David H. Doherty

The moving party sought an order to withdraw the Court of Appeal's reasons for decision dated September 19, 2017, and to grant a rehearing before a five-judge panel, or alternatively, to stay the decision pending determination of related appeals.

The moving party argued that the Court had effectively overruled Bannon v. Hagerman Estate without notice and had addressed a new issue regarding the Ontario Drug Benefit Program that was not raised by the parties.

The Court dismissed the motion, finding that it had not overruled Bannon but rather distinguished it on its facts, and that the Ontario Drug Benefit Program issue had been squarely addressed by both parties during the appeal.

This is a costs decision on appeal from a Superior Court judgment.

The appellants appealed the decision of Justice Fred Myers dated April 12, 2017.

The Court of Appeal reviewed written submissions on costs and determined that the appellants must pay the respondent's costs in the fixed amount of $30,000 inclusive of disbursements and HST.

The appellant appealed a conviction entered by Justice Chapin of the Ontario Court of Justice on July 15, 2014.

The appeal was allowed on consent.

The conviction was quashed and an acquittal was entered.

The appellants moved under Rule 59.06(2)(d) of the Rules of Civil Procedure for reconsideration of the Court of Appeal's decision maintaining awards of damages against them.

The appellants contended that the trial judge miscalculated damages as of a specific date by failing to consider post-date gains from a transaction.

The Court of Appeal dismissed the motion, finding that the appellants were attempting to reargue an issue that had been decided against them at trial and on appeal, and that the theory of damages was not raised in the original appeal.

The appellant appealed an order dismissing her motion to set aside a summary judgment granted in favour of the respondent bank for a shortfall on a repossessed motorcycle.

The appellant claimed her signature on the guarantee was forged by her deceased husband.

The Court of Appeal upheld the dismissal, finding the appellant failed to meet her burden of demonstrating grounds to set aside the judgment, provided no expert evidence of forgery, offered no adequate explanation for the two-and-a-half-year delay, and would have caused prejudice to the respondent given the four-year delay in enforcement.

The appellant appealed a decision of the Superior Court of Justice dismissing an application.

The Court of Appeal reversed the application decision.

As a result, the costs order awarded to the respondent in the amount of $45,000 was set aside, and costs in the application were awarded to the appellant on a partial indemnity basis in the same amount, inclusive of HST and disbursements.

An insured brought an action against international insurers for breach of an insurance contract.

The insurers moved to stay the action and refer the dispute to arbitration in London, England pursuant to an arbitration clause in the policy.

The motion judge dismissed the stay motion, finding that the "Action Against Insurer" endorsement provided an alternative method of dispute resolution allowing domestic court proceedings.

The appellate court reversed, holding that the arbitration clause was mandatory and the sole method of dispute resolution, and that the "Action Against Insurer" clause was a service of suit provision that did not conflict with the arbitration clause.

The court also clarified that the Model Law on International Commercial Arbitration applies to agreements providing for arbitration of certain disputes, not only those providing for arbitration as the sole method of dispute resolution.

The appellant appealed a sentence imposed by the trial judge for breach of a court order.

The sentencing judge imposed a sentence exceeding the Crown's position without providing the appellant's counsel an opportunity to make further submissions regarding the trial judge's inclination to impose a greater sentence.

The Court of Appeal found this to be an error in procedure.

On review of the fitness of the sentence de novo, the court determined that the Crown's requested sentence was fit and varied the sentence to 12 months less pre-trial custody of 219 days.

A realtor appealed a motion judge's decision dismissing a summary judgment motion in a negligence and improvident sale claim.

The key issue was when a two-year contractual limitation period commenced: at the time the Agreement of Purchase and Sale was signed or at closing.

The motion judge found the limitation period began at closing because no damage occurred prior to that time.

The Court of Appeal upheld this decision, holding that while negligent acts may have occurred before the agreement was signed, damage is an essential element of negligence and did not accrue until title transferred at closing.

The appellant was convicted of first degree murder in the death of his wife at his second trial, following a hung jury at his first trial.

The appeal was allowed on the basis that the trial judge erred in law by refusing to remove trial counsel from the record when counsel sought removal on grounds of ethical concerns and breakdown of the client-solicitor relationship.

The trial judge's refusal to grant the removal application created an appearance of unfairness and constituted a miscarriage of justice, requiring a new trial.

The court also addressed several other grounds of appeal relating to the admissibility of third-party suspect evidence, demeanour evidence, police officer opinion evidence, and hearsay statements, providing guidance for the retrial.

The appellant, as estate trustee of the deceased's estate, appealed an order of the Superior Court of Justice.

The Court of Appeal found that the motion judge made several fact-specific discretionary determinations in an unusual factual matrix and that those decisions were entitled to deference.

The court refused leave to appeal and dismissed the appeal, awarding costs to the respondent.

Minority shareholders in a family-owned company appealed a trial judgment dismissing their oppression and conspiracy claims.

The appellants alleged that the director diverted property interests to his benefit through a series of transactions and that respondents conspired to allow the company to default on a mortgage so that a controlled company could acquire the property.

The trial judge rejected all claims, finding that the appellants' conduct was unclean and that the director's actions were justified to protect the company's interests.

The appellants failed to establish reasonable expectations or damages.

The appeal was dismissed with costs awarded to the respondents.

The respondent appealed a Superior Court judgment that granted the applicant's application to enforce her rights under a Governance Agreement concerning the replacement of Board members of Spectrum Health Care.

The appellants argued the application judge erred in interpreting the contract, should have stayed the application pursuant to an arbitration clause in the shareholders' agreement, and erred in alternative findings regarding oppression remedy and interim injunction.

The Court of Appeal upheld the lower court decision, finding no palpable and overriding error in the application judge's interpretation of the Governance Agreement or his analysis of the alternate remedies.

The appellants appealed a summary judgment decision dismissing their claims against the Toronto Police Services Board.

The appellants argued that criminal proceedings were a nullity because the information was not properly vetted by the Justice of the Peace.

The Court of Appeal found this issue was irrelevant to the summary judgment motion.

The appellants failed to file evidence supporting their claim that police lacked reasonable and probable grounds and did not cross-examine the respondents' extensive material.

The motion judge correctly found the respondents met their onus.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed his conviction for criminal harassment and sought leave to appeal his sentence of 18 months imprisonment.

The conviction arose from an acrimonious divorce and custody/access dispute with his ex-wife.

The appellant alleged the trial judge demonstrated reasonable apprehension of bias through improper intervention, unequal scrutiny of evidence, and imposing a sentence significantly exceeding Crown submissions.

The appellate court dismissed the conviction appeal, finding no reasonable apprehension of bias.

However, the court found the trial judge erred in imposing a sentence substantially longer than Crown submissions without prior notice and opportunity for further submissions.

The sentence was reduced from 18 months to 12 months imprisonment followed by three years' probation.

The appellant appealed his conviction for fraud, arguing that the application judge erred in dismissing his section 11(b) Charter application regarding trial delay.

The appellant contended that the application judge erred in his Morin analysis.

The Court of Appeal upheld the application judge's decision, finding that the delay was reasonable under the Morin framework.

The delay arose from the Crown's decision to join co-accused, and even on the appellant's argument, the excess delay was only one month.

The court found no prejudice to the appellant's liberty interest or ability to make full answer and defence, and noted the serious nature of the fraud and societal interest in bringing the case to trial.

This is a costs endorsement following a successful appeal by the defendants.

The appellants sought partial indemnity costs of $56,676.40, which reflected their full indemnity rate.

The respondent argued for a significant reduction, contending that the court's decision had changed the legal landscape in personal injury litigation.

The court reduced the costs award to $30,000 inclusive of disbursements and HST, reflecting a partial indemnity rate and accounting for the complexity of the issues involved.

The appellant was convicted of second degree murder and aggravated assault following a violent altercation on a restaurant patio.

He appealed on two grounds, claiming the Crown's closing address was improper and that the trial judge's instruction on self-defence was erroneous.

The Crown's closing address did not misstate the legal test for self-defence under s. 34(2) of the Criminal Code, and any inappropriate comments were adequately corrected by the trial judge.

The trial judge's instruction on self-defence was thorough and proper, correctly identifying the three key elements of the defence without improperly adding proportionality as an additional requirement.

The appeal was dismissed.

The Crown appealed the sentence imposed by the Ontario Court of Justice.

The respondent consented to the appeal being allowed.

The Court of Appeal allowed the appeal and varied the weapons prohibition order from five years to ten years pursuant to section 109(2)(a) of the Criminal Code and imposed a lifetime prohibition order pursuant to section 109(2)(b) of the Criminal Code.

The appellant appealed a civil contempt sentence imposed by the motion judge for multiple failures to comply with court orders.

The motion judge had imposed six consecutive sentences totaling 21 months.

On a motion to vary, the motion judge reduced the global sentence to 14 months after finding the appellant had purged contempt in part and made good faith settlement payments.

The appellant argued the motion judge erred by not reconsidering whether sentences should be concurrent rather than consecutive.

The Court of Appeal found no error in principle but, considering further good faith payments made since the motion judge's decision, reduced the global sentence to 12 months.