selection clause in the payment bond ambiguous and resolved it against Liberty Mutual, also noting the public policy against multiple proceedings risking inconsistent findings.

The appeals were allowed, and the actions were permitted to proceed in Ontario.

This is an appeal in a protracted family law matter.

The appellant challenged the trial judge's orders regarding supervised parenting time, beneficial ownership of Universal Wealth Assets Ltd. (UWA), support payable, and a broad restraining order.

The appellant also sought leave to appeal the trial judge's costs award of $950,000.

The Court of Appeal dismissed the appeal on all grounds, finding no error in the trial judge's findings regarding parenting time, support, or the restraining order.

While the declaration of UWA ownership was found to be made without jurisdiction as it was not sought as relief, this did not impact the case's outcome.

Leave to appeal costs was denied, as the high award was justified by the appellant's misconduct, fraudulent activity, and bad faith throughout the litigation.

Everest Finance Corporation appealed a motion judge's decision that, while granting summary judgment for mortgage arrears, reduced the amount of interest and costs owed by the respondents.

The motion judge had reduced the interest arrears from $63,010.50 to $20,000 and costs from $34,846.85 to $20,000, attributing the reduction to delays caused by the COVID-19 pandemic and exercising discretion.

The Court of Appeal found no legal basis for a court to reduce contractual interest or full indemnity costs due to court system delays or a general sense of fairness, stating that judicial discretion in costs does not extend to altering contractual terms.

The appeal was allowed, and the judgment was varied to restore the full amounts of interest and costs sought by the appellant.

The appellant sought to overturn a motion judge's finding that a settlement was reached in mediation and the subsequent granting of partial summary judgment.

The Court of Appeal affirmed the motion judge's decision, finding no palpable and overriding error or error in principle.

The appellate court agreed that substantial evidence supported the existence of a settlement agreement, despite the absence of written minutes, and upheld the appropriateness of partial summary judgment given the limited remaining issues.

The appeal was dismissed.

The appellants, Robin and Jennifer Lacey, appealed a decision dismissing their application for declaratory relief and a Writ of Possession concerning a 99-year lease held by the respondent, Kakabeka Falls Flying Inc., over a portion of their property.

The appellants argued the lease violated the Planning Act.

The application judge found the lease commenced prior to May 2, 1968, thus exempting it from the Planning Act's subdivision prohibition, and that the appellants' claim was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld these findings, dismissing the appeal and awarding costs to the respondent.

The appellant, Garfield Anthony Hibbert, appealed an order from the Superior Court of Justice that struck out his statement of claim and dismissed his action.

This was the fourth action he had commenced regarding a dispute over a $9,500 deposit into a tax-free savings account (TFSA) in 2012, after a Small Claims Court action was dismissed (and not appealed), a second Small Claims Court action was commenced, and two subsequent Superior Court actions were dismissed under Rule 2.1 of the Rules of Civil Procedure as vexatious.

The Court of Appeal found the current appeal to also be frivolous, vexatious, and an abuse of process under Rule 2.1, as the appellant was repeatedly re-litigating the same issues.

The moving party sought a panel review of a prior order by Pardu J.A. that dismissed her motion to set aside a Registrar's order dismissing her appeal for delay and to extend time to perfect the appeal.

The Court of Appeal dismissed the review motion, finding no error in the motion judge's assessment of the moving party's delay or the lack of merit in the underlying appeal.

The appellant, Yasin Abdulle, appealed his conviction for second-degree murder and his 15-year parole ineligibility period.

The conviction appeal challenged the admission of evidence regarding prior violent incidents between rival gangs and the use of rap music lyrics during cross-examination.

The sentence appeal argued that the trial judge erred by minimizing the impact of systemic anti-Black racism on the appellant's moral culpability.

The Court of Appeal dismissed both appeals, finding no error in the admission of prior incident evidence or the use of rap lyrics for cross-examination.

While acknowledging the trial judge's error in dismissing evidence of anti-Black racism, the Court found this error did not impact the fit sentence, given the seriousness of the "near first-degree murder" offence and the need for denunciation and deterrence.

The young person appellant appealed a finding of guilt for sexual assault.

The appellant argued the verdict was unreasonable, the trial judge erred in assessing the defence of honest but mistaken belief in consent, and the trial judge misapprehended evidence from other witnesses.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility assessments, no air of reality to the mistaken belief defence, and no misapprehension of the evidence.

This is a costs endorsement from the Court of Appeal for Ontario following a successful appeal by the appellant, Candace Taylor, in a constructive dismissal action.

The Court had previously set aside the motion judge's dismissal of the action and the original costs order.

This endorsement addresses the costs of the underlying motion.

The appellant sought $15,000 or, alternatively, partial indemnity costs of $10,533.07.

The respondent argued for no costs.

The Court awarded the appellant partial indemnity costs of $8,500, finding this amount to be fair, reasonable, and proportionate, while accounting for some duplication in counsel's efforts.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario fixed the costs of the appeal in the amount of $15,000, all-inclusive, payable by the appellants to the respondent within 30 days of the endorsement's release.

The Court of Appeal for Ontario heard an appeal concerning a motion to change a divorce judgment.

The original judgment included a provision for increased spousal support upon default.

The motion judge had found no material change in circumstances but nevertheless varied the judgment by declaring the default provision an unenforceable penalty and reducing the interest on arrears.

The Court of Appeal held that a judge cannot vary a spousal support order under s. 17 of the Divorce Act without a material change in circumstances, as the common law rule against penalty clauses applies to contracts, not to court orders that have been consented to and incorporated into a judgment.

However, the court affirmed the motion judge's power to vary the post-judgment interest rate under the Courts of Justice Act, as this power is distinct from varying support provisions under the Divorce Act.

The appeal was allowed in part, reinstating the default support provision but upholding the revised interest rate.

The appellant, Loujack Café, appealed his convictions for four attempted murders and one aggravated assault, and the concurrent life sentence, stemming from violent random attacks in Hamilton.

The appeal raised three issues: undue delay under s. 11(b) of the Charter (R. v. Jordan), the trial judge's treatment of cross-count similar fact evidence, and the fitness of the sentence.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's Jordan analysis, similar fact evidence rulings, or the imposed sentence.

The appellant, a dual status dangerous offender under the jurisdiction of the Ontario Review Board, appealed the Board's decision declining a placement hearing and affirming his detention in a penitentiary over a maximum-secure forensic hospital.

The Board found the penitentiary placement appropriate given the appellant's extreme risk of re-offence, supported by uncontradicted expert evidence.

The Court of Appeal upheld the Board's decision, emphasizing that a court-imposed penitentiary sentence takes precedence for dual status offenders and that the Board's paramount responsibility is public safety.

The appeal was dismissed as the Board's findings were reasonable and amply supported by the record.

The appellants were convicted of distributing child pornography, advertising sexual services, procuring a person under 18, and receiving financial benefit from sexual services provided by a minor.

They appealed their convictions, arguing errors in Vetrovec instruction and jury misdirection on procurement.

They also sought leave to appeal their sentences, alleging the trial judge made findings of fact inconsistent with the jury's verdict.

The Court of Appeal dismissed the conviction appeal, finding no error in the Vetrovec decision or the jury instructions on procurement, noting the overwhelming evidence of control.

On the sentence appeal, the court agreed the trial judge erred by relying on violence allegations for sentencing after acquittals on related charges.

While this reduced the fit sentence for procurement, the overall global sentences remained appropriate for one appellant.

For the other appellant, fresh evidence regarding his rehabilitation and current circumstances led to a stay of execution for the remainder of his sentence.

The appellants sought an adjournment of their appeal, citing illness and lack of preparation, which was denied by the Court of Appeal.

The court proceeded with the appeal in writing, finding it to be without merit and brought primarily for delay.

The court upheld the application judge's finding that the lease was properly terminated and that the tenants owed rent arrears, dismissing the appeal with costs.

The appellant, Gary Willett, appealed his convictions for child abduction, assault, and theft over $5,000.

He brought a fresh evidence application, including the complainant's testimony from his wife's separate trial, which significantly differed from previous evidence.

The Crown conceded the fresh evidence should be admitted and the convictions quashed.

The Court of Appeal applied the Palmer criteria, finding the new evidence admissible as it undermined the complainant's credibility and the reliability of his original testimony, thereby affecting the safety of all verdicts.

Consequently, the convictions were quashed, and a new trial was ordered on all counts.