Gloria Epstein

The appellants sought summary judgment to determine whether an insurance policy obtained by the mortgagees covered the mortgagors' interest in the property and whether the insurer could exercise subrogation rights.

The mortgagors had failed to obtain property insurance after their existing policy was cancelled.

The mortgagees obtained a policy in their own names covering only their mortgagee interest.

The motion judge dismissed the motion, finding that the policy was for the sole benefit of the mortgagees and that the mortgagees were entitled to pursue subrogation rights.

The Court of Appeal affirmed, holding that Standard Charge Term 16 of the mortgage imposed the obligation to insure on the mortgagors and that any insurance obtained by the mortgagees was permissive and for their benefit alone.

The appellant mortgaged a golf course property to the respondent for $2,700,000.

After the appellant defaulted on the mortgage, the respondent obtained a default judgment for foreclosure and took possession of the property.

The appellant subsequently moved to set aside the default judgment and sought relief from forfeiture.

The motion judge dismissed the motion, finding no reasonable prospect of payment, no evidence of ability to redeem, and no special circumstances warranting equitable intervention.

The Court of Appeal upheld the dismissal, distinguishing the case from Winters v. Hunking on the basis that the appellant provided no appraisal evidence of property value or equity, the property was investment property rather than a family homestead, and the appellant's delay was inadequately explained.

The appellant appealed from orders of the Superior Court of Justice dismissing its action for delay and awarding costs to the respondents.

The action, commenced in 2005 for negligent engineering work on natural gas turbines, had been dormant since 2009 following a successful appeal of a summary judgment dismissal.

The respondents brought a motion under Rule 24.01 to dismiss for delay and recover costs.

The appellant argued that Rule 48.14, which mandates automatic dismissal of actions five or more years old without trial, should have applied without costs.

The Court of Appeal upheld the dismissal and costs award, finding that Rule 24.01 and Rule 48.14 operate concurrently with no hierarchy between them, and that the court retained jurisdiction to award costs under Rule 24.01 despite Rule 48.14's silence on costs.

The appellants appealed the dismissal of their negligence and occupiers' liability claim arising from a fall down stairs at a restaurant.

The motion judge dismissed the original claim based on the condition of the stairs but permitted amendment to plead an alternative theory based on failure to advise of an accessible washroom on the main floor.

A second motion judge dismissed the amended claim, finding it did not constitute a new cause of action and was therefore statute-barred.

The Court of Appeal upheld the dismissal but found the motion judge erred in his reasoning.

The amended claim did constitute a new cause of action based on a different duty of care and was properly barred by the Limitations Act as it was raised outside the two-year limitation period.

Appeal from a trial judgment awarding damages for birth injuries caused by hospital negligence.

The trial judge found that hospital nurses negligently ruptured the membranes during delivery, causing the plaintiff to suffer hypotonic cerebral palsy with serious and permanent impairments.

The appellants admitted falling below the standard of care but contested causation and damages.

The trial judge awarded $5,568,393 in total damages, including $1,881,846 for future loss of income, and costs of $2,201,259.

The appellants appealed the damages award and costs decision.

The Court of Appeal upheld the trial judge's findings and dismissed the appeal.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated June 29, 2017.

The appellant, found not criminally responsible on account of mental disorder for theft, challenged the Board's decision to continue his detention with specified community privileges.

The appellant conceded he remained a significant risk to the community but sought 72-hour passes rather than the 48-hour passes recommended by the Hospital.

The Board found the appellant remained a significant threat and imposed a detention order with the Hospital's recommended privileges.

The appellant appealed, arguing the Board misapprehended evidence regarding his diagnosis and his insight into his illness.

The Court of Appeal dismissed the appeal, finding no error in the Board's reasoning or findings.

A third mortgagee appealed a motion judge's decision dismissing his motion to set aside a default judgment in a foreclosure action brought by the first mortgagee.

The appellant claimed he had an interest in the property with sufficient value to satisfy his third mortgage after the first and second mortgages were paid.

The Court of Appeal upheld the dismissal, finding that the appellant's assertion of equity in the property did not constitute a valid defence to the foreclosure.

The appellant had not disputed the validity of the mortgages and had failed to file a request to redeem or request for sale.

The appeal was dismissed with costs awarded to the respondent.

The Court of Appeal for Ontario issued a costs endorsement following its dismissal of a motion by a law firm seeking a charging order or lien against damages and costs awarded to its client.

The law firm sought no costs or alternatively $2,500, arguing the issue was novel and of public importance.

The respondent sought substantial indemnity costs of $25,214.42, arguing the motion lacked merit and was an attempt to burden him with additional costs.

The court awarded costs to the respondent on a partial indemnity basis, rejecting the law firm's arguments and refusing to permit set-off against legal fees owed by the respondent.

The appellant appealed a family court order relating to a motion to change child and spousal support obligations under Part III of the Family Law Act.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because appeals from family court decisions under Part III of the FLA must be brought to the Divisional Court, not the Court of Appeal.

The appeal was quashed on jurisdictional grounds.

The appellants appealed a motion judge's decision striking out their negligence claim against the Toronto Police Services Board without leave to amend.

The appellants alleged the police owed them a duty of care in investigating a crime affecting their family.

The Court of Appeal upheld the dismissal, finding that the precedent in Wellington v. Ontario established that police do not owe a private law duty of care to victims of crime and their families in relation to police investigations.

The court rejected the appellants' arguments that their case was distinguishable based on their lack of certain victim remedies or their assistance to police in the investigation.

The appellant, a member of a not-for-profit corporation, challenged a bylaw that rendered members involved in litigation with the Board ineligible for nomination, election, or appointment to the Board.

The appellant had unsuccessfully campaigned for election in 2013 and subsequently engaged in litigation with the respondent.

The application judge dismissed the application under section 253 of the Canada Not-For-Profit Corporations Act, finding that the Limitations Act, 2002 applied and that the application was statute-barred.

The Court of Appeal upheld the dismissal, finding no error in the application judge's procedural approach and determining that the application was properly time-barred.

A private mortgage lender purchased mortgage insurance from an insurer and became the victim of mortgage fraud.

The lender's lawyer paid mortgage proceeds to the borrower's lawyer in trust rather than directly to the borrower.

The insurer denied coverage based on an exception clause requiring proceeds to be paid to the registered title holder.

The application judge found the exception did not apply.

The insurer appealed.

The majority of the Court of Appeal upheld the application judge's decision, holding that payment to the borrower's lawyer in trust constitutes payment to the borrower for purposes of the insurance policy.

The dissent argued the exception clause was unambiguous and applied because the funds were not paid directly to the registered title holder.

The law firm sought reconsideration of the court's decision on its motion for a charging order or solicitor's lien.

The court denied the request for reconsideration, noting that the law firm had already addressed the merits of obtaining a charging order in its written submissions and that the test for a charging order and solicitor's lien is the same.

The respondent slipped and fell on a wet floor in the vestibule of a department store operated by the appellants, fracturing her kneecap.

The trial judge found the appellants liable for negligence under the Occupiers' Liability Act, concluding that the wet floor caused the fall and that the appellants lacked an effective inspection or maintenance system.

The appellants appealed, arguing the trial judge failed to require proof that the wet floor created an unreasonable risk of harm and erred in rejecting expert evidence about the safety of the tile flooring.

The Court of Appeal upheld the trial judgment, finding the trial judge properly applied the statutory duty of care and reasonably rejected the expert evidence.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated June 30, 2017.

The appellant did not contest the Board's finding that he remained a significant threat to public safety or the disposition that he remain detained at the General Forensic Unit at CAMH.

However, he contended the Board acted unreasonably by not including a delegation of authority permitting community living in supervised accommodation when the Hospital deemed it appropriate, as had been included in the previous 2016 disposition.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and entitled to deference, as the evidence clearly showed the appellant was not ready for community living at the time of the hearing.

A law firm sought a charging order or solicitor's lien on funds awarded to its client in a successful civil action.

The client had recovered $390,000 in damages and $550,000 in costs at trial, with an additional $50,000 in costs awarded on appeal.

The law firm claimed $360,836.88 in unpaid fees and sought to secure this amount through either a charging order under the Solicitors Act or a lien under the court's inherent jurisdiction.

The client contested the amount owed and initiated an assessment process.

The Court of Appeal dismissed the motion, finding that while it had jurisdiction to grant such relief, the law firm failed to establish that the client was unable or unwilling to pay.

On appeal from a Superior Court decision, the appellant challenged the application judge's interpretation of a management agreement and the restated articles of incorporation concerning Class C shares of an investment fund.

The appellant argued that a payment it made to itself should be characterized as debt rather than an unauthorized performance dividend.

The Court of Appeal upheld the lower court's decision, finding no palpable and overriding error or extricable error in law.

The court affirmed that the payment was an undeclared and unauthorized performance dividend, and that nothing in the fund's articles converted it into debt.

On appeal from a motion judge's decision, the franchisor appealed the finding that the franchise agreement had been validly rescinded under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000, and the dismissal of its cross-motion for damages.

The franchisee cross-appealed certain ancillary issues.

The Court of Appeal found in favour of the franchisor on all issues.

This costs endorsement addresses the allocation of costs for both the underlying motions for summary judgment and the appeal.

Following a guilty plea to robbery with a restricted firearm, assault causing bodily harm, possession of a loaded restricted firearm, pointing a firearm, dangerous driving, and possession of a firearm while prohibited, the applicant was sentenced to six years' imprisonment less credit for pre-sentence custody.

The applicant sought an extension of time to file a notice of appeal and bail pending appeal.

The motions judge granted both applications, finding that the applicant had demonstrated a bona fide intention to appeal within the requisite period, that the delay had been adequately explained, and that the proposed appeal raised arguable grounds of merit.

The court found that the applicant would suffer unnecessary hardship if detained pending appeal and that detention was not necessary in the public interest.

The appellant was convicted of sexual assault following a judge-alone trial.

The trial judge found the complainant's evidence credible and rejected the appellant's testimony that the sexual activity was consensual.

On appeal, the appellant raised six grounds of appeal challenging the conviction.

While the Court of Appeal rejected the first three grounds (misapplication of burden of proof, improper use of silence, and improper use of lack of embellishment), it allowed the appeal on three remaining grounds: the trial judge's failure to inspect the complainant's shirt despite defence counsel's reasonable expectation that he would do so; the trial judge's erroneous admission and use of reply evidence from the appellant's roommate to establish a collusion theory without proper foundation; and most significantly, the trial judge's application of markedly different levels of scrutiny to the credibility of the complainant and the appellant.

The Court found that cumulatively, these errors undermined the fairness of the trial and constituted a miscarriage of justice.