David M. Brown

On appeal from a summary judgment decision, the Court of Appeal considered whether a motion judge properly granted judgment to the plaintiff in the absence of a cross-motion, whether hearsay evidence was improperly admitted on the summary judgment motion, and whether the defendant occupier breached its statutory duty under the Occupiers' Liability Act.

The plaintiff was injured when he tripped over a skateboard in a shopping mall food court.

The motion judge granted summary judgment in favour of the plaintiff on liability, directing a trial only on damages assessment.

The Court of Appeal allowed the appeal, finding the motion judge acted unfairly by granting judgment not requested by the plaintiff, improperly admitted hearsay evidence on contested issues, and erred in finding liability.

The Court granted summary judgment dismissing the action.

The appellant employer appealed and the respondent employees cross-appealed from a motion judge's orders awarding wrongful dismissal damages following the dismissal of the respondents without cause after the sale of part of the employer's retail business.

The appeal addressed whether the respondents failed to mitigate damages by refusing comparable employment with the purchaser, and whether damages for employment benefits should be reduced by pension benefits received.

The cross-appeal concerned the calculation of damages for lost Savings Plan contributions.

The court dismissed the appeal, finding the motion judge did not err in determining the offered employment was not comparable and that pension benefits should not be deducted.

The court allowed the cross-appeal, finding the motion judge erred in calculating Savings Plan contributions at 3% rather than 6%.

The appellants, owners of several hookah lounges in the Regional Municipality of Peel, challenged by-law No. 30-2016, which prohibits waterpipe smoking in enclosed public places, enclosed workplaces, and restaurant or bar patios.

The appellants argued the by-law was ultra vires the Region, conflicted with provincial occupational health and safety legislation, and was enacted in bad faith.

The application judge dismissed the application, finding the by-law was a valid exercise of municipal authority aimed at protecting public health and safety.

The Court of Appeal upheld this decision, dismissing the appeal and awarding costs to the respondent.

The appellant appealed a motion judge's finding of contempt on three access provisions in a custody and access order.

The motion judge had found the appellant in contempt for: (1) failing to provide the children's summer activity schedule by May 1 from 2012 to 2015; (2) denying access during Easter weekend in 2015; and (3) denying access to the son on his birthday in October 2015.

The Court of Appeal allowed the appeal and set aside all three findings of contempt, finding that the record did not support the motion judge's findings and that the motion judge's reasons were insufficient.

The appellant appealed a motion judge's decision to stay an Ontario action on the basis of forum non conveniens.

The action concerned a dispute over payment obligations under a Term Sheet governing an upstream oil and gas rights transaction in Iran.

The Term Sheet contained a clause providing that it would be governed by English law and that the parties agreed to attorn to the courts of England.

The motion judge had applied the strong cause test and stayed the action in favour of England.

The Court of Appeal found that the forum selection clause was not an exclusive jurisdiction clause and therefore the strong cause test did not apply.

Conducting a fresh forum non conveniens analysis, the court found that the respondents had not demonstrated that England was clearly the more appropriate forum.

The appeal was allowed and the stay was set aside.

The appellant appealed a disposition of the Ontario Review Board that ordered his continued detention at Waypoint Centre for Mental Health Care but failed to specify the terms and conditions for an independent psychiatric assessment at Royal Ottawa Mental Health Centre.

The Board had improperly delegated to the parties the responsibility to work out the details of the assessment.

The Court of Appeal found this constituted an error justifying intervention.

The court set aside the deficient disposition and replaced it with detailed terms for an in-patient assessment at ROH, including security measures, duration, and cost allocation to the Ontario Review Board.

The respondent Fund and the appellant Manager agreed that the Fund should be liquidated and dissolved but disagreed on the liquidation process.

The motion judge ordered liquidation without appointing a court-supervised liquidator, instead allowing the Fund to proceed with its proposed process using an expert.

The Manager appealed, arguing the motion judge erred in not appointing a liquidator.

The Court of Appeal dismissed the appeal, holding that section 217 of the Canada Business Corporations Act grants courts broad discretion to make orders in connection with liquidation and dissolution, and does not mandate the appointment of a liquidator.

The motion judge's reasons were cogent and supported by the record.

The appellant appealed the dismissal of her request for broad relief and the granting of child support by the application judge.

The appellant argued that the application judge lacked jurisdiction and erred in assessing the parties' requests.

The Court of Appeal dismissed the appeal, finding no merit in the jurisdiction argument and declining to find error in the application judge's assessment of the merits.

Costs were fixed at $7,500 inclusive of disbursements and relevant taxes.

The appellant appealed a motion judge's decision dismissing his claim for unconscionability and upholding the respondent's cross-motion for summary judgment.

The appeal concerned a forfeiture clause in an agreement between a purchaser and vendor.

The Court of Appeal deferred to the motion judge's finding that there was no unconscionability based on the circumstances and relationship between the parties.

The court also found that while the damages document may have overstated the vendor's losses, the damages were significant and the forfeited amount was not out of all proportion to those damages, failing to meet the criteria established in Redstone Enterprises Ltd. v. Simple Technology Inc.

The appellant appealed a trial judgment dismissing her claim for support from the estate of her deceased spouse.

The appellant argued that a waiver of support clause in the marriage contract was contingent upon the matrimonial home being held in joint tenancy, and that when the home ceased to be so held, the waiver no longer applied.

The Court of Appeal affirmed the trial judge's decision, finding that two amendments to the marriage contract made clear that the home would be held in tenancy in common with certain rights to the appellant upon the respondent's death, and that neither amendment detracted from the waiver provision.

The court deferred to the trial judge's contractual interpretation and found no clearly identifiable error in law or palpable and overriding factual error.

The appellant appealed convictions on 14 counts arising from three separate incidents: a June 2013 driving incident involving dangerous driving, criminal harassment, and intimidation; a June 2013 arrest incident involving dangerous driving and escaping lawful custody; and various incidents involving neighbours and school-related matters.

The appellant challenged the trial judge's credibility assessments, arguing insufficient reasons, uneven scrutiny of evidence, and misapplication of the W.D. test.

The Court of Appeal upheld all convictions, finding the trial judge's reasons were detailed and thorough, credibility findings were properly grounded, and no reversible errors occurred.

This is a costs endorsement on appeal from a Superior Court judgment.

The appellants (The Attorney General of Canada and two officers) were successful on appeal and were awarded costs.

The Court of Appeal set aside the trial costs order and awarded the appellants costs at trial on a partial indemnity basis, in addition to costs of the appeal.

The appellant appealed his conviction for possession for the purpose of trafficking.

The central issue was whether the trial judge erred in finding exclusive possession of drugs and drug paraphernalia seized from a bedroom rented by the appellant.

The appellant argued that the trial judge's finding of exclusive possession was undermined by the landlord's evidence that another tenant (referred to as the "tall skinny guy") may have entered the room.

The Court of Appeal upheld the conviction, finding that the trial judge's inference of knowledge and control based on temporal exclusive possession was reasonable given the evidence, including the appellant's rental of the room, the nature of items found, police surveillance observations, and the lack of evidence that the other tenant was present near the time of seizure.

The sentence appeal was dismissed as dependent on a successful conviction appeal.

This appeal concerns a mother's request for access to three of her six children in extended care following their apprehension by the Children's Aid Society in 2015.

The motion judge granted Crown wardship without access.

The Divisional Court affirmed the decision but applied the old Child and Family Services Act rather than the new Child, Youth and Family Services Act, 2017.

The Court of Appeal allowed the appeal, finding that the transitional provisions of the new Act applied, the record was insufficient to satisfy the expanded access test, the children's Indigenous heritage was not properly considered, and the approach to summary judgment in child protection matters was misapplied.

The matter was remitted to Superior Court for determination under the new legislation.

The appellant sought leave to appeal his sentence imposed for robbery, disguise with intent to commit theft, and failure to comply with a recognizance.

Two grounds were advanced: first, that the victim surcharge must be set aside (agreed to by the Crown); and second, that 54 days served in custody for unrelated offences (the Mississauga Offences) should be credited toward his sentence for the Vaughan Offences after his conviction on the Mississauga Offences was overturned on appeal.

The court granted leave to appeal and set aside the victim surcharge but dismissed the appeal on the second ground, holding that custodial time served for one offence cannot be credited toward sentencing for another offence, even where the offences are related or interconnected.

The appellant appealed a sentence of 12 years imposed for sexual assault, sexual exploitation, and breaches of court orders.

The appellant had sexually assaulted his teenaged step-granddaughter on an ongoing basis for one and a half years, including various forms of sexual abuse.

The appellant had a prior conviction for sexual interference with the same victim when she was 10 years old and had also been convicted of sexually abusing the victim's mother in the 1990s.

The Court of Appeal upheld the sentence as fit and within the appropriate range.

The court also rejected the appellant's argument that the sentencing judge was functus officio when imposing a non-communication order approximately one month after the original sentencing, finding it was a permissible administrative correction.

The appellant appealed from two convictions and sentences.

The first conviction was for possession of methamphetamine and two counts of breach of recognizance, arising from a search warrant execution.

The second conviction was for possession of methamphetamine for the purposes of trafficking.

The appellant challenged the validity of the search warrant, claiming police fraud in altering the time on the warrant and improper reference to a confidential informant.

She also challenged the lawfulness of her arrest and search incident to arrest, and raised a Charter s. 11(b) right to trial within a reasonable time argument.

The Court of Appeal dismissed both conviction appeals and the sentence appeals, except for vacating the victim fine surcharge in one matter.

The appellant appealed a sentence imposed by the Superior Court of Justice on the grounds that a mathematical error was made in calculating pre-sentence custody credit.

The sentencing judge intended to apply a 1.5:1 credit ratio but the calculation resulted in 13 months of credit instead of the correct 13.3 months.

The Crown conceded the mathematical error but argued against correction based on judicial discretion and the minimal nature of the discrepancy.

The Court of Appeal granted leave to appeal and allowed the appeal, reducing the sentence by 15 days to correct the mathematical error.

The appellant appealed both conviction and sentence from a trial judgment entered by Justice Peter Bawden of the Superior Court of Justice.

The appellant raised concerns about the trial judge's credibility findings in the Notice of Appeal but did not advance these submissions orally.

The Court of Appeal found no error in the trial judge's credibility assessment.

The appellant also expressed regret about not testifying at trial, but this concern was not raised in the Notice of Appeal and the Court found no basis for appellate intervention.

On the sentence appeal, duty counsel advanced two arguments alleging errors in the reasons for sentence, both of which were rejected by the Court of Appeal.

The appellant appealed a probation order imposed by the sentencing judge that prohibited him from contacting his parents.

The appellant argued that the sentencing judge had changed position from what was indicated during the joint pre-trial meeting, thereby prejudicing him by denying him the opportunity to make submissions on this condition.

The Court of Appeal dismissed the appeal, finding no procedural unfairness and noting that probation had not been decided during sentencing submissions.

The court also noted that the parents could consent to contact if they wished.