David M. Brown

The appellants appealed a trial judgment that dismissed their action against GlaxoSmithKline (GSK), alleging that an H1N1 vaccine manufactured by GSK caused their five-year-old daughter's death.

The appeal raised issues concerning GSK's duty to warn (including the learned intermediary rule), its post-marketing commitments, the inference of negligence from circumstantial evidence, and costs.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that GSK adequately warned the learned intermediary (the physician), met its post-marketing obligations, and that the appellants failed to prove negligence or causation on a balance of probabilities.

The court also upheld the trial judge's discretionary costs award.

The appellant appealed her conviction for dangerous driving.

The Crown conceded that the trial judge relied on inadmissible hearsay to find that the appellant was the driver of the tractor trailer involved in the collision.

As there was no other admissible evidence tying the appellant to the accident, the Court of Appeal allowed the appeal and entered an acquittal.

The Crown appealed the Stage One and Stage Two decisions regarding the interpretation of the Robinson-Huron and Robinson-Superior Treaties of 1850.

The trial judge found that the Treaties' augmentation clause imposed a mandatory obligation on the Crown to increase the perpetual annuities if the economic circumstances of the ceded territories warranted it, without a hard cap of $4 per person.

The Court of Appeal unanimously upheld the trial judge's conclusion that the Crown has an obligation under the honour of the Crown to diligently implement the augmentation promise and that its discretion is not unfettered.

The Court unanimously set aside the trial judge's finding of an ad hoc fiduciary duty and her specific remedial directives regarding a 'fair share' of net resource revenues.

The Court also unanimously dismissed the Crown's limitations defence.

The Court split on the standard of review for historical treaties and whether the trial judge made extricable errors of law in her interpretation, but the majority upheld her core interpretation of the augmentation clause.

This is a costs endorsement following an appeal where the respondent (N.) was entirely successful.

The respondent sought full indemnity costs of $99,500, reflecting a reduction from actual time incurred.

The appellant (F.) argued for each party to bear their own costs or for a reduced award, citing excessiveness and limited means.

The Court of Appeal found no special circumstances to warrant either full indemnity costs or no costs, ordering the appellant to pay the respondent $50,000 in all-inclusive costs, consistent with costs following the result and reasonable expectations.

The Court of Appeal for Ontario issued a costs endorsement following an appeal brought by the Debtor, Wayne Biggar.

The Court found that Mr. Biggar's appeal was brought to the wrong court and constituted an obvious delay tactic.

As a result, the Creditors, Jack Pinder, Victor Dusik, and Innotech Safety Solutions Inc., were awarded substantial indemnity costs fixed at $11,500, inclusive of disbursements and applicable taxes, payable by Mr. Biggar within five days.

The appellant, Blaze Box, brought a motion before the Court of Appeal seeking an extension of time to perfect his appeal of a lower court order (the "Third Conway Order") that required him to vacate an estate property.

He also requested the release of estate documents, a process to mortgage the property to pay out his siblings' shares, and a stay of the Third Conway Order.

The court dismissed the motion, finding no reasonable explanation for the appellant's delay in perfecting the appeal and no meritorious grounds for the appeal itself, particularly as previous unappealed orders had struck his notice of objection to the will and directed the issuance of a certificate of appointment of estate trustee.

The court concluded that the appellant had no proprietary interest in the property and that his actions were delaying the estate's administration.

The applicant, Andrew Campbell, sought bail pending appeal after being convicted of kidnapping, pointing a firearm, and assault causing bodily harm, and sentenced to seven years' imprisonment.

The Crown opposed the application, arguing that his detention was necessary in the public interest.

The court assessed the public safety, reviewability, and enforceability interests.

While the applicant's amended release plan addressed public safety concerns, the court found that the enforceability interest significantly outweighed the reviewability interest, as the grounds of appeal did not "clearly surpass" the minimal "not frivolous" standard, and the offences were very serious.

The applicant's delay in bringing the application and unwillingness to commit to a prompt appeal perfection date also weighed against release.

The application for bail pending appeal was dismissed.

The appellant, Microsoft Canada Inc., appealed a trial decision that awarded the respondent, a former employee, unvested stock awards after his termination without cause.

The trial judge had found the termination provisions in the Stock Award Agreement unenforceable because they were "harsh and oppressive" and not brought to the respondent's attention.

The Court of Appeal allowed the appeal, finding that the trial judge erred in concluding the respondent received no notice, as the respondent had expressly agreed to the terms for 16 years by clicking an acceptance box, despite consciously choosing not to read the agreement.

The moving parties, who had commenced an action alleging fraudulent conveyance and seeking a certificate of pending litigation (CPL), appealed the dismissal of their CPL motion.

They brought two appeals (to Divisional Court and Court of Appeal) and two motions in the Court of Appeal: one to determine jurisdiction (final vs. interlocutory order) and another for an interim CPL under s. 134(2) of the Courts of Justice Act.

The single motion judge declined to rule on the interim CPL, citing reservations about jurisdiction given the pending determination by a panel.

The judge adjourned the interim CPL motion to be heard concurrently with the jurisdiction motion on an expedited basis and extended the appeal perfection date.

The judge also commented on the systemic confusion regarding appeal routes in Ontario.

The appellant, King Square Limited (KSL), appealed a trial judgment that found it liable to pay further commissions to the respondent mortgage broker, OMJ Mortgage Capital Inc. (OMJ), for additional loan advances obtained from Firm Capital Corporation (FCC).

KSL argued these were new loans made outside the commission agreement's term.

The Court of Appeal, applying a deferential standard of review to contract interpretation, upheld the trial judge's finding that the additional advances were not new loans but rather further advances under the original loan commitment, which was secured during the currency of the commission agreement.

The court found the trial judge's interpretation commercially reasonable and dismissed the appeal.

This appeal arose from a failed business venture to revive a bankrupt manufacturing company, involving a secured loan and asset transfer via a Quitclaim Deed.

The Court of Appeal heard two appeals: one concerning the enforceability of the Quitclaim Deed for asset transfer, and another regarding compensation for a former operator based on unjust enrichment.

The Court dismissed the appeal concerning the assets, affirming the Quitclaim's unenforceability due to lack of certainty.

However, it allowed the appeal regarding the former operator's salary, finding that unjust enrichment was not established and that the corporate veil could not be pierced to hold the appellant company liable for work done for a subsidiary.

The Court of Appeal for Ontario dismissed the appellant's appeal and subsequently issued a costs endorsement.

The appellant conceded that the respondent was entitled to costs.

The court determined that this was not an exceptional case warranting full indemnity costs and awarded the respondent $5,000 in costs, inclusive of disbursements and applicable taxes.

The appellants appealed a summary judgment dismissing their action concerning a helicopter acquisition and operation.

The Court of Appeal upheld the motion judge's decision, finding that the initial agreements (Letter of Intent and July Letter Agreement) lacked sufficient material terms to constitute enforceable contracts for the "Buy-in Claim" particularly given the absence of a "definitive agreement" for co-ownership.

The court also dismissed other breach of contract claims (Aircraft Management Agreement and Internal Cost Claims) because the appellants failed to adduce evidence particularizing or supporting damages on the summary judgment motion.

The appellant challenged a trial judge's decision that the parties' religious marriage ceremony in Tennessee was a valid marriage under s. 31 of Ontario's Marriage Act.

The appeal raised questions about whether s. 31 applies to marriages solemnized outside Ontario and to purely religious ceremonies where no steps were taken to obtain a licence or register the marriage.

The Court of Appeal dismissed the appeal, affirming that s. 31 can validate marriages solemnized outside Ontario if the parties intended to create a formally binding legal marriage and did not deliberately fail to comply with legal requirements.

The court emphasized the public policy favoring marriage validity and found the parties' subjective belief and subsequent conduct supported the trial judge's finding of intent to comply.

The appellant, Steve Maynard, appealed the Superior Court's dismissal of his application to quash five municipal by-laws.

The application judge had found that the challenge to the by-laws, based on their alleged inconsistency with a provincial policy statement and non-conformity with an official plan, fell within the exclusive jurisdiction of the Local Planning Appeal Tribunal (LPAT), now the Ontario Land Tribunal.

The Court of Appeal affirmed this decision, holding that it was plain and obvious that the LPAT (or its successor) had exclusive jurisdiction over such matters under the Planning Act.

The appeal was dismissed, and costs were awarded to the respondent.

This endorsement concerns a request to reconsider a costs disposition made on July 27, 2021.

The moving party for the reconsideration (respondents in the underlying appeal) had their costs submissions filed late and not forwarded to the panel.

The court reviewed the submissions but found no reason to vary the original costs order, confirming the previous disposition.

The respondents (creditors) moved to quash an appeal brought by the appellant (debtor) from a garnishment order, arguing that the order was interlocutory and therefore not appealable to the Court of Appeal.

The Court of Appeal agreed, finding that the garnishment order was an interlocutory step in an ongoing oppression action, not a final disposition of the parties' rights or a discrete proceeding.

Consequently, the Court lacked jurisdiction to hear the appeal, which properly lay with the Divisional Court.

The appeal was quashed.

The appellant mother travelled to Ontario from Dubai with her two children for a visit, but subsequently informed the respondent father that she would not return.

The father commenced proceedings in Ontario seeking a return order under s. 40 of the Children's Law Reform Act.

The trial judge declined jurisdiction under ss. 22 and 23 of the Act, ordered the children returned to Dubai, and dismissed the mother's constitutional challenges to s. 40(3).

The Court of Appeal dismissed the mother's appeal, finding no palpable and overriding error in the trial judge's assessment of the risk of serious harm under s. 23, and upholding the constitutionality of the return order provision under both division of powers and the Charter.

The appellant, Forest Meadows Developments Inc., appealed an order dismissing its application for a declaration that the respondent, Narges Shahrasebi, breached an Agreement for Purchase and Sale (APS).

The core issue was whether the respondent had represented that she would not be able to close on the extended closing date of October 29, 2019, which the appellant argued constituted anticipatory breach.

The Court of Appeal upheld the application judge's finding of fact that no such representation was made, and therefore, there was no anticipatory breach or reasonable reliance by the appellant.

The appeal was dismissed.

The appellant sought a panel review of a chambers judge's order dismissing his motion for an extension of time to appeal, and the respondent moved to dismiss the appeal as frivolous, vexatious, and an abuse of process.

The underlying application, dismissed by the lower court, involved unsubstantiated claims of organized crime and personal sabotage.

The Court of Appeal, finding no error in the chambers judge's discretionary decision, affirmed that the appeal was clearly frivolous, vexatious, and an abuse of process, dismissing the panel review request and allowing the motion to dismiss the appeal.