David M. Brown

This endorsement addresses the costs of a contempt motion brought by McDonald's against North Elgin Centre Inc. (NEC), and NEC's cross-motion for declaratory relief.

Both the motion and cross-motion were dismissed.

NEC, as the successful party, sought substantial indemnity costs of $153,368.

McDonald's argued for $15,000.

The court found NEC substantially successful but awarded partial indemnity costs of $37,000, significantly reducing the amount claimed.

The reduction was based on the unreasonableness of NEC's claimed hours, the failure to delegate work to lower-cost timekeepers, and the fact that McDonald's prepared most of the voluminous record.

The court also found NEC's offer to settle did not comply with Rule 49 and thus did not attract substantial indemnity cost consequences.

The defendants moved to discharge a certificate of pending litigation (CPL) granted ex parte against a specific property.

The court found that the plaintiffs breached their duty of full and fair disclosure on the ex parte motion by failing to present evidence supporting their claim to an interest in the subject property and by making unsubstantiated assertions.

Furthermore, the court held that there was no triable issue regarding the plaintiffs' interest in the property.

The motion was granted and the CPL against the property was discharged.

The defendant law firm in a solicitor's negligence action brought a motion under Rules 30.03 and 30.04 for the production of unredacted copies of the plaintiffs' legal invoices and docket entries.

The plaintiffs had redacted entries relating to advice given on the current action, claiming privilege.

The court dismissed the motion, finding that the redacted entries were not relevant to the action, were expressly excluded from the parties' discovery plan waiver, and were presumptively protected by solicitor-client and litigation privilege.

The defendant, UAP Inc., brought a motion seeking security for costs against the corporate plaintiff, Mountainwide Auto Parts Ltd., under Rule 56.01(1)(d).

The court found that UAP's unexplained delay of more than five years in bringing the motion was fatal.

The court also noted that UAP did not seek security against the individual plaintiffs and possessed significant financial resources, concluding the motion was tactical rather than a genuine effort to secure costs.

The motion was dismissed.

The plaintiffs, purchasers of pre-construction condominium and freehold units, brought motions for certificates of pending litigation (CPLs) against the development property after the original developer became insolvent and transferred the property to a new developer.

The purchase agreements contained non-registration clauses prohibiting the registration of CPLs.

The court found that while there was a triable issue regarding an interest in land based on constructive trust, the non-registration clauses and the equitable factors from Dhunna—including the lack of uniqueness of the property, the adequacy of damages, and the prejudice to new innocent purchasers—weighed heavily against granting the CPLs.

The motions were dismissed.

The plaintiffs brought a motion under Rules 30.04(2) and 30.04(5) for the production and inspection of unredacted board minutes referred to in the defendant's Statement of Defence and Counterclaim.

The defendant had produced heavily redacted versions, arguing the redacted portions were irrelevant and commercially sensitive.

The court granted the motion, finding that the entire document was deemed relevant by being referenced in the pleadings, and the defendant failed to meet its onus of demonstrating that the redacted information was irrelevant or that its production to the plaintiffs would cause harm.

The appellant appealed his conviction for firearms offences and breaches, and his sentence.

The conviction appeal argued the trial judge failed to adequately address significant discrepancies between police officers' evidence.

The sentence appeal argued the trial judge failed to give credit for pre-sentence incarceration conditions related to the COVID-19 pandemic.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's assessment of evidence or in the sentencing judge's discretion regarding enhanced credit for COVID-19 conditions.

The appellant appealed his conviction for the first degree murder of his wife.

He argued the trial judge erred by not leaving the partial defence of provocation with the jury, and by leaving first degree murder based on planning and deliberation and constructive murder with the jury.

The Court of Appeal found no error regarding provocation or planning and deliberation.

However, the Court held the trial judge erred in leaving constructive murder for the jury, as the murder was completed before the subsequent unlawful confinement of a witness, breaking the required causal connection.

A new trial was ordered for the first degree murder charge.

The Appellants sought an order to vacate Certificates of Pending Litigation (CPLs) and a writ of seizure and sale registered against their properties, pending the determination of their appeals from a judgment and a CPL order.

They proposed paying the judgment amount into court as security to facilitate the sale of the properties to a third party.

The Respondent opposed, arguing that prior agreements required the full sale proceeds to be paid into court and that the Appellants had failed to disclose the sale agreement earlier.

The court found that the prior agreements contemplated a sale before the final determination of damages and that the Appellants' liability was now fixed by the judgment.

The motion was granted, allowing the CPLs and writ to be vacated upon the Appellants paying $1,750,000 into court as reasonable security, balancing the parties' interests.

The father sought a stay of a trial judgment that permitted the mother to relocate to California with their children and ordered the father to pay retroactive and ongoing child and spousal support.

The motion judge dismissed the father's request for a stay, finding that he failed to demonstrate a serious question for appeal or that the children would suffer irreparable harm if the stay was not granted.

The court emphasized that granting a stay would radically alter the children's established living arrangements and was not in their best interests, especially given the father's thin record and the trial judge's detailed findings.

This is an appeal management endorsement providing directions for an appeal concerning the determination of the Missanabie Cree population for Treaty 9 reserve entitlement.

The endorsement addresses issues with exhibit books, factum lengths, electronic document formats, a timetable for materials, motions for leave to intervene, oral hearing compendia, and sets a hearing length and date.

It also provides general notice for intervention motions.

The self-represented individual defendant brought a motion to set aside a noting in default entered against him and two corporate defendants in an action for breach of a commercial equipment lease.

The court proceeded only with the individual defendant's motion, as he lacked leave to represent the corporations.

The court dismissed the motion, finding the defendant failed to demonstrate a bona fide intention to defend the claim, provided no explanation for his failure to defend or his two-year delay in bringing the motion, and failed to show an arguable defence on the merits.

The respondent sought substantial indemnity costs following the dismissal of the appellants' appeal from a summary judgment on mortgage defaults.

The respondent relied on standard charge terms in the mortgages providing for substantial indemnity costs.

The appellants argued the costs were excessive and alleged improper conduct by the respondent.

The Court of Appeal found no basis to depart from the contractual terms and awarded the respondent its claimed costs of $27,289.50.

The court also ordered that the funds previously paid into court as security for costs be paid out to the respondent to satisfy the appeal costs and partially satisfy the unpaid trial costs.

The defendant brought a motion to compel the plaintiff to produce backup documents for all invoices delivered since 2017, prior to examinations for discovery.

The plaintiff sued for unpaid invoices, and the defendant counterclaimed for alleged overbilling on past invoices.

The court dismissed the motion, finding the request overbroad because it included invoices based on pre-approved prices rather than time and materials.

The court also found the request disproportionate under Rule 29.2.03, as the time and expense required to produce the documents outweighed the likely benefit, especially given the $50,000 value of the counterclaim.

This appeal concerns the interpretation of primary and excess directors' liability insurance policies, specifically regarding the availability and premium calculation of an Optional Extension Period (OEP) coverage.

The appellant, Assicurazioni Generali S.p.A. (excess insurer), argued that its Excess Policy did not include an OEP option or, alternatively, that the premium should be US$1.5 million.

The respondent, Cronos Group Inc. (insured), contended the OEP was incorporated via a "follow form" clause and the premium should be twice the basic premium of the Excess Policy, consistent with the primary policy's ratio.

The Court of Appeal dismissed the appeal, affirming the application judge's finding that the Excess Policy included the OEP option and that its premium was twice the basic premium, based on a holistic interpretation of the policies and commercial reasonableness.

The plaintiffs brought a motion seeking leave to amend their statement of claim more than seven years after commencing an action for nuisance and trespass against their neighbour.

The proposed amendments sought to add a new plaintiff, new causes of action relating to windows and a venting system, and new heads of damages.

The court denied leave for the substantive amendments, finding that they asserted new causes of action that were statute-barred and that the unexplained seven-year delay gave rise to a presumption of non-compensable prejudice to the defendant.

Leave was granted only for minor, unopposed amendments.

This is an appeal from a summary judgment dismissing the appellants' action as statute-barred.

The appellants, a former employee and his investment corporation, sued the respondents for breach of a post-retirement compensation agreement, claiming a permanent 3% interest in a partnership.

The motion judge found the claims statute-barred under the Limitations Act, 2002, ruling that a single breach with continuing consequences occurred, not a series of breaches giving rise to a rolling limitation period.

The motion judge also found the request for declaratory relief was, in substance, a claim for compensatory relief and therefore also statute-barred.

The Court of Appeal upheld the motion judge's decision, dismissing the appeal.

The appellant, Behrouz Salehi, brought a motion under Rule 59.06(2)(a) of the Rules of Civil Procedure to set aside a 2016 Court of Appeal decision that had dismissed his appeal.

The motion was based on newly discovered facts related to his negligence claim against the Association of Professional Engineers of Ontario concerning his licensing application.

The Court of Appeal dismissed the motion, ruling that it lacked jurisdiction to entertain such a motion where the underlying order was affirmed on appeal; such motions must be brought before the Superior Court.

The plaintiff in a solicitor's negligence action brought a motion to strike out paragraphs of the defendants' Amended Statement of Defence that contained blanket denials.

The plaintiff argued that under Rules 25.06(1) and 25.07(3) of the Rules of Civil Procedure, the defendants were required to plead their own version of material facts for every allegation denied.

The court dismissed the motion, holding that a defendant is not required to plead a different version of facts for every denied allegation, and that the defendants' pleading, read as a whole, sufficiently defined the issues in dispute.

This appeal arose from the appellants' default under several mortgages and guarantees.

The appellants challenged the motion judge's decision to grant interest despite the respondent's concession of charging a criminal interest rate and failing to provide timely discharge statements, and disputed the calculation of amounts owing.

The Court of Appeal dismissed the appeals, affirming the motion judge's discretionary application of notional severance for the criminal interest rate and upholding the factual findings regarding the amounts advanced.

The court found no reversible error or basis for claims of Charter violations or judicial bias.