David M. Brown

The appellant lawyer and his firm appealed an order directing the assessment of 14 accounts rendered to the respondent over an 11-year period.

The Court of Appeal allowed the appeal in part, finding that the application judge erred in finding 'special circumstances' under s. 4 of the Solicitors Act to justify assessing the older, previously paid accounts.

The assessment was limited to the final three accounts, which were in dispute regarding the allocation of settlement funds, and the respondent's corporation was added as a client on the assessment.

The appellant appealed an order requiring it to reimburse the respondents for legal fees incurred in collecting on promissory notes.

The appellant argued that the fees were related to a global settlement of disputes rather than collection, and that the application judge erred in awarding full indemnity costs.

The Court of Appeal dismissed the appeal, finding ample evidence that the enforcement efforts were inextricably linked to the settlement discussions, and that the application judge properly reduced the claimed fees by a third to arrive at a reasonable amount as required by the general security agreement.

The Crown appealed acquittals and sentence arising from offences involving the sale of sexual services by underage females.

The Court of Appeal held that the trial judge erred by defining 'procures' and 'harbours' too narrowly when directing the jury and granting a directed verdict, which materially affected several acquittals.

New trials were ordered on multiple counts.

The court also found significant errors in principle in sentencing, including minimizing the inherent exploitation of the offences, overemphasizing bail conditions, and improperly relying on media publicity to satisfy deterrence.

While upholding declarations that certain mandatory minimum sentences were unconstitutional under s. 12 of the Charter, the court substituted a global sentence of 15 months’ imprisonment followed by probation.

The appellant appealed his convictions for possession of steroids and cocaine for the purpose of trafficking, and possession of proceeds of crime.

At trial, the Crown introduced extensive evidence suggesting the appellant was associated with the Hells Angels and was a target of a large-scale organized crime investigation.

The Crown also introduced intercepted communications portraying the appellant as knowledgeable about the criminal justice system, and anecdotal opinion evidence from a police officer regarding steroid stockpiling.

The Court of Appeal held that the gang affiliation and intercept evidence constituted highly prejudicial bad character evidence that was irrelevant to the material issues.

Furthermore, the police officer's anecdotal testimony exceeded the proper bounds of opinion evidence, effectively reversing the burden of proof.

The Court declined to apply the curative proviso, finding the cumulative errors rendered the trial unfair.

The appeal was allowed and a new trial ordered.

The appellant employer terminated the respondent's employment and made several termination-related payments, including a mistaken payment in November 2018.

The parties subsequently attended mediation and executed minutes of settlement requiring the employer to pay $150,000 'in addition to amounts already paid'.

The employer's representatives at mediation were unaware of the November payment and later sought to deduct it from the settlement amount.

The motion judge enforced the settlement, finding no ambiguity and no fraud by the respondent regarding the employer's unilateral mistake.

The Court of Appeal dismissed the appeal, holding that the subjective, uncommunicated knowledge of the employer's representatives did not form part of the factual matrix for contractual interpretation.

The appellant appealed his convictions for firearms and drug offences, and his sentence of ten years' imprisonment.

At trial, the Crown improperly cross-examined the appellant regarding his brother's immunity under s. 13 of the Charter.

The trial judge stopped the questioning, refused a stay of proceedings, and provided a strong limiting instruction to the jury.

The Court of Appeal upheld the trial judge's decision, finding the limiting instruction sufficient to cure any prejudice.

The sentence appeal was also dismissed, as the trial judge did not err in rejecting hearsay evidence of historical sexual abuse as a mitigating factor.

Commercial landlord appealed an order limiting its entitlement to draw on a $2.5 million standby letter of credit posted by a bankrupt tenant as security for a lease.

The motion judge held that, following the trustee’s disclaimer of the lease, the landlord could draw only the statutory preferred claim for three months’ accelerated rent under the Bankruptcy and Insolvency Act.

The Court of Appeal held that the autonomy principle governing letters of credit meant the issuing bank’s obligation to honour complying presentations was independent of the underlying lease and not limited by insolvency law absent fraud.

The court also found the motion judge erred in interpreting the lease to require a reduction in the letter of credit because the tenant had not “promptly” paid rent at all times as required.

The landlord was therefore entitled to draw the full amount of the letter of credit.

The appellant pleaded guilty to aggravated sexual assault after randomly attacking and raping a stranger walking home at night.

He was sentenced to 12 years' imprisonment.

On appeal, the appellant argued the sentencing judge misapplied Gladue principles by finding his Indigenous heritage moot due to the severity of the offence, and failed to apply principles of proportionality and restraint.

The Court of Appeal found that while the sentencing judge erred in his Gladue analysis, the 12-year sentence remained fit given the egregious nature of the random attack and the need to prioritize denunciation and deterrence.

The moving party sought to set aside an order requiring it to post $100,000 each in security for costs for the responding parties on an appeal.

The motion judge had found the appeal had a low prospect of success and the moving party failed to prove it lacked access to funds despite apparent impecuniosity.

The Court of Appeal dismissed the motion, finding no error in principle in the motion judge's discretionary order and refusing to admit fresh evidence that was available at the time of the original motion.

The appellant appealed his convictions for break and enter, mischief, criminal harassment, uttering threats, and breach of probation, arising from incidents involving his former girlfriend.

The Court of Appeal dismissed the conviction appeals, finding the trial judge's factual conclusions reasonable and supported by strong circumstantial evidence, including text messages.

However, the Court allowed the appeal in part to correct a Kienapple error, setting aside a duplicative conviction for uttering threats based on the same evidence.

The Court also set aside the victim surcharges as unconstitutional.

The applicant, convicted of first-degree murder, brought a motion within his appeal for an order directing investigating officers and a forensic scientist to attend for cross-examination.

He sought to support a fresh evidence application regarding DNA records, alleging that the National DNA Data Bank possessed undisclosed original DNA profile data.

The Court of Appeal dismissed the application, finding that the applicant failed to establish a reasonable possibility that further relevant material existed, as required by the Trotta and Chaplin tests.

The defendant in a personal injury action brought a motion to stay an order striking out the parties' jury notices pending her appeal.

The trial was scheduled to proceed before a judge alone due to COVID-19 pandemic delays affecting civil jury trials.

Applying the RJR-MacDonald test, the motion judge found that the appeal lacked merit as the order was likely interlocutory, the defendant would not suffer irreparable harm, and the balance of convenience overwhelmingly favoured proceeding with the long-delayed trial.

The motion for a stay was dismissed.

Following the dismissal of the appellant's appeal regarding the enforcement of letters of request, the parties made written submissions on costs.

The respondents sought costs, with one respondent relying on offers to settle the appeal.

The Court of Appeal ordered all parties to bear their own costs, noting that the underlying litigation in Florida was ongoing and that Rule 49 of the Rules of Civil Procedure generally does not apply to appeals.

The court found this was not a rare occasion where an offer to settle an appeal should be taken into account.

The respondent, an inmate in protective custody, was severely assaulted by other inmates.

The trial judge found the Crown liable in negligence for failing to protect him, assessing damages at an agreed $1.5 million.

The Crown appealed, arguing the trial judge erred by finding institution-level liability rather than identifying specific negligent acts by individual employees, as required by the Proceedings Against the Crown Act.

The Court of Appeal allowed the appeal and ordered a new trial, concluding that the trial judge's reasons were conclusory, failed to properly articulate the legal test for Crown liability, and were insufficient to permit meaningful appellate review.

The moving party sought an extension of time to file a notice of motion for leave to appeal a $40,000 costs order.

The responding party opposed the motion, arguing that the Court of Appeal lacked jurisdiction because the appeal properly belonged before the Divisional Court, either because the underlying order was interlocutory or because the costs order was for less than $50,000.

The single motion judge concluded that decisions on jurisdictional questions must generally be made by a panel of three judges and directed the motion to be placed before a panel.

The appellant appealed an order giving effect to two Letters of Request from a Florida court in a defamation and conspiracy action regarding a hate mail campaign.

The appellant, an Ontario resident, argued his evidence was otherwise obtainable, the requests were unduly burdensome, lacked specificity, and resulted from a flawed foreign process.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's application of the Friction Division factors and his conclusion that the evidence was relevant, necessary, and not otherwise obtainable.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in assessing DNA and witness evidence, and alleging ineffective assistance of trial counsel.

The Crown cross-appealed the suspended sentence and two years' probation, arguing a custodial sentence was required.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error in the trial judge's factual findings and concluding that trial counsel's tactical decisions did not cause a miscarriage of justice.

The Court also dismissed the Crown's sentence appeal, holding that while the suspended sentence was exceptionally lenient, it was not demonstrably unfit given the offender's youth, lack of prior record, and strong community support.

The Court of Appeal previously awarded Traders General Insurance Company its costs of a panel review motion and invited written submissions on quantum.

Traders sought partial indemnity costs of $24,158.71, while the responding parties argued for $7,500 due to duplication of work from the initial motion.

The Court agreed there was some duplication and fixed costs at $15,000 inclusive of disbursements and taxes.

The moving party sought leave to appeal an order requiring it to pay $874,107.08 to the responding party.

The funds had been mistakenly paid to the moving party by a third-party customer of the responding party.

The moving party argued it was entitled to retain the funds as a set-off against debts owed by the responding party, who was under CCAA protection.

The Court of Appeal refused leave to appeal, finding the proposed appeal was not prima facie meritorious because set-off did not constitute a juristic reason to retain mistakenly paid funds under the unjust enrichment framework.

The parties were in a romantic relationship for nearly 14 years but maintained separate residences.

The trial judge found they were spouses under the Family Law Act and awarded the respondent indefinite spousal support based on the Rule of 65, along with substantial indemnity costs.

On appeal, the Court of Appeal upheld the finding that the parties were spouses, noting that maintaining separate residences does not preclude a finding of cohabitation.

However, the Court found the trial judge erred in concluding the parties began cohabiting in the first five months of their relationship, meaning the Rule of 65 was not met.

Spousal support was reduced to a 10-year duration.

The costs award was also reduced to partial indemnity, as the appellant's legal position and financial disclosure were deemed reasonable.