David M. Brown

The appellant, Neighbour’s Drug Mart Ltd., appealed the Divisional Court's dismissal of its judicial review application.

The original decision by the Executive Officer of the Ontario Public Drug Programs terminated Neighbour’s Health Network System Agreement, revoked its billing privileges under the Ontario Drug Benefit Act, and suspended its entitlement to payment due to false or unsubstantiated claims.

Neighbour’s argued the Divisional Court erred by misapprehending the record, imposing an unsupported sanction, and creating absolute liability.

The Court of Appeal dismissed the appeal, finding no reversible error in the Divisional Court's application of the reasonableness standard or its conclusions regarding the owner's responsibility and the regulatory scheme's honour system.

The court also rejected the argument that the Executive Officer's consent to a change of control precluded subsequent termination, emphasizing the new owner's assumption of all liabilities.

Vertical Horizons Contracting Inc. appealed a trial judgment that ordered it to pay the City of Markham $22,291.25 after a set-off, stemming from a breached contract for sanitary sewer system replacement.

The appellant argued that issues with water and soil caused additional expenses and challenged the trial judge's finding of contractual breach.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or interpretation of the contract, which held the appellant responsible for the work methodology and the impacts of site conditions beyond the initial 30 metres of pipe installation.

The appellant sought to overturn a trial judgment that dismissed her application for a declaration of trust over a residential property and damages.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's credibility assessments or factual findings, particularly given the trial judge's finding that the appellant's evidence was "inherently improbable" and exaggerated.

No error of law was demonstrated.

The appellants sought to set aside a default judgment issued against them after an uncontested trial, and requested related relief.

The Court of Appeal dismissed the appeal, finding no inappropriate conduct by the plaintiff or error by the trial judge in conducting an uncontested trial.

The court emphasized that an appeal is not the proper route to seek to set aside a default judgment; rather, a motion under Rule 19.08(2) of the Rules of Civil Procedure should be brought first.

The appellant, Mr. Flight, appealed two orders from a motion judge concerning three issues: whether the transfer of a "Trustee Action" to him required the Trustee's consent, the Trustee's production of documents, and the motion judge's costs award.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's conclusions regarding document production or the costs award.

The court also noted that the issue of Trustee consent for the action transfer had been previously addressed in a prior decision and was currently under reserve by another motion judge, thus requiring no further comment from the Court of Appeal.

NWG Investments Inc. appealed the motion judge's dismissal of its 2014 action for delay, which stemmed from events in 2007-2008.

The motion judge found the delay inordinate, inexcusable, and prejudicial.

NWG challenged only the finding of prejudice.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's assessment of prejudice, which included factors like document availability, witness relevance, and memory.

The court reiterated the plaintiff's obligation to move an action expeditiously and rejected the argument that the decision rewarded defendants for "lying in the weeds."

The respondents brought a medical malpractice action after the plaintiff suffered a severe brain injury from a cardiac arrest during a caesarean section.

The trial judge found the primary obstetrician (Dr. Padmore), the anesthesiologist (Dr. Jamensky), and the hospital liable for negligence.

On appeal, the Court of Appeal allowed the appeals of Dr. Padmore and the hospital, finding the trial judge erred in his legal causation analysis regarding their respective pre-delivery acts and omissions.

The Court dismissed Dr. Jamensky's appeal, upholding the trial judge's findings that he breached the standard of care by prematurely converting the patient to a general anesthetic and that this negligence caused the cardiac arrest.

Dr. Jamensky was held solely liable for the agreed $12 million in damages.

This appeal concerned the constitutionality of section 12 of the National Security and Intelligence Committee of Parliamentarians Act, which limits parliamentary privilege, specifically freedom of speech and debate, for members of the Committee regarding the disclosure of classified information.

The application judge had declared section 12 ultra vires Parliament.

The Court of Appeal allowed the appeal, holding that Parliament possesses the plenary legislative authority under section 18 of the Constitution Act, 1867 to define and limit its own privileges, including freedom of speech and debate, without requiring a constitutional amendment.

The court found that section 12 is intra vires the federal Parliament, emphasizing that Parliament can legislate to define the scope of its own powers and privileges, especially when members voluntarily accept such limits.

The Court of Appeal for Ontario considered an appeal and cross-appeal, along with motions to quash.

The parties agreed that the appeal and cross-appeal were sufficiently interrelated to be heard together to avoid duplication and ensure consistency.

Consequently, the court, on consent, dismissed both motions to quash without costs, ordering the consolidated appeal and cross-appeal to proceed.

The self-represented litigant, Glenn Bogue, a suspended lawyer, filed multiple procedural panel review motions in the Court of Appeal concerning his appeal from a Law Society of Ontario suspension and a separate power of attorney litigation.

The court found these motions to be an improper use of the panel review procedure under s. 7(5) of the Courts of Justice Act, as they diverted judicial resources from the merits of the appeals and constituted an "endless cycle of appeals within an appeal" on procedural issues.

The judge issued directions to the Registrar to initiate a Rule 2.1.02 process to dismiss these unperfected procedural motions, review Mr. Bogue's existing fee waivers under s. 4.10 of the Administration of Justice Act, and temporarily restrict further filings from him until the panel review matters are resolved.

The plaintiffs brought a motion seeking leave to amend their Statement of Claim and to dismiss a crossclaim brought by the Non-Settling Defendants against the Settling Defendants, following a Pierringer Agreement.

The court granted leave to amend the Statement of Claim, as it was unopposed.

However, the motion to dismiss the crossclaim was dismissed.

The court found that the Pierringer Agreement was not contingent on the dismissal of the crossclaim, and crucially, that the crossclaim was not solely for contribution and indemnity in negligence but also included claims for breach of contract, which are not negated by a Pierringer agreement.

The defendants brought a motion to strike the claim of a corporate plaintiff, Lake View Town Development Inc., alleging incorrect identification and lack of proper authorization.

The plaintiffs argued the motion was abandoned due to the defendants' failure to properly confirm it under Rule 37.10.1.

The court found that the defendants' counsel failed to confer with opposing counsel, falsely represented in Form 37B that they had, and failed to amend their motion materials as previously directed.

Consequently, the motion was deemed abandoned, and the plaintiffs were awarded costs.

The appellants sought to certify a class proceeding against the provincial government for its response to COVID-19 in long-term care homes, asserting claims in negligence, breach of fiduciary duty, and breach of Charter s. 7.

The motion judge certified the negligence claim against the Minister of Long-Term Care (MLTC) but struck the other claims.

This appeal and cross-appeal challenged that decision.

The Court of Appeal dismissed both the appellants' appeal (seeking to certify the struck claims) and the respondent's cross-appeal (seeking to decertify the negligence claim against the MLTC), thereby upholding the motion judge's original certification decision.

This decision concerns a reference for the calculation of damages arising from a failed real estate transaction.

The vendor, 400 East Mall GP Inc., sought damages from the purchaser, Olanrewaju Omololu, after the purchaser breached the Agreement of Purchase and Sale.

The court assessed damages for loss of bargain and consequential damages.

It determined that various 'Additional Charges' claimed by the vendor were not recoverable due to insufficient evidence and failure to mitigate.

The court awarded the vendor $97,835.92 in total damages, after crediting the purchaser's deposit and offsetting occupancy fees against carrying costs.

No costs were awarded due to the mixed result.

This appeal concerned a severe brain injury sustained by Megan Desrochers in an ATV accident.

The trial judge found Patrick McGinnis liable for negligence, with 10% contributory negligence by Megan, but dismissed claims against Grant and Catherine McGinnis.

Patrick appealed his liability.

The Desrochers cross-appealed the dismissal of claims against Grant and Catherine, both in tort and under s. 192(2) of the Highway Traffic Act (HTA).

The Court of Appeal dismissed Patrick's appeal, upholding his liability.

It also dismissed the Desrochers' cross-appeal regarding Catherine's tort liability.

However, the Court allowed the Desrochers' cross-appeal regarding Grant's liability under HTA s. 192(2), finding that "negligence in the operation of a motor vehicle" includes the negligent transfer of care and control of the vehicle to an unfit person.

The plaintiff brought a motion to extend the time to set the action down for trial and to establish a litigation timetable, while the defendant sought dismissal of the action for delay.

The court granted the plaintiff's motion, finding that the plaintiff provided an acceptable explanation for the delay, largely attributable to counsel's personal health issues and professional demands during the COVID-19 pandemic, and that the defendant would suffer no non-compensable prejudice.

The court emphasized that delay caused by counsel, rather than the client, is generally not a basis for dismissal.

A new timetable for pre-trial steps was ordered, and costs were awarded to the plaintiff.

The appellant mother appealed a trial judge's order that increased the respondent father's parenting time to a 50/50 schedule.

The appeal raised issues including whether a material change in circumstances was required to vary a final order containing a review term, the admission of hearsay evidence, the amendment of pleadings at trial, and the consideration of the children's best interests.

The Court of Appeal dismissed the appeal, affirming that a review term in a final parenting order can negate the need for a material change in circumstances if properly justified and delimited.

The court also upheld the trial judge's findings on evidence, pleading amendments, and the children's best interests, and denied the appellant's motion to admit fresh evidence.

The Trustee in bankruptcy moved for orders that the appellants (related to the bankrupt Medcap) did not have an automatic right of appeal under BIA s. 193(a) or (c) from a lower court order, required leave to appeal, and should be denied leave.

The appellants argued that a single judge lacked authority to make such a determination, citing R. 61.16(2.2) of the Rules of Civil Procedure.

The court held that the lower court's order was purely procedural, thus no automatic right of appeal existed under BIA s. 193(a) or (c).

The court further held that a single judge has the authority to determine appeal rights under BIA s. 193 due to the doctrine of federal paramountcy, which overrides provincial rules like R. 61.16(2.2) in bankruptcy matters.

Leave to appeal was denied as the proposed appeal lacked merit, did not raise issues of general importance, and would hinder bankruptcy proceedings.

The applicant, B.B., sought release pending the determination of his appeal from convictions for sexual assault and assault.

The application was dismissed as the applicant failed to satisfy the public interest criterion under s. 679(3)(c) of the Criminal Code.

The court found that the enforceability interest significantly outweighed the reviewability interest, primarily due to the serious nature of the offences and the applicant's inability to provide a sufficiently complete record (missing trial transcripts) to demonstrate that the grounds of appeal clearly surpassed the 'not frivolous' threshold.

Bluecore Capital Inc., the respondent on appeal, brought a motion to lift the automatic stay of a bankruptcy order against Sergio Grillone, the appellant, and for an order requiring Mr. Grillone to post security for costs of the appeal.

The motion judge granted the motion, finding that Mr. Grillone had not diligently prosecuted his appeal, his grounds of appeal were very weak, he had failed to satisfy previous cost orders, and the relative prejudice strongly favoured lifting the stay to allow a trustee to manage his assets for the benefit of creditors.

The court also ordered Mr. Grillone to post $30,000 as security for costs.