David M. Brown

The plaintiffs, judgment creditors of the defendant Harold Spring, brought a motion seeking an order for examination in aid of execution of non-parties and production of documents from non-parties under Rule 60.18(6), and leave to issue a notice of garnishment more than six years after judgment under Rule 60.08(2).

The court granted the motion, finding that the plaintiffs had demonstrated difficulty in enforcing the judgments and had exhausted available means, and that the non-parties likely possessed relevant information.

The court also found that the plaintiffs had not waived their rights regarding garnishment despite the delay, and that the garnishee might be indebted to the defendant.

The appellant, found not criminally responsible (NCR) due to mental illness, appealed the Ontario Review Board's (ORB) disposition maintaining his detention at a high-security psychiatric facility.

The appellant argued the ORB failed to consider all statutory factors under s. 672.54 of the Criminal Code, recognize a treatment impasse, and exercise its inquisitorial and supervisory powers.

The Court of Appeal dismissed the appeal, finding the ORB's decision reasonable.

The court held that the ORB properly considered all relevant factors, reasonably declined to find a treatment impasse given the facility's ongoing efforts to find treatment options, and adequately fulfilled its supervisory responsibilities.

The appellant, A.I.B., appealed his conviction for assault and sexual assault, and the dismissal of his application to re-open the trial.

The appeal challenged the trial judge's application of the R. v. W.(D.) credibility analysis and the refusal to re-open the trial based on new legal developments and alleged inconsistencies in the victim impact statement.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's W.(D.) analysis or the application of the Palmer test for re-opening the trial.

The appellants appealed an approval and vesting order that authorized a receiver to sell a property in receivership.

One of the appellants, a second mortgagee, sought to redeem the first mortgage or be recognized as a successful creditor bidder, arguing an absolute right to redeem under the Mortgages Act.

The Court of Appeal dismissed the appeal, affirming the motions judge's decision that the right to redeem is qualified once a court-approved sales process has been undertaken in a receivership.

The court emphasized balancing the right to redeem against the integrity of the court-supervised sales process, finding no error in the motions judge's conclusion that the sales process was fair and the balance favoured its integrity.

The appellant, Jeffrey Visscher, appealed his convictions for assault and breaking and entering.

He abandoned the ground of appeal regarding unreasonable verdicts and proceeded solely on the ground that the trial judge made a legal error in assessing the credibility of the complainant and another witness.

The Court of Appeal found no such legal error and dismissed the appeal, upholding the convictions.

The appellant, J.W., appealed a global sentence of nine years' imprisonment for sexual assault, uttering a death threat, and unlawful confinement.

The appeal raised three grounds: the sentencing judge erred by increasing the sentence due to anticipated programming needs, miscalculating pre-sentence custody, and refusing enhanced pre-sentence credit for time spent at Providence Care Hospital.

The Court of Appeal found a miscalculation of 22 days in pre-sentence custody, allowing the appeal to that extent (33 additional days credit).

However, the court dismissed the appeal on the other two grounds, affirming that the nine-year sentence was fit and that the refusal of enhanced credit for Providence was a proper exercise of discretion, given the appellant's delays and the conditions at Providence.

This is a sentence appeal from a conviction for manslaughter.

The appellant challenged his 8.5-year sentence on two grounds: the trial judge's treatment of his pre-trial offer to plead guilty to manslaughter, and the consideration of his pre-trial in-custody misconduct as an aggravating factor.

The Court of Appeal found that the trial judge erred in principle by characterizing the defence as an attempt to mislead and by treating post-offence misconduct as an aggravating factor rather than negating a mitigating one.

However, the Court concluded that these errors had no practical impact on the overall sentence, which was deemed fit given the appellant's participation in an armed home invasion with knowledge of firearm use.

The appeal was dismissed.

The appellant, convicted of aggravated assault and other offences, appealed his dangerous offender designation and indeterminate sentence.

The sentencing judge had found him to be a dangerous offender under s. 753(1) of the Criminal Code, concluding he posed a high likelihood of harmful recidivism and that his conduct was intractable, despite his treating psychiatrist's opinion that his illnesses were treatable.

The appellant also argued that inconsistent evidence regarding his Not Criminally Responsible (NCR) status warranted a new assessment.

The Court of Appeal dismissed the appeal, upholding the dangerous offender designation and indeterminate sentence, finding no error in the sentencing judge's assessment of intractability based on the appellant's history of non-compliance, lack of insight, and continued assaultive behaviour.

The Court also rejected the argument for a new NCR assessment, clarifying that the psychiatrist's statement was not inconsistent with the prior NCR assessment.

This is a Crown appeal from sentence.

The respondent was convicted of possession of a loaded prohibited firearm and two counts of breaching weapons prohibition orders.

The sentencing judge imposed a six-year sentence, with concurrent sentences for the breach offences, and failed to impose a mandatory lifetime firearm prohibition.

The Crown argued the sentence was unfit, concurrent sentences were an error, and aggravating factors were not given effect.

The Court of Appeal granted leave, imposed the mandatory lifetime firearm prohibition, and ordered the sentences for the breach offences to be served consecutively to each other and to the firearm offence sentence, correcting errors in principle.

The appellant appealed his sentence for child abduction contrary to a parenting order and disobeying a court order.

He argued the sentencing judge erred in applying the R. v. Proulx analysis for a conditional sentence, treated an essential element of the offence as an aggravating factor, failed to account for R. v. Duncan credit for onerous presentence custody conditions, and imposed a demonstrably unfit sentence.

The Court of Appeal dismissed the appeal, upholding the custodial sentence, finding no reversible error in the sentencing judge's approach to deterrence, denunciation, and the application of presentence credit principles, despite acknowledging a minor error regarding aggravating factors.

The applicants sought to set aside a motion judge's decision that dismissed their motion to extend time to appeal an earlier order.

The motion judge had found prompt intention but serious prejudice to respondents due to the applicant being judgment-proof with over $1,000,000 in outstanding costs, and a lack of merit to the proposed appeal, deeming it part of an abuse of process.

The Court of Appeal panel, reviewing under s. 7(5) of the Courts of Justice Act, upheld the motion judge's discretionary decision, finding no error in the application of the legal test for extension of time and noting the appeal was patently unmeritorious.

The panel dismissed the motion and awarded costs to the respondents.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant, Assignment Credit Corp., was ordered to pay costs to several respondents (MCAP Financial Corporation, Dorr Capital Corporation, and Cherniak Law Professional Corporation).

The court rejected the appellant's argument that prior costs agreements should stand, as they were made before the appellant's non-disclosure of a material fact (that the Mesbur Judgment was obtained on consent) was revealed.

This non-disclosure, which impacted the second issue of the appeal, justified an elevated costs award on a solicitor-client basis for the affected respondents.

The 167 respondents were denied costs due to their own failure to disclose the consent judgment and their underlying financial obligations.

The proposed defendant, Trisan, brought a motion to compel the plaintiff's lawyer to answer questions refused during cross-examination on an affidavit filed in support of a motion to amend the statement of claim.

The refused questions related to instructions the lawyer received from the plaintiff regarding the timing of adding Trisan as a defendant.

The court dismissed the motion, finding the questions were properly refused on the basis of solicitor-client privilege and that the plaintiff's post-discovery litigation strategy was irrelevant to the application of the limitation period under the Limitations Act, 2002.

The defendants brought a motion for security for costs against the corporate plaintiffs under Rules 56.01(1)(d) and (e).

The court found the defendants failed to meet their initial onus to show good reason to believe the plaintiffs had insufficient assets in Ontario.

The defendants relied on inadmissible hearsay evidence from an articling student and argued that the plaintiffs' failure to respond to a demand for evidence of assets was sufficient to meet the onus.

The court rejected this argument, holding that an unanswered demand does not reverse the onus onto the plaintiff.

The motion was dismissed.

The appellant, Dalien Ilunga, appealed his conviction for sexual assault and failure to comply with a probation order, advancing three grounds: the trial judge erred in shifting the burden of proof, provided insufficient reasons, and trial counsel rendered ineffective assistance.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the burden of proof or sufficiency of reasons.

Regarding ineffective assistance, the court found trial counsel did not deprive the appellant of his right to testify and that counsel's overall strategy and advice, despite some flawed understanding of legal principles regarding prior convictions and utterances, fell within the range of reasonable professional assistance.

These are supplementary reasons to an appeal previously dismissed, addressing the calculation of losses for investors.

The Court of Appeal accepted the appellants' submissions that interest should be calculated on a simple, annual basis, consistent with the "Fixed Interest Rate" clause in the Loan Participation Agreements.

Consequently, the amounts awarded to the respondents in the original judgment were varied to reflect this simple interest calculation.

The appellants sought title to a portion of municipal parkland that their predecessors had fenced off and exclusively used since at least 1971.

The application judge dismissed the claim, finding that municipal parkland is immune to adverse possession.

The Court of Appeal dismissed the appeal, holding that while there is no absolute common law immunity, municipal parkland is presumptively unavailable for adverse possession under the 'public benefit' test unless the municipality has waived its rights or acquiesced to the possession.

The dissenting judge would have allowed the appeal, arguing that the Real Property Limitations Act provides a complete code that does not exempt municipal parkland.

This is an appeal management endorsement concerning an appeal and cross-appeal from a class action certification decision.

The underlying action alleges gross negligence by the Government of Ontario regarding COVID-19 deaths and illnesses in long-term care homes.

The Court of Appeal addressed requests for extended factum lengths and oral hearing time.

The judge granted leave for longer factums (50 pages for the main appeal, 30 for the cross-appeal) and scheduled a two-day oral hearing.

The endorsement also provided guidance on the effective use and timely delivery of Oral Hearing Compendiums.

This appeal concerned the priority of various creditors in a garnishment hearing involving payments owed by the City of St. Catharines and Region of Niagara to 1671379 Ontario Inc. under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, holding a perfected General Security Agreement (GSA), and Assignment Credit Corp. (ACC), asserting priority based on an assigned consent judgment (Mesbur Judgment).

The Court of Appeal affirmed the motion judge's finding that MCAP's perfected GSA had priority for its shortfall judgment over ACC's claim, finding no inconsistency in MCAP's position.

However, the court remitted the issue of priorities among ACC and other unsecured judgment creditors to the motion judge, as it was revealed post-hearing that the Mesbur Judgment was a consent judgment, a fact not disclosed to the motion judge or other creditors, raising new legal arguments regarding the Personal Property Security Act and the Assignments and Preferences Act.

The plaintiffs brought a motion to amend their Statement of Claim to add two proposed defendants, United Cleaning Services Limited and Orb Services, in a slip and fall action.

United Cleaning opposed the motion, arguing the limitation period had expired.

The court applied the two-stage test from Morrison v. Barzo, finding that the plaintiffs provided a reasonable explanation for not discovering the claims against the proposed defendants earlier, as Loblaws had given no indication of third-party cleaning contractors.

The motion was granted, and substantial indemnity costs were awarded to the plaintiffs against United Cleaning.