David M. Brown

The moving party sought leave to appeal a costs decision issued two and a half years after his action was dismissed on summary judgment.

He argued the delay caused him injustice and that the costs were too high.

The Court of Appeal denied an adjournment and dismissed the motion for leave to appeal, finding the costs decision was conventional, the amounts were not disproportionate, and the delay itself did not constitute an error in principle.

The appellant appealed an order striking out his statement of claim without leave to amend.

The respondent requested the appeal be dismissed under Rule 2.1 of the Rules of Civil Procedure.

The Court of Appeal found that the statement of claim failed to plead the basic elements of any recognized cause of action and sought to relitigate issues from a previously dismissed 2014 action.

Concluding that the appeal lacked any arguable ground and was frivolous, vexatious, or an abuse of process, the court dismissed the appeal.

Traders General Insurance Company moved to review a single judge's decision denying it leave to appeal an order under the Bankruptcy and Insolvency Act.

The underlying dispute involved a bad faith claim assigned to the respondents by a discharged bankruptcy trustee following a motor vehicle accident judgment.

The Court of Appeal held that it had jurisdiction to review the single judge's decision because the judge had mistakenly declined jurisdiction by failing to address the merits of the leave motion.

Applying the Pine Tree Resorts test, the Court granted leave to appeal, finding that the proposed appeal raised prima facie meritorious issues of general importance to bankruptcy practice.

The parties entered into a prenuptial agreement waiving spousal support and property rights.

After separation, the appellant husband sought equalization and spousal support, and requested the marriage contract be set aside under the Family Law Act.

The motion judge granted summary judgment to the respondent wife, finding the request to set aside the contract was statute-barred by the two-year limitation period in the Limitations Act.

The Court of Appeal allowed the appeal, holding that a request to set aside a marriage contract is a proceeding for a declaration where no consequential relief is sought, and is therefore not subject to a limitation period under s. 16(1)(a) of the Limitations Act.

The underlying claims for equalization and support remain subject to their respective limitation periods.

Following the dismissal of the appellant's appeal, the respondents sought full indemnity costs, relying on an unresponded settlement offer and rule 57.01 of the Rules of Civil Procedure.

The Court of Appeal declined to award full indemnity costs, noting that costs generally follow the event on a partial indemnity basis unless there is sanctionable conduct during the appeal.

Finding no such conduct, the court awarded the respondents partial indemnity costs of $11,000 all-inclusive.

The appellant father appealed a trial decision granting sole custody of the child to the respondent mother, ordering him to pay child and spousal support, and awarding trial costs to the respondent.

The appellant argued the trial judge erred in failing to determine an exact separation date, in awarding spousal support given his high student debt, and in not ordering parallel custody.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the best interests of the child framework or the spousal support guidelines, and noting the trial judge appropriately considered the appellant's debt and the history of intimate partner violence.

Following a successful appeal where the appellant was awarded $500 in Charter damages, the parties made written submissions on costs for the proceeding below.

The appellant sought substantial indemnity costs, arguing his action was public interest litigation.

The court rejected this argument, finding the action did not meet the criteria in Carter.

However, the court found that applying the strict costs consequences of Rule 49.10(2) would result in the successful appellant paying costs to the respondent, which would be a harsh result for enforcing constitutional rights.

The court departed from the rule in the interests of justice and awarded the appellant $25,000 in costs.

The moving party sought to dismiss the appeal or require the responding party to post security for costs.

The responding party had failed to pay a previous costs order of $2,000 and failed to appear for the scheduled appeal hearing.

The Court of Appeal declined to dismiss the appeal outright for a single unpaid costs order but ordered the responding party to pay $19,000 into court as security for costs, plus the outstanding costs and the costs of the motion, failing which the appeal would be dismissed.

The appellant, a university student who had been banned from campus, initiated over 20 separate legal proceedings against the university, student council, and others.

The application judge declared him a vexatious litigant under s. 140 of the Courts of Justice Act.

The appellant appealed the judgments but failed to identify any errors in the application judge's analysis.

The Court of Appeal dismissed the appeal, finding no error in the conclusion that the appellant is a vexatious litigant.

The respondent, having successfully defended an appeal, sought costs of $17,818.44.

The appellant did not dispute the entitlement to costs but argued the quantum was excessive, noting he would have sought only $9,152.95 had he been successful.

The Court of Appeal agreed the requested amount was high given there was no oral hearing, and fixed the costs payable to the respondent at $9,000 inclusive of disbursements and HST.

The appellant appealed the dismissal of his application for a declaration that he owned a two-thirds share of a property.

The property was originally owned by his mother-in-law, who transferred it to herself and her daughter (the appellant's late wife) as joint tenants.

The appellant argued the property was a matrimonial home and the joint tenancy was severed upon his wife's death.

The Court of Appeal dismissed the appeal, finding that the transfer raised a presumption of resulting trust which was not rebutted.

Because the daughter held the property on resulting trust, she did not have an interest in the property under the Family Law Act, precluding it from being a matrimonial home.

The appellant lawyer sought the proceeds of his client's after-the-event insurance policy to cover disbursements incurred in a motor vehicle action.

The client was a person under disability represented by a litigation guardian.

The Court of Appeal upheld the application judge's findings that the contingency fee agreement was unenforceable because it lacked court approval and was signed by the incapable client without the litigation guardian's involvement.

The Court also upheld the dismissal of the appellant's motion for a charging order, finding the appellant merely acted as an insurance intermediary and did not recover or preserve property in the litigation.

The appellant, an independent agent for the respondent financial services company, appealed the dismissal of his application for an order requiring the respondent to pay service commissions.

The respondent had changed its policy to make service commissions dependent on new sales performance.

The Court of Appeal found no palpable and overriding error in the application judge's conclusion that the contract permitted the respondent to modify pay arrangements and impose minimum performance standards upon notice.

The appeal was dismissed.

Following an appeal where success was divided, the parties made submissions on costs.

The appellant sought partial indemnity costs of $12,500, while the respondents sought $7,170 and no change to the motion judge's costs award.

The Court of Appeal ordered no costs for the appeal due to the divided success, but reduced the costs awarded below from $6,000 to $3,000, payable only to the corporate respondent.

This is a joint direction from the Eastern and Western Administrative Judges concerning the administration of the Indian Residential Schools Settlement Agreement (IRSSA).

The direction assigns Justice Brown of the British Columbia Supreme Court to hear the "Metatawabin RFD #2" (Request for Direction #2), following Justice Perell's recusal as the Ontario Supervising Judge due to prior costs awards against the Requestors' counsel.

The decision emphasizes judicial economy and the urgency of resolving the RFD before the IRSSA's Independent Assessment Process (IAP) Secretariat ceases operations.

It also directs that the hearing be conducted virtually to address the safety concerns of St. Anne's Indian Residential School survivors during the Covid-19 pandemic.

The appellant, Randolph Burns, appealed a motion judge's order striking out his statement of claim against two corporate employees (Lauren McLean and Anna Oslizlok) without leave to amend, and granting RBC Life's request for a discovery order.

The appeal concerned the adequacy of claims pleaded against corporate employees for torts allegedly committed in the course of their employment.

The Court of Appeal found that the motion judge correctly determined that the statement of claim failed to plead specific material facts to support individualized claims against the employees, but erred in denying leave to amend.

The appeal was allowed in part, granting Mr. Burns leave to amend his statement of claim.

The appellants appealed an order dismissing their action for delay against two respondents under Rule 48.14(7) of the Rules of Civil Procedure.

The motion judge found the appellants failed to provide an acceptable explanation for a four-year delay, rejecting their "wait and see" approach tied to another delayed action.

The Court of Appeal upheld the dismissal, affirming the motion judge's discretionary decision and reiterating that failure on the first part of the two-part test (acceptable explanation) is sufficient for dismissal.

The appellant, a lawyer, sued the respondents (a law firm and individuals) for alleged breach of solicitor-client privilege.

The respondents successfully moved to strike the action based on issue estoppel, a decision the appellant appealed.

The Court of Appeal dismissed the appeal, affirming that the three-part test for issue estoppel was met.

The Master in an earlier, unrelated proceeding had squarely addressed and decided the privilege issue, finding it waived, and that decision was final due to the appellant's withdrawal of the appeal.

The appellant, Mr. Lotey, appealed an order striking out his statement of defence for failing to comply with documentary production obligations over a three-year period.

His law firm also sought leave to appeal an order requiring it to personally pay the costs of the motion.

The Court of Appeal dismissed Mr. Lotey's appeal, finding the motion judge properly exercised his discretion under Rule 30.08(2) given the deliberate and continuous failure to produce relevant documents.

The Court also denied the law firm leave to appeal the costs order, finding the firm was complicit in the flagrant disregard of the Rules and court orders.

The applicants, Darko and Daniel Stojanovski, sought bail pending appeal after being convicted of attempted murder and discharging a firearm, and sentenced to 18 years' imprisonment.

The Crown opposed the application.

The court found the appeals were not frivolous but dismissed the applications, concluding that detention was necessary in the public interest due to the serious nature of the offences, the unacceptably weak release plan, and the weak grounds of appeal, which outweighed the applicants' arguments regarding COVID-19 risks in detention.