David M. Brown

The plaintiffs brought a motion for leave to amend their statement of claim to add new allegations and causes of action, and to strike certain engineering reports from evidence.

The motion was brought 13 years after the action was commenced and 15 years after the underlying events.

The court dismissed the motion to amend, finding that the plaintiffs' inordinate and unexplained delay gave rise to a presumption of non-compensable prejudice that they failed to rebut.

Furthermore, the proposed new claims were statute-barred under the Limitations Act, 2002, as the plaintiffs failed to demonstrate that discoverability was a triable issue.

The motion to strike the engineering reports was dismissed as premature, with admissibility left for the trial judge.

The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's lawyer and his law firm from the record.

The defendants argued that the plaintiff's lawyer was a material witness because he had provided a second opinion to the plaintiff during the underlying litigation and subsequently negotiated its settlement.

Applying the Essa factors, the court found that the lawyer would likely have material evidence regarding the advice given, mitigation, and damages.

The court concluded that the lawyer's dual roles as advocate and witness created an irreconcilable conflict of interest.

The motion was granted and the lawyer and his firm were removed from the record.

The applicant landlord commenced an application seeking various relief, including termination of commercial leases and a declaration regarding rent adjustments.

The respondent tenant brought a motion under s. 7(1) of the Arbitration Act, 1991 to stay the application in favour of arbitration.

The court applied the Peace River framework and found that the matters in dispute fell outside the scope of the arbitration agreement in the leases.

The motion for a stay was dismissed, and costs were awarded to the landlord.

The plaintiff brought a motion to compel an officer of the corporate defendant to attend an examination in aid of execution, validate service of notices of examination, order substituted service, and compel pre-examination document production.

The court validated service for one attempt where the officer actively evaded service, but declined to validate earlier attempts that were only served on the corporation.

The court granted substituted service for future documents and ordered pre-examination document production to promote efficiency.

Costs of $20,000 were awarded to the plaintiff.

The plaintiff brought a motion seeking to strike the defendant's statement of defence for failure to attend examinations for discovery and mediation, and in the alternative, sought an order compelling the defendant to produce Marc Wade as its representative for discovery.

The defendant opposed the motion to strike and the order compelling production of Marc Wade, but did not oppose a status hearing or extension of the set-down deadline.

The court granted the motion to compel production of Marc Wade as the discovery representative, finding him to be the controlling mind of the defendant and therefore an appropriate officer or employee under the Rules of Civil Procedure.

The court dismissed the motion to strike the statement of defence, finding the defendant had reasonably explained its failures and that striking the defence was not a proportionate remedy.

The court granted a status hearing, extended the set-down deadline, and imposed a court-ordered litigation timetable.

The defendant was ordered to pay costs fixed at $14,000 on the partial indemnity scale.

The plaintiffs brought a motion seeking leave to issue a certificate of pending litigation (CPL) against a matrimonial home allegedly transferred by one defendant to his spouse in a fraudulent conveyance scheme.

The plaintiffs' claims as creditors were based solely on damages sought in a separate underlying action against the defendant and others.

The court applied the three-part test from Grefford v. Fielding and dismissed the motion, finding that the plaintiffs failed to demonstrate a high probability of success in the underlying action and that the balance of convenience favoured denying the CPL, particularly given that the current property owner was a stranger to the underlying dispute.

Following a successful appeal that set aside the dismissal of their action under s. 137.1 of the Courts of Justice Act, the appellants sought costs of the motion below.

The respondents argued that the presumption against costs in s. 137.1(8) should apply.

The Court of Appeal agreed with the appellants that the presumption should not apply because the underlying dispute was a private matter and not a SLAPP.

The court awarded the appellants costs of the motion below fixed at $30,000.

This costs endorsement from the Court of Appeal for Ontario addresses the allocation and quantum of costs following the respondents' success in opposing the appeal.

The court fixes costs at $20,000, apportioned 90% to the group represented by Manson and Fleury, and 10% to the group represented by Overwater, to be paid within 30 days.

The appellants, a home builder and its owner, brought a defamation action against the respondent homeowners over negative social media posts following a renovation dispute.

The motion judge dismissed the action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Court of Appeal allowed the appeal, finding that the online reviews reflected a purely private dispute and did not relate to a matter of public interest.

The Court also held that the motion judge erred in her approach to the 'no valid defence' requirement and the public interest weighing exercise, concluding that the defamation action should be permitted to proceed.

The appellants, defendants in a proposed class action arising from the 2022 Freedom Convoy protest in Ottawa, appealed the dismissal of their anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

The Court of Appeal upheld the motion judge's decision, finding no reversible error in his conclusions that there were grounds to believe the plaintiffs' claims for private and public nuisance had substantial merit, that the defendants had no valid defence, and that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the defendants' expression.

The appeal was dismissed.

The appellant appealed his first-degree murder conviction, arguing that his confession, obtained during a 13-hour police interrogation using the Reid Technique, should have been excluded.

The appellant and an intervener argued for a new common law rule creating a rebuttable presumption of involuntariness for confessions elicited via the Reid Technique.

The Court of Appeal declined to amend the confessions rule, finding the existing framework sufficient.

However, the Court allowed the appeal and ordered a new trial, finding the trial judge erred by failing to assess the cumulative effect of the prolonged, aggressive questioning and by making a palpable and overriding error of fact in concluding the appellant had not fallen asleep during the interrogation.

The appellant father appealed a final parenting order regarding his adult child with Down Syndrome.

The trial judge had ordered that the father have no unsupervised parenting time, and that supervised parenting time occur only at the respondent mother's discretion.

The Court of Appeal admitted fresh evidence confirming the child's views could not be easily ascertained, satisfying the presumption of capacity framework.

However, the Court found the trial judge erred by failing to include a review mechanism in the order, given that the adult child would never 'age out' of it.

The appeal was allowed in part and remitted to the trial judge to structure a built-in review mechanism to allow the father to seek unsupervised parenting time in the future.

The appellant employer appealed a summary judgment decision awarding a former executive unpaid vacation pay, deferred bonuses, and the value of lost stock options.

The employer argued the motion judge erred in granting the relief, in finding that issue estoppel barred its just cause defence, and in determining the matter via summary judgment.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's assessment of the evidence or his conclusion that the just cause defence was barred by issue estoppel following the earlier dismissal of the employer's counterclaim under section 137.1 of the Courts of Justice Act.

The appellant, an 18-year-old Indigenous man, shot and killed his father and best friend, and attempted to kill his father's girlfriend while highly intoxicated.

Following a trial, he was convicted of two counts of second degree murder and one count of attempted murder.

The trial judge accepted a joint recommendation from counsel and imposed concurrent life sentences with an 18-year parole ineligibility period.

On appeal, the Court of Appeal dismissed the conviction appeal but allowed the sentence appeal.

The Court held that the stringent Anthony-Cook test for departing from joint submissions does not apply to joint recommendations made after a contested trial.

Finding the 18-year period demonstrably unfit due to the trial judge's failure to properly weigh the appellant's youth, intoxication, immediate remorse, and the systemic impacts of colonization, the Court reduced the parole ineligibility period to 13 years.

The appellant, Seargeant Picard Incorporated (SPI), appealed a "boomerang" summary judgment order that found the respondents' (Saxbergs') action for breach of a construction contract was not statute-barred.

SPI argued the motion judge erred in the discoverability analysis and in granting the boomerang order.

The Court of Appeal dismissed the appeal, finding no reversible error in the discoverability analysis, particularly regarding the application of the "appropriate means" test under the Limitations Act, 2002, and upheld the boomerang order given the parties' agreement and the thoroughness of the motion judge's review.

This appeal concerned a dispute between a mother and her daughter and son-in-law over beneficial ownership interests in two residential properties.

The trial judge found that the mother beneficially owned one property via a resulting trust and held a 35.6% interest in the second property.

The appellants argued the trial judge misapprehended evidence regarding intentions for the first property and that there was an apprehension of bias due to the immediate oral judgment for the second.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings on resulting trust and property interests, and found no reasonable apprehension of bias, though it noted the immediate oral decision was not best practice.

This is a costs endorsement from the Court of Appeal for Ontario.

The parties settled the issue of costs for the appeal.

The appellant, Anna Barbiero, was ordered to pay the respondent, Dr. Sheldon Victor Pollack, $10,000 in costs, inclusive of disbursements and applicable taxes.

The appellant, Anna Barbiero, sought to overturn the dismissal of a 21-year-old certified class proceeding against Dr. Sheldon Victor Pollack for unlawfully injecting Liquid Injectable Silicone.

The motion judge dismissed the action for inordinate and inexcusable delay.

The Court of Appeal upheld the dismissal, emphasizing the need for a "culture shift" in civil justice to combat delay, finding the Langenecker approach to delay out of step with the Supreme Court of Canada's Hryniak decision.

The court found the 21-year delay inordinate and inexcusable, and the appellant failed to demonstrate error in the prejudice analysis or the exercise of discretion.

The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).

The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.

Costs were awarded against the appellant.

This is an appeal from a motion judge's order dismissing the appellant's action as an abuse of process, specifically for contravening s. 2(1) of the Solicitors Act by bringing an action within one month of delivering a bill without leave.

The appellant argued errors regarding the nature of retainer, procedural unfairness in dismissing an amendment motion, and reversal of burden of proof.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision, confirming the action was an abuse of process, and upholding the dismissal of the amendment motion due to lack of leave.