David M. Brown

The applicant, West Whitby Landowners Group Inc., sought leave to appeal a Divisional Court decision that dismissed their judicial review application against the Ontario Energy Board (OEB) and Elexicon Energy Inc. The Divisional Court had found it lacked jurisdiction over the OEB's opinion on cost allocation, deeming it not a statutory power of decision affecting legal rights, and that certiorari was unavailable.

The Court of Appeal granted leave to appeal, clarifying the test for leave to appeal from the Divisional Court.

The court emphasized that the key consideration for granting leave is the impact the decision will have on the development of Ontario's jurisprudence, particularly in administrative and public law, moving away from a rigid checklist approach.

The appellants, Enhanced Care Pharmacy and 2819826 Ontario Inc., appealed an order directing them to cease pharmacy operations in a condominium building.

The respondents, World Medpharm Inc., held an exclusive right to operate a pharmacy in the building, granted by an Exclusive Use Agreement and enforced by a Declaration.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the appellants were aware of the prohibition, the respondents had standing to enforce the declaration, and there was no basis to exercise discretion to relieve the appellants from compliance.

The court found no error in the application judge's rejection of arguments regarding the impact on the respondents' business or harm to patients.

The appellant appealed an application judge's order declaring a basement unit part of the premises leased by the respondent.

The original lease defined the premises as "the whole" and while an amended lease changed the rent calculation method, the definition of the premises did not change.

The appellant argued the new rent calculation implied the basement was excluded.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation that the rent calculation merely changed the method for the entire building, especially given the original landlord's knowledge of basement subletting and the illogical outcome of decreased space with increased rent.

This is an appeal from a family law trial decision concerning spousal support, child support, equalization, and unjust enrichment.

The appellant raised eight grounds of appeal, grouped into errors in income imputation for both parties, errors in equalization payment calculation (including business valuation and a marriage-date account receivable), and the dismissal of an unjust enrichment claim.

The Court of Appeal allowed the appeal in part, finding that the trial judge erred in disallowing a marriage-date deduction of $248,567 in the equalization calculation.

All other grounds of appeal, including those related to income imputation and the dismissal of the unjust enrichment claim, were dismissed.

The respondent's motion for fresh evidence was also dismissed, and no costs were awarded due to divided success.

The Kriesers appealed a trial judgment that dismissed their claims for construction deficiencies and breach of fiduciary duty, and granted judgment to the respondents for outstanding invoices.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's determination that the Kriesers breached the contract by withholding payments, which disentitled them to warranty claims, and that there was insufficient evidence for the remaining deficiency claims.

The court also upheld the finding that no fiduciary relationship existed between the parties, and affirmed the trial judge's cost award.

The appellant, Brian Kumar, brought a second appeal seeking to set aside a default order for support arrears, arguing that a Mareva injunction impacted his ability to pay.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the lower courts' consideration of the Mareva injunction.

Both the original hearing judge and the first appeal judge had expressly considered its impact, and the appellant had failed to rebut the statutory presumption regarding his ability to pay.

The appeal was dismissed with costs awarded to the respondent.

This is an appeal from a family proceeding where the appellant sought to overturn the motion judge's decision to terminate spousal and child support obligations for the respondent due to his retirement, and to increase her spousal support.

The Court of Appeal upheld the motion judge's findings that the respondent's retirement was reasonable, that spousal support should be terminated due to material change in circumstances and the appellant's improvident financial decisions, and that child support for the youngest child should end by August 2023.

The court also refused leave to appeal the costs award.

The moving defendants, 1171328 Ontario Ltd. and Living Properties Inc., brought a motion to dismiss the plaintiff's action for delay under Rule 24.01.

The action, arising from flooding incidents in 2013, was commenced in 2015, and no significant steps were taken by the plaintiff to advance it since 2018.

The court found the delay to be inordinate (7.5 years from commencement, 6 years of inactivity), inexcusable (no cogent explanation provided despite multiple opportunities), and prejudicial to the defendants (rebuttable presumption of prejudice not overcome, actual prejudice due to lost documents and unavailable witnesses).

The motion was granted, and the plaintiff's action was dismissed with costs.

The appellant tenant appealed a summary judgment ordering it to pay over $1.1 million in alleged profits earned from a commercial sublease to the respondent landlord.

The motion judge had interpreted the lease to preclude the tenant from deducting the rent it paid for unusable open-air space on the sublet floor, and found the claim was governed by the 6-year limitation period under the Real Property Limitations Act.

The Court of Appeal allowed the appeal, holding that the motion judge's interpretation ignored the factual matrix and resulted in a commercial absurdity.

The tenant was entitled to deduct the full rent paid for the floor, meaning it incurred a $2.6 million loss, not a profit.

The Court also held that the obligation to remit profit was not 'rent', and therefore the 2-year limitation period under the Limitations Act, 2002 applied.

This endorsement addresses the respondent's attempt to file a factum in an appeal that exceeded the prescribed length and included unauthorized schedules, leading to its refusal by court registry staff.

The judge, while affirming the registry's decision for non-compliance, granted the respondent leave to file the factum (after a minor reduction) due to the imminent appeal hearing.

To ensure procedural fairness, the appellant was also granted leave to file a reply factum of a specified length.

The judge also used the opportunity to advocate for a rule change to permit reply factums as of right in appeals.

The appellant, 2557904 Ontario Inc. (the stalking horse bidder), appealed a motion judge's order that dismissed the receiver's motion for an approval and vesting order (AVO) and instead approved the debtor's (1000093910 Ontario Inc.) motion to redeem a first mortgage.

The Court of Appeal found the motion judge erred by not ensuring 255 received compensation for costs thrown away and by granting provisional enforcement of the order after an appeal notice was filed.

The appeal was allowed in part, varying the order to require the debtor to pay $300,000 in compensation to 255 and setting aside the provisional execution.

The court also ordered that if the refinancing transaction does not close, the AVO for 255 will be granted.

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.

The appellant insurer appealed a decision that found it had a duty to pay defence costs for the respondents in underlying lawsuits.

The insurer had denied coverage based on alleged material misrepresentation in the insurance application regarding the source of financing for the respondents' real estate development companies.

The Court of Appeal found that the failure to disclose syndicated mortgages as the financing source constituted a material misrepresentation by omission, triggering an exclusion clause in the D&O insurance policies.

The appeal was allowed, and the insurer was declared to have no duty to pay defence costs and was entitled to recover previously advanced funds.

The plaintiff brought a motion to strike the defendants' Statement of Defence and dismiss their counterclaim due to repeated failures to attend examinations for discovery and comply with court orders over several years.

The court applied the common sense factors from Advanced Farm Technologies and found the defendants' non-compliance was knowing, intentional, and material to the litigation.

The motion was granted, the defendants' pleadings were struck, and they were noted in default, with costs awarded to the plaintiff.

The appellant, a police officer, appealed his conviction for breach of trust and his 18-month conditional sentence.

He had been acquitted of sexual assault involving the same complainant.

The appeal challenged the conviction on grounds of insufficient reasons, unreasonable verdict, and inconsistent verdicts, and the sentence on grounds of erroneous "double counting" of aggravating factors and insufficient reasons for rejecting a suspended sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding the trial judge's reasons sufficient, the verdict reasonable and reconcilable, and the sentence appropriate.

The Court of Appeal dismissed an appeal by Unit Precast (Breslau) Ltd. and a cross-appeal by Click+Clean GmbH.

Unit Precast appealed the striking out of its claims for conspiracy and intentional interference with contractual relations, and claims asserted personally against Lars Bergmann, arguing the motion judge erred in failing to recognize its business as part of RH20 North America Inc.'s.

Click+Clean GmbH cross-appealed the dismissal of its motion to stay the action in favour of arbitration, contending the motion judge erred in finding the arbitration agreement inoperative.

The Court of Appeal upheld the motion judge's decision, finding Unit Precast's claims were not adequately pleaded and that Click+Clean GmbH waived its right to arbitrate by seeking substantive relief (motion to strike) from the court.

The appellant, M.G., appealed his convictions for assault, uttering threats, and sexual assault causing bodily harm against his wife, and his three-year prison sentence.

The complainant had recanted her allegations prior to trial and again post-conviction, claiming hallucinations.

The Court of Appeal upheld the trial judge's credibility assessment, finding no palpable and overriding error in rejecting the recantation and accepting the complainant's earlier testimony.

The court also found no error in the trial judge's use of prior discreditable conduct evidence or in refusing to reopen the trial or declare a mistrial based on the post-conviction recantation.

On sentencing, the court found the three-year penitentiary sentence proportionate, consistent with jurisprudence for sexual assault involving penetration.

Both the conviction and sentence appeals were dismissed.

The defendant brought a motion to set aside a default judgment in a mortgage enforcement action.

The court dismissed the motion, finding that the defendant failed to move promptly, did not adequately explain the circumstances leading to the default, and lacked an arguable defence on the merits.

The court also noted that the mortgage had matured, rendering the proposed defence largely moot.

The appellant appealed convictions for four counts of sexual assault, one count of assault, and one count of forcible confinement, arguing the trial judge erred in assessing the complainant's credibility and reliability by treating memory gaps and inconsistencies as enhancing factors, and materially misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding the trial judge properly grappled with the difficulties in the complainant's evidence, provided rational explanations for her findings, and that her credibility findings were owed deference.

The appellant, a former high school teacher, appealed his conviction for sexual assault and sexual interference and sought leave to appeal his sentence.

The conviction stemmed from an incident with a former student.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's credibility analysis, including the permissible use of evidence regarding the appellant's breach of professional obligations.

The court also granted leave to appeal the sentence but dismissed the sentence appeal, affirming the 18-month custodial sentence and rejecting arguments that the trial judge erred in using good character as an aggravating factor or that the sentence was unfit.