Duncan Jared Brown

The court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14 of the Rules of Civil Procedure.

The plaintiffs argued that the delay was due to their former counsel and the conduct of the defendants, and that they always intended to prosecute the action.

The court refrained from deciding the motion, directing that the former counsel be served with the motion materials and given an opportunity to respond, as the allegations against him could affect his interests and the fairness of the process.

The First Nations moved to vary costs awards against the Estate of William Albin Herold, seeking to make Jeffrey S. Herold, the Estate Trustee, jointly and severally liable for over $190,000 in costs.

This motion was brought under Rule 59.06(2)(a) after the First Nations discovered that Mr. Herold had personally received a transfer of Lot 35, the property forming the basis of the Estate's claim to certain islands, a fact not disclosed during the original litigation.

The Court of Appeal dismissed the motion regarding Supreme Court of Canada costs, stating it lacked authority, but granted the variation for its own costs awards.

The court found that the non-disclosure was a material fact, not a mere irregularity, and that Mr. Herold was the true litigant, satisfying the "person of straw" test for imposing costs on a non-party.

The employer appealed a summary judgment decision awarding the employee damages for wrongful dismissal, arguing the employee was on a fixed-term contract that had expired.

The employee cross-appealed the dismissal of her claim for punitive damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the repeated renewals of the contract created an ambiguity, rendering it a contract of continuous service.

The court also upheld the motion judge's finding that the employer's advance written notice was insufficient due to its history of issuing and withdrawing such notices.

The cross-appeal for punitive damages was also dismissed, as the employer's conduct did not meet the required threshold.

The appellants appealed a Master's order dismissing their motion to set aside a default judgment.

The Divisional Court found that while the Master failed to properly apply the four-part test for setting aside a default judgment, the record demonstrated that the appellants failed to move promptly and lacked a reasonable explanation for their delay.

The court assessed the proposed defence as weak and concluded that the interests of justice did not warrant setting aside the default judgment.

The appeal was dismissed.

This is a costs endorsement following a successful appeal by the Attorney General of Canada and several First Nations against the Estate of William Albin Herold.

The Court of Appeal had previously allowed the appeals and set aside the lower court orders.

In this endorsement, the court fixed the costs of the proceedings below at $154,530.76, awarded to the appellant First Nations, as the Attorney General of Canada did not seek costs below.

The court also varied its previous appeal costs award, granting the full $43,000 (inclusive of disbursements and taxes) to the appellant First Nations, with no costs awarded to the Attorney General of Canada on appeal, in accordance with a prior agreement between the parties.

The Estate of William Albin Herold claimed ownership of three islands in Lake Katchewanooka, arguing they were conveyed as part of Lot 35 by Letters Patent in 1868, despite having separated from the mainland due to rising water levels.

The application judge found in favour of the Estate, applying a "Flooding Principle" to fix the boundary and concluding that treaties with First Nations did not affect the Crown's right to sell.

The Court of Appeal allowed the appeals by the First Nations and the Attorney General of Canada, finding that the application judge made extricable errors of law by failing to objectively ascertain the parties' intentions in the Letters Patent, misapplying the Flooding Principle, and not properly considering the Crown's treaty obligations.

The appellate court concluded that the Letters Patent did not convey the islands, as they were physically separate, separately identified, and subject to specific Crown obligations under Treaty 78.

The moving defendants sought to set aside a default judgment granted against them in January 2019 for failing to file a defence to the plaintiffs' action regarding unpaid real estate loans.

The court applied the three-part test from Hanratty v. Woods and found that the motion was not launched forthwith, the default was intentional, and the defendants failed to present a triable defence.

Relying heavily on text messages where the individual defendant personally guaranteed repayment, the court dismissed the motion to set aside the default judgment.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal from the bench for the reasons of the motion judge, and awarded costs to the respondent in the amount of $20,000.

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 Ontario College of Teachers brought a discipline proceeding against a member for professional misconduct related to his off-duty conduct on social media.

The member retweeted numerous offensive posts concerning Muslims, immigrants, refugees, and transgender individuals on his personal Twitter account.

Following a parent complaint, the member's school board suspended him for two days without pay and transferred him to another school.

Before the Discipline Committee, the member pled guilty to committing acts that would reasonably be regarded as disgraceful, dishonourable, unprofessional, and unbecoming a member.

The Committee accepted the guilty plea and ordered a penalty consisting of a reprimand, a requirement to complete coursework on appropriate communications and sensitivity training, and a 10-day suspension of his Certificate of Qualification and Registration.

An applicant sought a determination of rights under an employment agreement, alleging that a termination for cause provision violated the Employment Standards Act, 2000 (ESA), rendering the entire early termination clause void and entitling him to common law notice for the unexpired term of a fixed-term contract.

The court found that a valid employment contract was concluded.

While the "termination for cause" provision did not comply with the ESA due to a lower "just cause" standard compared to the ESA's "wilful misconduct" the court held that this specific clause was severable from the rest of the early termination provisions.

The "termination without cause" provision, which was ESA-compliant, remained valid and governed the early termination.

As the applicant never commenced employment and did not work for more than three months, he was not entitled to any notice, pay in lieu of notice, benefits, or severance pay under the ESA.

The court also noted that the employer's actions could be understood as negligent misrepresentation, but this was coincidental to the ESA violation.

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 plaintiffs, Mi5 Print & Digital Communications Inc. and 2214264 Ontario Inc., sought an interlocutory injunction against their former key employee, Craig Larmer, and other defendants for breach of fiduciary duties, misappropriation of confidential information, and solicitation of clients.

Larmer, a Vice-President, abruptly resigned and diverted Mi5's clients to his wife's reactivated business, LCS Imaging, and other defendants (Pyxalis Inc., Ronald Morgan, Barrie Williams, and Marvin Foy Marketing Incorporated).

The court applied the three-part test for interlocutory injunctions, finding a strong prima facie case against Larmer due to his fiduciary role and clandestine pre-resignation activities.

The Pyxalis defendants were found to have knowingly assisted Larmer.

The court also found irreparable harm due to the difficulty in quantifying loss of goodwill and damaged client relationships, and that the balance of convenience favored granting the injunction to restore fairness.

An interim interlocutory injunction was granted for one year, restraining the defendants from engaging in new activities with the specified clients, subject to existing contracts, and requiring strict accounting.

The appellant appealed the dismissal of his wrongful dismissal action.

He had been terminated for cause after bypassing a safety device on a machine, following a history of progressive discipline for safety violations.

On appeal, he argued the trial judge relied on unpleaded grounds, made palpable and overriding factual errors, and failed to resolve evidentiary conflicts.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors and concluding that the trial judge's findings on the appellant's misconduct were well-supported by the evidence.

The defendant sought leave to appeal an order dismissing its motion for partial summary judgment.

The motion judge had found a genuine issue for trial regarding whether the plaintiff's claim for unpaid bonuses was statute-barred, applying the discoverability principles under the Limitations Act, 2002.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision, particularly given the fact-specific nature of the discoverability issue in the employment context.

The employer brought a motion for partial summary judgment dismissing a former employee’s claims for unpaid bonuses on the basis that the claims were statute‑barred under the Limitations Act, 2002.

The court examined the employment agreement and the employer’s bonus practices, finding the process for awarding bonuses was unilateral, opaque, and not explained to the employee.

The court held that the evidence did not clearly establish that the employee knew or ought to have known he had a claim more than two years before commencing the action.

The employer’s failure to disclose its interpretation of the bonus provisions and relevant sales information could amount to fraudulent concealment preventing the limitation period from running.

The motion for partial summary judgment was dismissed.

The defendants moved to stay the plaintiffs' action for wrongful dismissal and oppression under the CBCA, arguing the dispute was subject to a broad arbitration clause in a unanimous shareholders agreement.

The plaintiffs argued the arbitration clause did not cover employment matters and that forcing arbitration would be oppressive.

The court applied the Mantini test, found the arbitration clause was broad enough to cover the dispute, and held that proceeding to arbitration would not be oppressive as all remedies sought could be pursued there.

The motion to stay the action was granted.