David M. Brown

This is an appeal from a Divisional Court decision that upheld a trial judge's refusal to enter judgment in accordance with a jury verdict in a medical malpractice case.

The jury found the defendant physicians negligent and that their negligence caused the plaintiff's severe disabilities.

The trial judge ordered a new trial, finding the jury's answers on causation insufficient.

The Court of Appeal allowed the appeal, holding that the trial judge erred in refusing to enter judgment.

The court emphasized the high standard for setting aside jury verdicts and the presumption that juries understand and apply judicial instructions, even if their answers are conclusory.

The judgment of $14.9 million in damages was reinstated.

The City of Toronto appealed a motion judge's decision that dismissed the City's summary judgment motion and granted reverse summary judgment to the plaintiffs, Robyn Graham and David Mitchell.

The original action stemmed from Ms. Graham tripping on a pothole, and the City argued the claim was barred due to late notice under the City of Toronto Act, 2006.

The motion judge found a reasonable excuse for the late notice and no prejudice to the City.

The Court of Appeal dismissed the City's appeal, affirming that the motion judge's grant of reverse summary judgment was procedurally fair and that her findings on reasonable excuse and lack of prejudice were supported by the evidence and applicable law.

The appellants appealed a decision refusing to remove the respondent's lawyer as her appointed appraiser in an insurance dispute arising from tornado damage.

The umpire had suspended the appraisal process due to concerns about the appraiser's dual role as counsel in an impending bad faith claim.

The Court of Appeal dismissed the appeal, holding that while the umpire must be impartial, the Insurance Act does not require party-appointed appraisers to be independent or disinterested.

The Court also clarified that the appraisal process is a collaborative valuation mechanism, not an administrative tribunal.

The appellant appealed the dismissal of its claim for breach of restrictive covenants in its contracts with the respondent independent contractors.

The trial judge had found the covenants were not brought to the attention of the respondents, were unenforceable, and that damages were not proven.

Because the appellant did not appeal the finding concerning damages, the Court of Appeal found no basis to set aside the trial judge's order and dismissed the appeal.

The appellants, Michael Taylor and The Manufacturers Life Insurance Company, appealed a judgment declining to enforce a settlement in a motor vehicle accident action.

The Court of Appeal found no error in principle or palpable and overriding error in the motion judge's exercise of discretion regarding the enforcement of a settlement under Rule 49.09.

The appeal was dismissed, and costs were awarded to the respondent.

The appellant appealed the Superior Court's dismissal of three of his actions under Rule 2.1.01 of the Rules of Civil Procedure, on the grounds that they were frivolous, vexatious, or an abuse of process.

The motion judge also granted ancillary relief regarding fee waivers.

The Court of Appeal affirmed the motion judge's findings and conclusions, agreeing that the actions were clearly frivolous, vexatious, and an abuse of process, and that the fee waiver determination was a legitimate exercise of jurisdiction.

All three appeals were dismissed, and the appellant was ordered to pay costs.

The appellant, Bijan Naghshbandi, appealed judgments from two actions where he was ordered to repay significant debts to Shahram Heidari and Tarra Engineering Inc. The appeal raised five grounds: that the trial judge introduced a new theory of liability (joint investment), failed to provide adequate reasons for liability, did not apply a claimed credit, misstated the test for an oppression action, and erred in relying on unreliable witness testimony regarding a share transfer.

The Court of Appeal dismissed all grounds, upholding the trial judge's findings, particularly on credibility, and confirming the debts owed.

The appellant was convicted of sexual touching, invitation to sexual touching, sexual touching while in a position of trust, and uttering a death threat against his stepdaughter.

He appealed his conviction, arguing the trial judge erred in using a statement he made to the police.

Specifically, he contended the judge improperly inferred prior sexual activity from an admission of later consensual sexual activity (propensity reasoning/stereotypical assumptions) and failed to properly analyze the statement's exculpatory aspect under R. v. W.(D.).

The Court of Appeal dismissed the appeal, finding the trial judge's use of the statement was a permissible evidence-based credibility assessment, not based on prohibited reasoning.

The court also found the W.(D.) analysis was properly conducted, as the trial judge recognized the statement's partially exculpatory nature but gave it little weight due to its lack of spontaneity and its character as an "alternate narrative" rather than a denial.

The applicant, Shaun Rootenberg, sought an order for the appointment of counsel under s. 684(1) of the Criminal Code for his appeal, having exhausted legal aid options.

The Crown opposed, arguing the appeal lacked arguable merit and counsel was not necessary.

The court found that while the proposed grounds of appeal were weak, they were arguable for the purpose of the application.

Specifically, the second and third grounds, concerning the legal implications of strip searches during pre-trial custody and sentencing credits, involved significant and novel legal components, making the appointment of counsel necessary for a fair and effective appellate review.

The application for the appointment of counsel to advance all three grounds of appeal was granted.

The appellant, Detour Gold Corporation, brought an unopposed motion for leave to file a five-page reply factum.

The Court of Appeal granted the motion, using the opportunity to critique the current appellate rules that necessitate such motions.

The judge advocated for an automatic right to file brief reply factums to enhance written advocacy, improve judicial preparation, and reduce unnecessary litigation costs, highlighting a procedural gap in both civil and criminal appellate rules.

The appellant, Bradley Priestap, appealed his convictions for multiple counts of voyeurism, break and enter to commit voyeurism, possession of instruments for break and enter, and prowling.

He abandoned his sentence appeal.

The grounds of appeal were: the trial judge failed to provide adequate reasons, erred by summarily dismissing an alternate suspect theory, and ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons sufficient, no error in limiting evidence on an alternate suspect due to lack of connection, and no demonstration of prejudice from alleged ineffective assistance of counsel.

The appellant, Isaiah Norlyn Simmons, appealed a global sentence of six years' imprisonment for possession for the purpose of trafficking cocaine, possession of a loaded prohibited firearm, and possession of a loaded firearm while prohibited.

The appeal raised two grounds: that the sentencing judge erred by treating the timing of the guilty plea (after a preliminary hearing) as an aggravating factor, and that the judge failed to consider the appellant's rehabilitative potential.

The Court of Appeal agreed that treating the timing of the guilty plea as an aggravating factor was an error in principle but found that this error did not impact the overall sentence given the seriousness of the offences and the appellant's prior record.

The Court also found no error in the sentencing judge's consideration of rehabilitative potential.

Leave to appeal sentence was granted, but the appeal was dismissed.

This appeal concerned the applicability of the third-party records regime under sections 278.1-278.9 of the Criminal Code to a former police officer's anticipated testimony and a draft statement of claim in a criminal trial.

The appellants, J.R. (the former officer) and Toronto Police Service, sought to overturn a subpoena requiring J.R. to testify and to prevent the use of the draft statement of claim.

The Court of Appeal upheld the lower courts' findings that the third-party records regime did not apply to oral statements made by J.R. and, in the specific circumstances, did not apply to the draft statement of claim.

Furthermore, even if the regime applied to the draft statement, its production was deemed necessary in the interests of justice.

The appeal was dismissed, and an interim stay was set aside, making the lower court's unsealing and set aside orders effective.

The appellant, Trevor Letlow, appealed his convictions for aggravated sexual assault, assault with a weapon, assault causing bodily harm, sexual assault with a weapon, and unlawful confinement, as well as the indeterminate sentence imposed after being designated a dangerous offender.

The Court of Appeal dismissed both the conviction appeal, finding no error in the trial judge's assessment of the complainant's credibility despite a lack of independent corroboration for the sexual assault, and the sentence appeal, upholding the indeterminate sentence.

The court found the trial judge provided cogent reasons for rejecting expert opinion on age attenuation and concluding that no lesser measure could adequately protect the public.

The appellant, Hubert Nathanial Shilling, appealed his convictions for two counts of sexual interference and sought leave to appeal his four-and-a-half-year sentence.

The appeal challenged the trial judge's assessment of the complainant's credibility, the rejection of a motive to fabricate, and the use of corroborating evidence.

The appellant also brought a fresh evidence motion, citing his contraction of COVID-19 and a PTSD diagnosis during incarceration, seeking a reduced sentence.

The Court of Appeal dismissed the fresh evidence motion, the conviction appeal, and the sentence appeal, finding no errors in the trial judge's reasoning or the fitness of the sentence.

The appellant, Brenda Elliot, appealed her conviction for fraud over $5,000 and two counts of uttering a forged document, and her three-year sentence.

She argued that her s. 11(b) Charter right to a trial within a reasonable time was breached, and that her sentence was demonstrably unfit, offending the step principle, parity, and proportionality.

The Court of Appeal found no error in the application judge's calculation of trial delay, noting that even if there were errors, the net delay remained below the Jordan presumptive ceiling.

Regarding the sentence, the Court affirmed that the sentencing judge properly considered the step principle, parity, and proportionality, along with aggravating factors such as breach of trust, significant impact on victims (a non-profit agency), and the appellant's extensive criminal record for similar offences.

The Court dismissed the appeal against conviction and, while granting leave to appeal sentence, dismissed the sentence appeal.

The appellant sought to set aside an administrative dismissal of her spousal support application, which was initially refused by the motion judge.

The Court of Appeal allowed the appeal, finding that the motion judge erred in principle by treating the factors for setting aside a dismissal as rigid hurdles, misanalyzing prejudice, and failing to properly consider the policy favoring determination on merits.

The Court emphasized that lawyer inadvertence and the ability to restart the claim without limitation period expiry weighed against upholding the dismissal.

The dissenting opinion argued for deference to the motion judge's discretion and emphasized the importance of enforcing Family Law Rules timelines to combat delay.

The appellant, Salvatore Lamacchia, appealed an eight-year global sentence for two counts of possession of cocaine for the purpose of trafficking and breach of recognizance.

He argued the sentencing judge failed to consider the totality principle and did not give sufficient weight to his community work.

The Court of Appeal dismissed the appeal, finding the sentencing judge was alert to the totality principle and properly balanced aggravating and mitigating factors, including the appellant's community work.

The court reiterated the high standard for appellate intervention in sentencing.

The appellant, Ali Amiri, brought two appeals from Superior Court decisions concerning certiorari applications related to his criminal trial for threatening his wife.

The first appeal (C70004) challenged the dismissal of his certiorari application to quash a procedural order, which was deemed moot as the trial judge had since decided the underlying issues.

The second appeal (C70051) challenged the granting of certiorari applications by two subpoenaed witnesses (a lawyer and a Legal Aid Ontario employee) to quash their subpoenas, based on solicitor-client privilege and statutory privilege, respectively.

The Court of Appeal summarily dismissed both appeals under s. 685(1) of the Criminal Code, finding them frivolous or vexatious, emphasizing the limited scope of certiorari in criminal proceedings and the lack of merit in the appellant's arguments regarding privilege exceptions.

This is a costs endorsement following an appeal.

The appellants argued that their appeal raised novel issues in the public interest, warranting no costs award.

The court rejected this, finding the appeal involved the application of well-established legal principles.

The respondent, GlaxoSmithKline Inc., successfully resisted the appeal and was awarded partial indemnity costs, fixed at $25,000, inclusive of disbursements and taxes, limiting the award to costs associated with time spent by two senior lawyers.