David M. Brown

The plaintiffs brought a motion for validation of service of the Fresh as Amended Statement of Claim and motion record on a defendant in the Netherlands, for leave to issue a Further Fresh as Amended Statement of Claim, and for an extension of time to serve it.

The motion was opposed by affiliated defendants.

The court granted leave to amend the claim, finding no withdrawal of an admission.

The court also granted an extension of time for service, finding no prejudice to the foreign defendant and a reasonable explanation for the delay.

The request for validation of service was denied, as the motion record was properly served under the Rules and the Hague Convention, and the extension of time for the claim was granted nunc pro tunc.

The appellants appealed a summary judgment dismissing their action against TD Canada Trust, arguing errors regarding the availability of summary judgment in civil jury actions, the exclusion of expert evidence, and procedural fairness.

The Court of Appeal dismissed the appeal, affirming that the Hryniak test for summary judgment applies equally to civil jury actions, the motion judge properly excluded the expert evidence, and the process was procedurally fair.

This is an appeal from a summary judgment holding appellants liable on guarantees related to a syndicated mortgage.

The Court of Appeal upheld the motion judge's finding that personal and corporate guarantees were incorporated by reference into the investment agreements, despite investor unawareness and limiting clauses, based on objective contractual interpretation and trustee disclosure duties.

However, the Court varied the damages calculation, ruling that the interest rates specified in the Loan Participation Agreements (10% or 12%) should apply, not the 18% rate from the Loan Commitment.

The appeal was dismissed on liability but allowed on the interest rate calculation.

This appeal addressed the standard of proof for establishing the existence of an arbitration agreement when seeking a stay of court proceedings under the International Commercial Arbitration Act, 2017.

The appellant argued for a balance of probabilities standard, while the motion judge applied an "arguable case" standard.

The Court of Appeal affirmed that, consistent with the Supreme Court of Canada's decision in Peace River Hydro Partners v. Petrowest Corp., the "arguable case" standard applies to the technical prerequisites for a mandatory stay, including the existence of an arbitration agreement.

The Court found no palpable and overriding error in the motion judge's conclusion that an arbitration agreement was arguably in existence based on the evidence.

The appeal was dismissed, and the stay of proceedings in favour of arbitration was upheld.

In a wrongful dismissal action, the Plaintiff sought a further affidavit of documents and a litigation timetable, while the Defendant brought a cross-motion for a sealing order or, alternatively, an order requiring the Plaintiff to provide notice before filing confidential materials.

The court denied the sealing order as premature but granted the Defendant's request for 30 days' notice before the Plaintiff files any designated confidential documents.

The Plaintiff's request for unredacted documents was granted, but broad requests for other staff's performance reviews and hours were denied.

The court declined to impose a litigation timetable, finding the Plaintiff largely responsible for delays.

Costs were awarded to the Defendant.

The appellant was convicted of manslaughter as a party to a common unlawful purpose under s. 21(2) of the Criminal Code, arising from a failed robbery attempt of an illegal gambling club where a co-perpetrator shot and killed one of the owners.

The appellant appealed his conviction, arguing that the trial judge erred in extending party liability, particularly given the shooter's possible motive of frustration or anger.

The Court of Appeal dismissed the appeal, affirming that the shooting was a reasonably foreseeable consequence of carrying out the common unlawful purpose, and that the specific mode or motive of harm does not negate foreseeability under s. 21(2).

The court-appointed receiver, KSV Restructuring Inc., moved to quash an appeal by the debtor, 30 Roe Investments Corp., from orders approving the sale of two condominium units. 30 Roe argued the units should be sold en bloc, not individually, and that the sales diminished the "Enterprise" value.

The Court of Appeal found no appeal as of right under BIA s. 193(a)-(c) as the appeal did not involve future rights, did not directly involve property value loss (as the sales were at market price and the en bloc argument was a collateral attack on prior unappealed orders), and was not likely to affect other similar cases.

The court also denied leave to appeal under BIA s. 193(e), finding the issue not of general importance, not prima facie meritorious, and unduly hindering the receivership.

The appeal was quashed, and leave to appeal denied.

This appeal concerned a dispute over a shared boundary between lakefront cottage properties and the location of a dock.

The trial judge found the boundary to be ambulatory, extending to the water's edge, and that the land under the dock was adversely possessed, but the dock could not impede riparian rights.

The Court of Appeal dismissed both the main appeal, which challenged the boundary determination and the application of accretion/avulsion principles, and the cross-appeal, which challenged the adverse possession finding.

The court found no reversible error in the trial judge's determination of the boundary based on grantor's intent and upheld the adverse possession finding, noting it was supported by evidence.

The appellant appealed a decision dismissing her motion for net arrears of child and spousal support and section 7 expenses, and granting the respondent's cross-motion to terminate all support.

The Court of Appeal emphasized the high degree of deference owed to family support decisions.

Finding no material error, serious misapprehension of evidence, or error of law in the motion judge's detailed analysis, the court dismissed the appeal.

The appellants appealed an order striking out their statement of defence and crossclaim and granting judgment against them for $49,628.11.

They argued the motion judge failed to give reasons for the decision.

The Court of Appeal dismissed the appeal, finding that the record clearly disclosed the basis for the order: the appellants failed to answer undertakings despite multiple opportunities and court orders, and failed to respond to the motion to strike.

The evidentiary record supported the judgment amount.

This is an appeal from a Superior Court decision regarding a mortgagee's attempt to take possession of a commercial property after default.

The appellants, mortgagees, attempted self-help possession by changing locks, which was met with resistance from the respondent, mortgagor.

The application judge dismissed the mortgagees' request for an order restraining the mortgagor and declaring them in possession, finding they did not act peaceably.

The Court of Appeal dismissed the appeal, affirming the application judge's factual findings and her application of the legal principles of peaceable possession, as clarified in Hume v. 11534599 Canada Corp., 2022 ONCA 575.

The court found no palpable and overriding error in the lower court's conclusion that the mortgagees failed to take peaceable possession.

The appellants appealed a trial judgment that required them to pay a real estate commission.

The primary issue at trial was whether Sandeep Jhutty had initialed an acknowledgement on a Buyer Representation Agreement, which the trial judge found he had.

On appeal, the appellants argued the trial judge erred by reversing the onus of proof and by finding the individual appellants jointly and severally liable without providing reasons.

The Court of Appeal dismissed the appeal, affirming that the standard of proof applies to the final evaluation of liability, not piecemeal, and that the joint and several liability was consistent with a prior consent order.

This is an appeal from an order granting possessory title by reason of adverse possession.

The appellant argued the trial judge erred in applying the inconsistent use test, claiming the title holder's long-term intention for future development created no inconsistency with the adverse possessor's residential use.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the relevant use of the title holder's land was commercial farming, which was inconsistent with the respondents' residential use.

The court also upheld the dismissal of the appellant's claim for damages related to a certificate of pending litigation and the award of punitive damages against the appellant for destroying the disputed property without warning.

The appellant appealed a disposition of the Ontario Review Board, arguing that the Board's reasons were inadequate and failed to consider evidence relating to his ADHD diagnosis, feelings of hopelessness, and history of childhood sexual abuse.

The Court of Appeal dismissed the appeal, finding that the Board's reasons were adequate when viewed in the context of the entire record.

The Court noted that the ADHD evidence was central to the hospital's position, which the Board accepted, and that the other evidence did not diminish the justification for the Board's order.

The appellant, Carmen DaSilva, appealed a lower court judgment that declared a transfer of her husband's one-half interest in a property to her as a transfer for undervalue, void against the trustee in bankruptcy, and set it aside.

The appeal raised three grounds: error in declaring the transfer at undervalue, error in finding the husband insolvent at the time of transfer, and error in finding an intention to defraud creditors.

The Court of Appeal dismissed all grounds, finding no palpable and overriding error in the application judge's findings regarding undervalue and insolvency, and noting that comments on intent were obiter.

The appellant obtained a judgment for unpaid commissions against Stonebrook Properties Inc. and registered a writ of seizure and sale against a condominium development property registered in Stonebrook's name.

The respondents, who were the beneficial owners of the property, successfully applied to have the writ lifted on the basis that Stonebrook held the property as a bare trustee.

The Court of Appeal dismissed the appellant's appeal, finding no palpable and overriding error in the application judge's conclusion that Stonebrook was a bare trustee with no independent discretion, meaning the property was not available to satisfy a judgment against it.

The appellant, Feng Wang, appealed an endorsement from the Superior Court of Justice which dismissed his allegations of immigration fraud, theft, and contempt against the respondent, Min Li, and her lawyer.

The motion judge found Wang's allegations baseless and vexatious, and ordered him to pay costs.

Min Li brought a motion to quash Wang's appeal.

The Court of Appeal granted the motion to quash, finding the appeal constituted an abuse of process as it sought to re-litigate factual findings and lacked legal merit.

The court also noted it lacked jurisdiction as the underlying order was interlocutory, not final, given ongoing proceedings.

This appeal concerned an order striking the appellant's pleadings in a family law application due to repeated non-compliance with financial disclosure orders.

The appellant argued the motion judge misinterpreted his position, failed to consider alternative remedies, and did not account for his personal circumstances.

The Court of Appeal dismissed the appeal, emphasizing the fundamental duty of financial disclosure in family law and finding that, given the appellant's persistent failure to comply, striking the pleadings was an appropriate and necessary remedy under the Family Law Rules.

The plaintiff in a wrongful dismissal action brought a motion to compel the corporate defendant to produce a specific employee, Salome Larios Ampuller, as its representative for examination for discovery.

The defendant objected, arguing the selected employee was inappropriate due to her subordinate role, lack of involvement in the termination decision, and potential for excessive undertakings.

The court, applying Rule 31.03(2) and relevant case law, found that the plaintiff had a prima facie right to select the representative and that Salome was sufficiently knowledgeable regarding the central issue of the alleged theft.

The court dismissed the defendant's objections, finding the selection was bona fide and not oppressive, and that requiring a different representative would prejudice the plaintiff.

The motion was granted, and costs were awarded to the plaintiff.

The defendant brought a motion for security for costs against the plaintiff under Rule 56.01(1)(d).

The plaintiff claimed approximately $417,000 for breach of contract, while the defendant counterclaimed for over $4.6 million.

The court dismissed the motion, finding that the plaintiff had sufficient assets in Ontario to cover a potential costs award.

Furthermore, the court held that an order for security for costs would not be just in the circumstances, given the inextricably linked and much larger counterclaim, the delay in bringing the motion, and its apparent tactical nature.