David M. Brown

This endorsement addresses two procedural issues arising from the appellants' motion to adduce fresh evidence on appeal, specifically concerning an allegation of ineffective assistance of counsel.

The first issue involved the production of two recordings made by former counsel, which the appellants argued were inadmissible due to a breach of professional conduct rules.

The court affirmed that a breach of professional conduct rules does not automatically render evidence inadmissible in civil proceedings and ordered the production of the recordings, subject to conditions for their use.

The second issue concerned the standing of former counsel to file evidence and a factum.

The court granted former counsel limited leave to intervene as an added party, allowing them to file a responding factum on the specific issue of whether ineffective assistance of counsel is a valid ground of appeal in civil proceedings.

The appellant, a former nurse, appealed the dismissal of her motion for a declaration that her insurer (HIROC) owed her a duty to defend against multiple civil actions.

These underlying actions alleged the tort of intrusion upon seclusion, negligence, breach of statute, and breach of fiduciary duty, stemming from her unauthorized access of patient records to obtain narcotics.

The Court of Appeal upheld the motion judge's decision, finding no duty to defend.

The court affirmed that the tort of intrusion upon seclusion, whether intentional or reckless, involves conduct that is not "accidental" and thus falls outside the policy's definition of "occurrence" and within the intentional act exclusion.

The court also rejected the argument that denying coverage for intentional privacy breaches would nullify the policy, as it still covered negligent privacy breaches.

The appellant appealed his sentence of life imprisonment without the possibility of parole for 20 years for second-degree murder, which the trial judge ordered to be served consecutively to a previous parole ineligibility period for first-degree murder pursuant to s. 745.51 of the Criminal Code.

Following the Supreme Court of Canada's decision in R. v. Bissonnette, which struck down s. 745.51 as unconstitutional under s. 12 of the Charter, the Crown conceded the order could not stand.

The Court of Appeal allowed the sentence appeal to the limited extent of quashing the consecutive order, making the parole ineligibility periods run concurrently.

The appellant landlord sought to recover unpaid rent and damages from former residential tenants in Small Claims Court.

The claim was dismissed by the Small Claims Court and upheld by the Divisional Court for lack of jurisdiction, on the basis that the Landlord and Tenant Board (LTB) had exclusive jurisdiction.

The Court of Appeal allowed the appeal, holding that under the relevant provisions of the Residential Tenancies Act, 2006, the LTB's jurisdiction over such claims was contingent on the tenant being in possession of the rental unit.

Since the tenants had vacated, the LTB did not have jurisdiction, and the claims properly fell within the monetary jurisdiction of the Small Claims Court.

The appellants appealed the dismissal of their motion to certify a class action against Ontario for the early cancellation of the Basic Income Pilot Program.

The Court of Appeal allowed the appeal in part, finding that the certification judge erred by engaging in a merits-based analysis of the breach of contract claim rather than applying the 'plain and obvious' test under s. 5(1)(a) of the Class Proceedings Act.

However, the Court upheld the dismissal of the negligence, breach of undertaking, and Charter s. 7 claims, finding that the government's decision to cancel the program was a core policy decision immune from negligence liability and that the Charter claim failed to plead the requisite principles of fundamental justice.

The appellant, Siavash Taheri, appealed a judgment ordering him to pay the respondent, Sina Akhavan, over $2.4 million based on promissory notes.

Taheri argued the trial judge erred in finding two separate loans instead of one, and that the trial transcript quality prevented proper appellate review.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual and credibility findings, and that the transcript deficiencies did not impede review or cause a miscarriage of justice.

The respondent, KingSett Mortgage Corporation, moved to quash an appeal brought by 30 Roe Investments Corp. from an order appointing a receiver over nine condominium units. 30 Roe argued it had an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act and alternatively sought leave to appeal under s. 193(e).

The Court of Appeal granted the motion to quash, confirming that no appeal as of right exists from a receivership order under s. 193(c).

The Court also dismissed the motion for leave to appeal, finding the proposed appeal lacked merit, did not raise an issue of general importance, and would unduly hinder the receivership proceedings.

The appellant sought to overturn a trial decision regarding pension division, arguing the trial judge misinterpreted a separation agreement by awarding a current pension value instead of a fixed amount.

The Court of Appeal dismissed the appeal, finding the trial judge's interpretation reasonable and consistent with the parties' objective intention for a pro-rata share of the pension's actual present value, and rejected the appellant's attempt to introduce fresh evidence as an abuse of process.

The appellants, previously found in contempt of an injunction and fined $1 million, brought a motion to set aside the Registrar's order dismissing their appeal for delay and sought an extension of time to perfect the appeal.

They also sought to introduce a new ground of appeal alleging ineffective assistance of counsel, based on a misapplication of criminal practice directions to a civil proceeding.

The court granted the motion to set aside the dismissal and extend time, but imposed strict conditions, finding the ineffective assistance of counsel argument weak in a civil context.

The applicant, S.T., sought release pending the determination of his appeal from a sexual assault conviction and a 28-month penitentiary sentence.

The Court of Appeal for Ontario considered the criteria under s. 679(3) of the Criminal Code, specifically whether the appeal was frivolous, if the applicant would surrender, and if detention was necessary in the public interest.

The court found the appeal was not frivolous and that the applicant would surrender.

On the public interest criterion, balancing enforceability and reviewability, the court determined that the anticipated delay in hearing the appeal, relative to the sentence length, weighed in favour of release.

The court also addressed the suitability of an out-of-province surety, concluding that the Criminal Code's provisions for enforcing forfeiture orders (s. 771(3.1)) permit writs of fieri facias to be delivered to sheriffs in other provinces, thereby accepting the Vancouver-based brother as a suitable surety.

The application for release was granted, with bi-weekly reporting but no curfew.

The appellant, H.C., appealed his conviction for manslaughter by criminal negligence.

The conviction stemmed from the accidental shooting death of a friend, K.P., with the appellant's unsecured sawed-off shotgun.

The trial judge found that H.C.'s failure to safely store the weapon and ammunition was a significant contributing cause of K.P.'s death, despite the gun being loaded and fired by an unknown third party while H.C. was not present.

On appeal, H.C. argued that the loading and firing of the gun constituted intervening acts that severed the chain of causation.

The Court of Appeal dismissed the appeal, affirming the trial judge's application of causation principles from R. v. Maybin, finding that the intervening acts were reasonably foreseeable given the context of intoxication, reckless handling of the gun, and prior accidental discharge, and therefore did not break the chain of causation.

The appellant, Michael Laforme, appealed his conviction for second-degree murder and sought leave to appeal his sentence of life imprisonment with a 16-year period of parole ineligibility.

The conviction appeal alleged errors in the trial judge's jury charge, specifically regarding the understanding of legal principles, fairness, balance, and warnings about post-offence conduct evidence.

The sentence appeal argued that the trial judge failed to give meaningful effect to Gladue principles, resulting in an unduly harsh sentence.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding no reversible errors in the jury charge and affirming that the sentencing judge properly considered Gladue principles while balancing other relevant factors, including the brutality of the offence and the appellant's extensive criminal record.

The appellants, Alton Grant and Shaqwan Kawano, appealed their first-degree murder convictions.

The Court of Appeal found that the trial judge erred in instructing the jury on how to assess exculpatory eyewitness identification evidence, specifically regarding a key witness whose testimony arguably contradicted the Crown's theory of identity.

This error was deemed serious and not curable.

The court dismissed Grant's Charter s. 11(b) application for unreasonable delay and found the verdict against him was not unreasonable.

However, due to the misdirection on eyewitness identification, the appeals were allowed, and new trials were ordered for both appellants.

The appellant, Adonay Zekarias, appealed his conviction for second-degree murder and committing an indignity to a dead body.

The appeal challenged the trial judge's decisions regarding the admissibility of prior discreditable conduct evidence to establish motive, the reliance on inferences for motive, and the use of after-the-fact conduct to prove intent.

The appellant also raised Charter breaches but conceded them given the outcome.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's reasoning on motive or intent, and adjourned the sentence appeal.

A police services board and a detective appealed a trial judgment finding them liable for false arrest, negligent investigation, and malicious prosecution, with significant damages awarded to the plaintiff.

The plaintiff cross-appealed the costs award.

The Court of Appeal dismissed both the appeal, upholding the trial judge's findings on lack of reasonable and probable grounds and malice, and the cross-appeal, affirming the costs award.

Jeffery Smith, found not criminally responsible (NCR) for assault and uttering threats, appealed the Ontario Review Board's (ORB) decision to continue his conditional discharge.

The appellant sought an absolute discharge, arguing he no longer posed a significant public safety threat.

The ORB, and subsequently the Court of Appeal, found that despite a treating psychiatrist's opinion, other expert opinions and the appellant's history of non-compliance, lack of insight, and recent concerning behaviour (stunt driving and dishonesty) indicated a continued significant threat to public safety without ORB oversight.

The appeal was dismissed, affirming the conditional discharge.

The appellants, Ting Lin and Shuhao Shi, appealed their convictions for unlawful possession of a Class A precursor (GBL) for producing a controlled substance (GHB) and unlawfully possessing ketamine for trafficking.

They also sought leave to appeal their sentences of six years imprisonment.

The primary ground of appeal was the trial judge's alleged error in failing to instruct the jury on the defence of honest but mistaken belief that their activities were authorized.

The Court of Appeal dismissed the appeals, holding that the Crown is not required to prove an accused's knowledge that their possession was unauthorized, as this would amount to proving knowledge of the law, contrary to s. 19 of the Criminal Code and s. 48(2) of the Controlled Drugs and Substances Act.

The court found no air of reality to the mistake of fact defence based on the evidence.

Leave to appeal sentences was granted, but the appeals were dismissed as the sentences were not demonstrably unfit.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in assessing eyewitness identification evidence.

The appellant contended that the trial judge improperly treated a witness's testimony as recognition evidence, failed to adequately consider alleged tainting of identification, and erred by not self-instructing on cross-racial identification.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to recognition evidence, her treatment of alleged tainting from a name utterance and Facebook photo, or the absence of a specific self-instruction on cross-racial identification given the trial context and the nature of the recognition evidence.

The appellant, Georgian Properties Corporation, appealed a summary judgment that dismissed its negligence action against respondent lawyers as statute-barred.

The negligence claim stemmed from the lawyers' work on condominium disclosure documents, mortgages, and a promissory note, which were later found insufficient or oppressive by a lower court.

The motion judge had found the claim discoverable by July 7, 2017, when a judge declined to strike a factum alleging inadequate disclosure.

The Court of Appeal found the motion judge erred in holding that loss occurred when the condominium corporation refused payments, clarifying that loss in solicitor negligence cases turns on the validity or enforceability of documents, not mere non-payment by third parties.

The Court concluded that Georgian Properties did not have sufficient material facts to infer liability against the lawyers until later, given the unusual procedural history and their reasonable expectation of success on the debt instruments.

The appeal was allowed, and the limitation defence dismissed.

Nylene Canada Inc. appealed a wrongful dismissal damage award, arguing the trial judge erred in calculating the reasonable notice period by including pre-retirement service and by exceeding a 24-month maximum.

The Court of Appeal affirmed the trial judge's findings that the "retirement/re-hiring" was solely for pension access and did not constitute a break in service.

The court also upheld the 26-month notice period, finding it justified by the employee's unique circumstances, including long tenure, specialized skills, age, and difficulty finding new employment.

The appeal was dismissed.