David M. Brown

The appellants, estate trustees of Albert Curé's estate, appealed a trial judgment that interpreted a cohabitation agreement between Albert and Helen Kilitzoglou.

The trial judge found that Albert intended to care for Helen for the rest of her life and ordered the estate to pay all capital repairs and expenses to the residence after the initial three-year period, and apportioned realty taxes and insurance on a 50/50 basis.

The trial judge also found bad faith on the part of the trustees and awarded punitive damages.

The Court of Appeal allowed the appeal, finding that the trial judge erred by allowing his view of the factual matrix to overwhelm the words of the contract.

The dominant theme of the agreement was that each party would remain financially independent with no obligation to support the other.

The court held that Helen was responsible for all ordinary and reasonable costs of maintaining the residence after three years, including realty taxes and insurance, and that the estate was responsible only for the outstanding mortgage.

The Municipality of the Northern Bruce Peninsula appealed a decision of the Ontario Court of Justice that had quashed convictions for breaches of the Building Code Act, 1992.

The appeal judge had applied an outdated limitation period under section 36(8) of the BCA, relying on R. v. Pickles, which held that the one-year limitation period ran from the date construction was completed.

However, section 36(8) had been amended on July 1, 2010, to provide that the limitation period commenced from the date the facts first came to the knowledge of an officer or chief building official.

The Court of Appeal found that the prosecution was instituted within one year of the Municipality's initial knowledge of the structure and that the appeal judge had erred in law by applying the wrong limitation period.

The convictions and sentences were reinstated.

This appeal concerns the admissibility of participant expert evidence in a civil jury trial involving allegations of sexual assault.

The respondent sued for damages for sexual assaults allegedly committed in the mid-1990s.

A mental health clinician who treated the respondent in prison was permitted to give evidence as a participant expert.

The trial judge admitted the clinician's unredacted reports and allowed him to testify about their contents.

The Court of Appeal found that the clinician exceeded the proper scope of a participant expert by providing opinions on whether the alleged sexual assaults occurred and whether the respondent suffered harm caused by such assaults.

The court held that these opinions failed to meet the threshold requirements for admissibility under the Mohan/White Burgess test and that their prejudicial effect outweighed their probative value.

A new trial was ordered.

A lawyer appealed the dismissal of an application for a declaration that sections 267.5(1) and 280 of the Insurance Act violate the Canadian Charter of Rights and Freedoms.

The application judge found the appellant lacked both private and public interest standing to bring the application.

The Court of Appeal upheld this decision, finding that the appellant failed to demonstrate that the impugned provisions affected him personally and directly, and that his scholarly contributions and representation of affected clients did not establish a genuine interest in the outcome or demonstrate that the application was a reasonable and effective way to bring the issue before the courts.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated January 26, 2018 (amended February 26, 2018).

The appellant challenged the Board's order regarding his detention and conditions.

The Court of Appeal found that the Board's decision fell within the range of reasonable orders having regard to the totality of evidence and the Board's expertise.

The treating psychiatrist's concerns about the appellant's lack of initiative in addressing medical needs and absence of insight into his condition supported the Board's order to maintain hospital oversight to prevent the appellant from disengaging from treatment and presenting a significant risk of serious harm to the public.

The appeal was dismissed.

On appeal from a sentence imposed by the Ontario Court of Justice, the appellant sought a variation of the sentence.

On consent, the Court of Appeal allowed the appeal and varied the sentence to 133 days.

The appeal was heard on the same date as the decision was rendered.

The respondents successfully appealed the lower court decision.

The Court of Appeal awarded costs on a full indemnity basis, fixing costs at $40,000 inclusive of taxes and disbursements.

The court found that the suit had the markings of a true SLAPP (Strategic Lawsuit Against Public Participation) and did not apply the presumption in section 137.1(7) of the Courts of Justice Act on appeal, but considered the nature of the suit in fixing costs.

This is a costs endorsement on appeal from a Superior Court of Justice order.

The appellants appealed a decision and the Court of Appeal addressed the application of cost presumptions under the Court of Justice Act.

The court held that the statutory cost presumptions in s. 137.1(7) and (8) do not apply on appeal, as the statutory language does not expressly refer to costs on appeals.

However, the court exercised its discretion to apply the presumption for the motion costs and awarded the appellants costs on a full indemnity basis for the motion and on a partial indemnity basis for the appeal.

Appeal from a Superior Court decision on a motion under section 137.1 of the Courts of Justice Act.

The appellant brought multiple motions, including a successful section 137.1 motion but also unsuccessful constitutional and procedural motions.

The Court of Appeal addressed costs for both the motion and the appeal.

On the motion, no costs were awarded due to the presumption in section 137.1(8) and the offsetting effect of the appellant's unsuccessful meritless motions.

On the appeal, the appellant was awarded partial indemnity costs reduced to account for time spent on unsuccessful constitutional and procedural arguments.

This is a costs endorsement following a successful appeal by the defendants.

The appellants were entitled to costs on a full indemnity basis for the motion and proceedings below, with Corus Entertainment Inc. awarded $30,000 and the McSloy appellants awarded $30,000, both inclusive of taxes and disbursements.

On the appeal itself, the appellants were successful and entitled to costs on a partial indemnity basis, with Corus awarded $15,000 and the McSloy appellants awarded $15,000, both inclusive of disbursements and taxes.

The request for damages under section 137.1(9) of the Courts of Justice Act was denied.

The appellant challenged a summary judgment order requiring it to pay HST to the respondent supplier.

The central issue was whether a supplier can issue invoices disclosing HST payable after the supply transaction has occurred, or whether such disclosure must be made at the time of the transaction to comply with section 223(1) of the Excise Tax Act.

The respondent sold unrefined gold to the appellant over a two-year period without collecting or remitting HST.

After a CRA audit, the respondent issued invoices months later demanding payment of the HST.

The court held that section 223(1) is silent on timing and permits post-transaction invoices, affirming the summary judgment.

This is a costs endorsement on appeal from a Superior Court judgment dated September 26, 2017.

The appellants challenged the lower court decision, and the Court of Appeal addressed the issue of costs for the motion below.

The parties agreed that the costs determination should be remitted back to the trial judge for decision at a later time, pending clarification of the value of the claims and the effect of any Rule 49 settlement offers.

The appellants appealed a summary judgment dismissing their action against the respondents.

The motion had been rescheduled from February 1, 2018 to January 31, 2018, but the appellants did not receive notice of the change because they were in an area without internet access.

The Court of Appeal found that the appellants did not receive adequate notice of the hearing date and allowed the appeal, setting aside the summary judgment.

The respondents' motion was to be rescheduled on proper notice to the appellants.

Appeal from a trial judgment finding that a nurse and hospital were liable for negligence in the care of a newborn who developed kernicterus due to untreated hyperbilirubinemia.

The trial judge found the nurse breached the standard of care by failing to report jaundice to the resident physician and that but for this negligence, phototherapy would have been commenced earlier, preventing the development of kernicterus.

The appellants challenged the causation findings.

The Court of Appeal upheld the trial judgment, finding that the trial judge properly inferred causation based on expert evidence and the factual progression of the infant's condition, and that the appellants could not escape liability by pointing to hypothetical negligence of other physicians.

The appellant sought leave to amend his statement of claim to correct a misnomer by substituting the proper defendant after the expiry of the limitation period.

The motion judge refused the amendment.

The Court of Appeal allowed the appeal, finding that the appellant satisfied the "litigation finger test" for misnomer established in Lloyd v. Clark.

The appellant knew the proper defendant but failed to sue the proper party, and the intended defendant knew it was the intended defendant before the limitation period expired.

The court granted leave to amend and awarded costs.

This appeal concerns the closure of a manufacturing plant and the resulting mass termination of employees.

The central issues relate to the timing of Form 1 notice requirements under the Employment Standards Act, 2000, the effect of overtime hours on working notice, and the validity of termination notices for employees retained beyond the statutory 13-week temporary work period.

The employer gave employees over one year's notice of termination but failed to file the required Form 1 notice with the director until more than a year later.

The motion judge found the employer's entire notice period invalid.

The Court of Appeal allowed the appeal in part, holding that the Form 1 notice requirement arises only at the beginning of the statutory minimum notice period, not when the employer gives notice to employees.

However, the court upheld findings regarding overtime worked in violation of the ESA and the requirement for fresh notice when temporary work exceeds 13 weeks.

The appellant appealed his convictions for failing to provide the necessaries of life to his blind and cognitively impaired mother and sister, resulting in their deaths from starvation and septic shock respectively.

The appellant also appealed his sentence of 18 years (8 years consecutive for criminal negligence in his sister's death and 10 years for manslaughter in his mother's death).

The Court of Appeal dismissed the conviction appeal but allowed the sentence appeal.

The court found that while the verdicts were inconsistent (acquittal on manslaughter but conviction on criminal negligence for the sister's death), the criminal negligence conviction was reasonable and supported by evidence, whereas the manslaughter acquittal arose from a manifest legal error.

The court admitted fresh evidence regarding the appellant's cognitive limitations on the sentencing issue and reduced the global sentence to 14 years, minus presentence custody credit of 1,405 days, resulting in a net sentence of 10 years and 2 months.

The appellant, the mother of Monica Gaumont, appealed a judgment appointing the Public Guardian and Trustee as guardian of Monica's property and personal care.

Monica, age 30, has a form of epilepsy with progressive seizures that have caused cognitive regression.

The application judge found Monica lacked capacity and appointed the PGT as guardian, allowing the appellant to reapply upon important changes in circumstances.

The Court of Appeal dismissed the appeal on all grounds, finding no procedural unfairness, no error regarding the capacity finding, and no merit to arguments concerning a power of attorney or alternative guardians.

The appellant, a lawyer, appealed from a summary judgment order dismissing his action to collect an account for legal services in the amount of $51,493.37.

The appellant's sole ground of appeal was that the motion judge erred in concluding there was no material non-disclosure or fraudulent representation by the respondents regarding the release of the account or during the assessment proceeding.

The Court of Appeal found no error in the motion judge's findings of fact, which were fully supported by evidence, including that the respondent was aware of the appellant's outstanding action 14 months before signing the release, that the appellant was aware of the assessment proceeding, and that the respondents were entitled to rely on counsel's representations.

The appeal was dismissed with costs fixed at $15,000.

The appellants brought a second motion for reconsideration of a prior Court of Appeal decision that had dismissed their appeal and affirmed a judgment against them.

The appellants sought to set aside or vary the prior decision on grounds of fraud, mistake, and significant new material facts.

The Court of Appeal dismissed the motion, finding that the appellants were recycling arguments already considered and rejected, mischaracterizing the basis of their first motion to reconsider, and presenting arguments without merit regarding the respondent's standing and the credibility of witnesses.

The court further ordered that the appellants could not initiate further proceedings without paying outstanding costs and obtaining leave of the panel.