David M. Brown

The applicant, Lo-Ming Lum, brought two motions before the Court of Appeal for Ontario.

These motions arose from an earlier action she initiated, which was dismissed as frivolous and vexatious by the Superior Court, with an order barring her from further proceedings without leave.

The motions sought to set aside an order by a single Divisional Court judge and to obtain leave to appeal another interlocutory order.

The Court of Appeal dismissed both motions, affirming that appeals from a single Divisional Court judge lie to a panel of the Divisional Court, not the Court of Appeal.

The court also issued an order under Rule 2.1 of the Rules of Civil Procedure, requiring the applicant to obtain leave from a single judge of the Court of Appeal before taking any further steps or proceedings related to this action in that court, citing her disregard for prior orders and procedural misuse.

The applicant, J.J., sought a second bail pending appeal after his initial bail was revoked due to new charges, including firearms and drug offences, and breaches of his recognizance.

The court considered the public interest criterion under s. 679(3)(c) of the Criminal Code, focusing on public safety.

Despite a strict proposed bail plan involving new sureties and GPS monitoring, the court found a substantial likelihood that the applicant would re-offend, given his history of non-compliance and the nature of the new charges.

The court also considered the merits of the appeal and the COVID-19 pandemic but found these factors did not outweigh the public safety risk.

The application for bail pending appeal was dismissed.

The plaintiff, Catalyst Capital Group Inc., appealed a motion judge's decision to strike out several of its claims against Dundee Kilmer Developments Limited Partnership (DKD), Infrastructure Ontario (IO), and the Crown.

The claims arose from Catalyst's exclusion from financing the 2015 Pan/ParaPan American Games Athletes' Village project.

The Court of Appeal allowed the appeal in part, reinstating Catalyst's claims against DKD for breach of a funding term sheet, breach of fiduciary duty, and unjust enrichment/quantum meruit.

However, the court upheld the striking of unjust enrichment/quantum meruit claims against IO and the Crown, the public law duty claim against IO and the Crown, and the misrepresentation claim against the Crown, finding them either statute-barred, lacking direct benefit, or precluded by statutory immunity.

The appellant, a commercial tenant, commenced a Superior Court action against its former landlord and another tenant for breach of contract and various torts.

The motion judge struck the claim as an abuse of process because the issues were substantially the same as two small claims actions the appellant had already commenced against the respondents.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the actions were substantially the same and constituted an abuse of process.

The court also upheld the motion judge's award of substantial indemnity costs.

The insurer appealed a trial judgment that awarded the insured household and attendant care expenses for a pre-judgment period, regardless of whether they were actually incurred.

The Court of Appeal found the trial judge erred by not applying the statutory definition of "incurred" under s. 3(7)(e) of the SABS-2010 and by misapprehending evidence regarding the insurer's delay in assessing benefits for the purpose of deeming expenses under s. 3(8).

The Court allowed the appeal, set aside the relevant parts of the trial judgment, and ordered a new trial on the issue of whether the insurer unreasonably withheld or delayed payments.

The appellant challenged the Toronto Police Services' (TPS) authority to impose bag searches as a condition of entry into Allan Gardens during the 2010 G20 summit, alleging tortious conduct and Charter breaches.

The Court of Appeal found that the TPS lacked legal authority, as agents of the City under the Trespass to Property Act, to create such a condition.

The court held that the police conduct infringed the appellant's freedom of expression (s. 2(b)), right against arbitrary detention (s. 9), and right against unreasonable search and seizure (s. 8) under the Charter.

The appeal was allowed, and the appellant was awarded modest Charter damages.

This appeal concerns a dispute between two insurers, AIG Insurance Company of Canada and Lloyd's Underwriters, regarding their respective duties to defend the City of Markham in a personal injury action.

The application judge had found AIG solely responsible for the defence and denied AIG the right to participate in the defence.

The Court of Appeal allowed the appeal, holding that both AIG and Lloyd's had a concurrent duty to defend the City, and must share defence costs equally, subject to reallocation at the conclusion of the action.

Furthermore, the Court found that AIG has a right to participate in the defence, including retaining and instructing counsel, provided a "split file" protocol with additional safeguards is implemented to manage potential conflicts of interest.

The defendant, Cozy Corner Bedding Inc., appealed a summary judgment that dismissed its counterclaim for equitable set-off and granted judgment to the plaintiff, 3113736 Canada Ltd. (Valle Foam), for unpaid invoices.

Cozy Corner alleged overcharging due to a price-fixing scheme.

The motion judge had ruled the counterclaim was barred by a class action release and lacked sufficient evidence.

The Court of Appeal allowed the appeal, finding that an exception in the class action release preserved the right to pursue claims in insolvency proceedings, including equitable set-off under s. 21 of the CCAA.

The Court also found the motion judge erred in concluding there was insufficient evidence of overcharging, noting Valle Foam's own admissions regarding overcharge percentages.

The summary judgment was set aside, and the matter was directed to trial.

The appellant, J.C.J., appealed his convictions for sexual assault and incest, and his five-year sentence for incest (concurrent three years for sexual assault).

The conviction appeal was based on ineffective assistance of counsel, specifically regarding a failed s. 11(b) application and inadequate preparation for testimony.

The Court of Appeal dismissed the conviction appeal, finding no prejudice.

The sentence appeal argued errors in applying s. 155(2) as a guide, failing to properly weigh mitigating factors, considering defence conduct as aggravating, and imposing an s. 161 order for an over-18 complainant.

The Court dismissed the sentence appeal, except for setting aside the s. 161 order, which the Crown conceded was inapplicable.

This appeal concerned the interpretation of a separation agreement's reconciliation clause and its effect on a pension waiver.

The parties had separated, entered into an agreement, reconciled for almost nine years, and then separated again.

The separation agreement stipulated that it would become void if reconciliation lasted more than 90 days, with an exception for "any payment, conveyance or act" made or done pursuant to the agreement.

The trial judge found the wife's specific release of her rights to the husband's Canada Post pension survived reconciliation.

The Court of Appeal found the trial judge erred by misapprehending the evidence (no payment was made for the pension entitlement) and by failing to give effect to the express voiding term of the reconciliation clause.

The Court clarified that the pension release was voided, entitling the wife to a share of the pension from the date of marriage.

The appellants (Roustan/RINC) appealed a trial decision that found Grant Thornton LLP (GT) breached a contract but awarded no damages for share losses, dismissing their action.

GT cross-appealed on costs.

The Court of Appeal dismissed both the appeal, finding no palpable and overriding errors in the trial judge's causation analysis or refusal to award various damages (lost opportunity, share loss, special, nominal), and the cross-appeal, upholding the trial judge's costs award as not an error in principle or plainly wrong.

This is an appeal from the dismissal of a claim for negligence and breach of contract against insurance brokers.

The appellant, owner of a commercial property destroyed by fire, alleged the brokers failed to secure adequate reconstruction cost insurance, leading to underinsurance and a co-insurance penalty.

The trial judge found the brokers discharged their duty by advising the appellant to obtain expert appraisal for reconstruction costs and that the appellant was a sophisticated client.

The Court of Appeal upheld the trial judge's decision, finding no error in the application of the duty of care or contractual obligations, and no reasonable apprehension of bias.

The appeal was dismissed.

The appellant appealed a motion judge's order, raising two grounds: an alleged error in granting an adjournment for cross-examination, and an alleged error in balancing competing interests under s. 137.1(4)(b) of the Courts of Justice Act.

The Court of Appeal dismissed the appeal, affirming the motion judge's discretion regarding the adjournment and the balancing of interests, and clarifying the interpretation of the 60-day time limit for hearing motions under s. 137.2(2).

The appellants, Pamella and Gregory Radwan, appealed a summary judgment granted to The Energy Credit Union Limited concerning a defaulted "on demand" mortgage.

The Radwans argued the motion judge failed to address their evidence regarding standard charge terms, Pamella Radwan's sophistication, and issues of credibility, and that the reasons were inadequate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's findings that the Radwans signed a valid "on demand" agreement, benefited from the funds, and defaulted.

The court affirmed that the lender was not obligated to insist on independent legal advice and that the reasons adequately explained the decision.

The appellant appealed an order regarding cross-examination on his affidavit in a bankruptcy proceeding.

The respondent confirmed it would not attempt to cross-examine the appellant before the disposition of the bankruptcy trial, rendering the appeal moot.

The Court of Appeal declined to exercise its discretion to hear the moot appeal and dismissed it, awarding costs to the respondent.

The appellant appealed a summary judgment dismissing her action against the City of Toronto and its representative regarding property tax arrears.

The motion judge had found her claims were statute-barred and that the City was entitled to collect the arrears.

On appeal, the appellant argued the motion judge erred in his conclusions, demonstrated a reasonable apprehension of bias, and should not have granted summary judgment while her claim against her former solicitor remained outstanding.

The Court of Appeal dismissed the appeal, finding no errors, no reasonable apprehension of bias, and no risk of conflicting judgments.

The appellant, Stoney Creek Centre Inc., appealed a judgment requiring it to pay the $3 million face amount of a mortgage, plus interest, to discharge it, rather than the approximately $2.7 million actually advanced.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the mortgage financing agreement.

The court held that the parties had expressly agreed that the borrower would bear the lender's financing costs, making the full face value of the mortgage payable.

This appeal concerned the application of the two-year limitation period under the Limitations Act, 2002, to an oppression remedy claim under the Ontario Business Corporations Act.

The shareholder (appellant) advanced three claims based on discrete oppressive acts: failure to distribute profits, unauthorized sale/transfer of business, and unauthorized corporate dissolution.

The motion judge summarily dismissed the entire action as statute-barred.

The Court of Appeal held that while the first two claims were discoverable more than two years before the action was commenced and thus statute-barred, the claim regarding the unauthorized corporate dissolution was not, as it occurred and was discovered later.

The appeal was allowed in part, permitting the corporate dissolution claim to proceed.

The appellants appealed a trial judgment finding them liable for damages due to abandoning a 10-year commercial lease.

The appeal focused on two grounds: whether Kevin O’Neill was personally liable as a tenant and whether outdoor storage was a permitted use of the premises, justifying abandonment.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the lease was unambiguous regarding Kevin O'Neill's personal liability and that the appellants failed to demonstrate an implied term for outdoor storage or a mutual mistake regarding permitted uses.

The appellants, whose children were previously made Crown wards, commenced a civil action against various individuals and organizations involved in the child protection proceedings.

Two defendants requested the dismissal of the action under Rule 2.1.01 as frivolous and vexatious.

The motion judge dismissed the action against those two defendants, and subsequently amended her reasons to dismiss the action against all defendants without giving the appellants notice.

The Court of Appeal upheld the dismissal against the two moving defendants, finding the action was an abuse of process attempting to relitigate the child protection proceedings.

However, the Court allowed the appeal regarding the other defendants, holding that the motion judge committed a procedural error by dismissing the action against them without providing notice and an opportunity to make submissions as required by Rule 2.1.01.