David M. Brown

The Court of Appeal for Ontario issued a costs endorsement following its decision on an appeal concerning leave to proceed under the Ontario Securities Act.

The appellants had challenged the motion judge's denial of leave for certain alleged financial misrepresentations.

The Court of Appeal found the motion judge erred in principle on this central issue, remitting it for redetermination.

As the appellants were substantially successful on the appeal, they were awarded $60,000 in all-inclusive costs for the appeal.

The costs of the original motion for leave were deferred to the judge determining the remitted issue.

The appellants appealed the dismissal of their action on a motion for summary judgment, which was found to be statute-barred under the Limitations Act, 2002.

The motion judge concluded the claim was discovered by August 21, 2015, more than two years before the action was commenced.

The Court of Appeal upheld the motion judge's decision, finding no error in the interpretation or application of the discoverability principle under s. 5 of the Limitations Act, 2002, specifically regarding when a proceeding is an "appropriate means to seek to remedy" a loss.

The court rejected the argument that the appropriateness of litigation includes an assessment of its prospect of success or the ability to marshal evidence.

This is a costs endorsement following an appeal where the respondent, Bruce Boudreau, was entirely successful in opposing the appellant Randi Jakobsen's appeal.

The court ordered Ms. Jakobsen to pay Mr. Boudreau his costs of the appeal, fixed at $14,000, inclusive of disbursements and applicable taxes.

AIG Insurance Company of Canada sought substantial indemnity costs against The Corporation of the City of Markham and Lloyd’s Underwriters following a motion for reconsideration of an appeal decision.

The court found the reconsideration motion to be entirely without merit, having put AIG to needless expense.

Consequently, the court awarded AIG $13,000 in substantial indemnity costs, inclusive of disbursements and taxes, payable forthwith.

The appellant appealed a decision upholding the election of the respondents' board of directors and officers at an annual general meeting.

The appellant argued that as the incumbent Vice-Chair, he was automatically entitled to become Chair, and that the election of the respondent Chair was irregular due to nomination and membership admission procedures.

The Court of Appeal dismissed the appeal, finding the application judge's holistic interpretation of the poorly drafted bylaws and historical governance practices was reasonable and free from palpable and overriding error.

The appellant appealed a trial judge's order requiring her to pay spousal support to the respondent, whom the trial judge found was her common-law spouse.

The Court of Appeal upheld the trial judge's finding that the parties were spouses under the Family Law Act, despite the trial judge's erroneous reference to the Divorce Act criteria for spousal support.

The court found this error not material due to significant overlap in statutory criteria and ample evidence supporting the respondent's economic dependence.

The appeal regarding spousal support and trial costs was dismissed.

The applicant sought leave to appeal his conviction and sentence for willfully promoting hatred against identifiable groups (Jews and women) and bail pending appeal.

The Court of Appeal dismissed the application for leave to appeal, finding that the proposed grounds, including challenges to the videoconference hearing, findings on the elements of the offences, and application of aggravating factors, did not raise questions of law alone or lacked sufficient merit/significance to the administration of justice.

Consequently, the application for bail pending appeal was also dismissed.

The applicant, James Jahkyn Grant, sought release pending his appeal from a conviction for importing cocaine.

The Crown opposed on grounds of the proposed appeal's lack of merit, the applicant's likelihood of not surrendering into custody, and public interest considerations.

The court dismissed the application, finding that the applicant failed to establish that his appeal was not frivolous, that he would surrender into custody, or that his detention was not necessary in the public interest.

The court noted the seriousness of the offence and the applicant's history of non-compliance and challenging court authority.

The appellant, Ahmed Bouragba, sought to transfer an appeal from a Master's order from the Divisional Court to the Court of Appeal, arguing that the appeal lay to the Court of Appeal under s. 6(1)(d) of the Courts of Justice Act as an order made under s. 137.1.

The Court of Appeal dismissed the transfer motion, holding that an order made under s. 137.1 must be made by a "judge" of the Superior Court of Justice, and a Master is not a judge.

Therefore, the appeal did not lie to the Court of Appeal, and the proper forum was the Divisional Court.

The appellant mother appealed a relocation order that granted primary residence of the children to the father in Lindsay, Ontario.

The mother argued the trial judge erred by bifurcating the trial (relocation before custody), misapplied relocation law, and failed to accommodate her disability.

The Court of Appeal dismissed the appeal, finding the bifurcation was appropriate for the children's best interests, the relocation decision was well-supported by evidence and consistent with legal principles, and there was no error in refusing adjournments or accommodating the appellant.

The court emphasized the children's thriving in their new environment.

The appellant, Zafar Ahmad, appealed the dismissal of his motion to set aside a default order that directed him to pay spousal support, designate the respondent, Maria Zia, as a life insurance beneficiary, and make an equalization payment.

Ahmad argued the default order was made without jurisdiction due to a prior arbitration or that the arbitration award gave rise to a res judicata defence.

The Court of Appeal dismissed the appeal, finding no evidence that the parties agreed to arbitrate these specific claims under Ontario law, and that an arbitration agreement does not preclude court jurisdiction if a stay motion is not brought.

The court also found the res judicata doctrine inapplicable as the arbitration award did not address equalization or support.

The motion judge's discretionary decision, based on Ahmad's failure to promptly respond, provide an adequate explanation, establish an arguable case, provide financial disclosure, and lack of clean hands, was upheld.

This appeal was adjourned to facilitate a settlement between the parties.

A settlement was reached, and the parties agreed that the appeal should be allowed and the original judgment varied in accordance with a draft order.

The Court of Appeal was satisfied that the terms of the proposed order reflected the correct disposition of the appeal on the merits, and consequently, the appeal was allowed as per the filed draft order.

The respondents (moving parties on the motion) sought reconsideration of a Court of Appeal decision rendered 15 months prior.

The motion was dismissed as lacking merit, with the court emphasizing the principle of finality.

Reconsideration is rarely granted, especially when the moving party has already unsuccessfully sought leave to appeal to the Supreme Court of Canada on the same arguments, which was dismissed.

The applicant, Arthur Rule, sought leave to appeal his 22-month custodial sentence for possessing and accessing child pornography and bail pending appeal.

The Court of Appeal for Ontario granted both applications.

The sentencing judge had misstated the law regarding the availability of conditional sentences for these offences and failed to adequately consider a conditional sentence as an alternative to incarceration.

Furthermore, the applicant demonstrated unnecessary hardship due to severe medical conditions requiring complex daily care that would be difficult to manage in custody.

The court found the appeal had sufficient merit and that detention was not necessary in the public interest, as there were no public safety or flight concerns.

The appellant, diagnosed with schizophrenia, appealed a Superior Court decision affirming a Community Treatment Order (CTO) issued by the respondent psychiatrist.

The appeal challenged the Consent and Capacity Board's finding of the appellant's incapacity to consent to treatment and the validity of the CTO.

The Court of Appeal upheld the lower court's decision, finding no palpable and overriding error in the Board's application of the two-part capacity test under the Health Care Consent Act, as interpreted by Starson v. Swayze, and its assessment of the CTO's compliance with the Mental Health Act.

The court affirmed that the appellant failed to appreciate the reasonably foreseeable consequences of not receiving treatment, despite his history of non-compliance and subsequent deterioration.

The appellants, homeowners Rinku Deswal and Tajinder Oberoi, appealed a summary judgment dismissing their action against ADT Security Services following a robbery.

They argued ADT was negligent for not advising them of a cellular backup option and that the limitation of liability clause in their Residential Alarm Services Agreement was unenforceable.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that ADT had no duty to advise on other services, especially given the appellants' sophistication and their failure to read the contract.

The court also upheld the enforceability of the limitation of liability clause, applying the Tercon framework and public policy considerations that alarm service providers are not insurers.

The appellant, Feisal Noor, sought release pending appeal of his convictions for gun-related charges.

The Crown opposed, arguing the appeal grounds were frivolous and detention was necessary in the public interest.

The court found the appeal was not frivolous, citing recent Supreme Court jurisprudence on Charter ss. 8 and 9 issues related to police detentions and gun seizures.

Balancing enforceability and reviewability interests, and considering the appellant's compliance with prior release terms and family sureties, the court granted bail pending appeal, with a strict condition for expeditious perfection of the appeal.

This is a remand from the Supreme Court of Canada to the Ontario Court of Appeal concerning the award of incentive plan-related damages in a wrongful dismissal action.

The Supreme Court remanded the case for disposition in accordance with Matthews v. Ocean Nutrition Canada Ltd. The majority of the Court of Appeal affirmed its original decision, finding that the employee, Mr. Manastersky, was not entitled to additional damages beyond his vested interest in the Mezzanine Carried Interest Plan (CIP) because the plan's terms did not entitle him to annual payments or future investment periods.

The court held that RBC Dominion Securities Inc. had paid Mr. Manastersky all to which he was entitled at common law.

Feldman J.A. dissented, arguing that the trial judge's original decision, which awarded additional damages, correctly applied the legal principles affirmed in Matthews, emphasizing the requirement for "absolutely clear and unambiguous" language to limit an employee's common law right to compensation.

The appellant, D.R., sought release pending appeal from convictions for three counts of sexual assault, uttering a death threat, assault, and assault with a weapon.

The primary grounds of appeal concerned the trial judge's assessment of the credibility of the appellant and the complainant.

The court reviewed the trial judge's detailed reasons for rejecting the appellant's credibility and accepting the complainant's, finding that the trial judge had engaged in specific analysis of the sexual assault counts and properly considered the complainant's continued relationship with the appellant.

The court concluded that the appellant's credibility-based grounds of appeal did not meet the "not frivolous" threshold required for release pending appeal.

This is a costs endorsement following an appeal where the respondent Receiver, representing Hillmount Capital Inc., was successful.

The Court of Appeal for Ontario ordered the appellants, Celine and Richard Pizale, to pay the Receiver partial indemnity costs, fixed at $3,000, inclusive of disbursements and applicable taxes.