D. Michael Brown

The appellant insurer appealed a decision that found it had a duty to pay defence costs for the respondents in underlying lawsuits.

The insurer had denied coverage based on alleged material misrepresentation in the insurance application regarding the source of financing for the respondents' real estate development companies.

The Court of Appeal found that the failure to disclose syndicated mortgages as the financing source constituted a material misrepresentation by omission, triggering an exclusion clause in the D&O insurance policies.

The appeal was allowed, and the insurer was declared to have no duty to pay defence costs and was entitled to recover previously advanced funds.

The plaintiff brought a motion to strike the defendants' Statement of Defence and dismiss their counterclaim due to repeated failures to attend examinations for discovery and comply with court orders over several years.

The court applied the common sense factors from Advanced Farm Technologies and found the defendants' non-compliance was knowing, intentional, and material to the litigation.

The motion was granted, the defendants' pleadings were struck, and they were noted in default, with costs awarded to the plaintiff.

The appellant, a police officer, appealed his conviction for breach of trust and his 18-month conditional sentence.

He had been acquitted of sexual assault involving the same complainant.

The appeal challenged the conviction on grounds of insufficient reasons, unreasonable verdict, and inconsistent verdicts, and the sentence on grounds of erroneous "double counting" of aggravating factors and insufficient reasons for rejecting a suspended sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding the trial judge's reasons sufficient, the verdict reasonable and reconcilable, and the sentence appropriate.

The Court of Appeal dismissed an appeal by Unit Precast (Breslau) Ltd. and a cross-appeal by Click+Clean GmbH.

Unit Precast appealed the striking out of its claims for conspiracy and intentional interference with contractual relations, and claims asserted personally against Lars Bergmann, arguing the motion judge erred in failing to recognize its business as part of RH20 North America Inc.'s.

Click+Clean GmbH cross-appealed the dismissal of its motion to stay the action in favour of arbitration, contending the motion judge erred in finding the arbitration agreement inoperative.

The Court of Appeal upheld the motion judge's decision, finding Unit Precast's claims were not adequately pleaded and that Click+Clean GmbH waived its right to arbitrate by seeking substantive relief (motion to strike) from the court.

The appellant, M.G., appealed his convictions for assault, uttering threats, and sexual assault causing bodily harm against his wife, and his three-year prison sentence.

The complainant had recanted her allegations prior to trial and again post-conviction, claiming hallucinations.

The Court of Appeal upheld the trial judge's credibility assessment, finding no palpable and overriding error in rejecting the recantation and accepting the complainant's earlier testimony.

The court also found no error in the trial judge's use of prior discreditable conduct evidence or in refusing to reopen the trial or declare a mistrial based on the post-conviction recantation.

On sentencing, the court found the three-year penitentiary sentence proportionate, consistent with jurisprudence for sexual assault involving penetration.

Both the conviction and sentence appeals were dismissed.

The defendant brought a motion to set aside a default judgment in a mortgage enforcement action.

The court dismissed the motion, finding that the defendant failed to move promptly, did not adequately explain the circumstances leading to the default, and lacked an arguable defence on the merits.

The court also noted that the mortgage had matured, rendering the proposed defence largely moot.

The appellant appealed convictions for four counts of sexual assault, one count of assault, and one count of forcible confinement, arguing the trial judge erred in assessing the complainant's credibility and reliability by treating memory gaps and inconsistencies as enhancing factors, and materially misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding the trial judge properly grappled with the difficulties in the complainant's evidence, provided rational explanations for her findings, and that her credibility findings were owed deference.

The appellant, a former high school teacher, appealed his conviction for sexual assault and sexual interference and sought leave to appeal his sentence.

The conviction stemmed from an incident with a former student.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's credibility analysis, including the permissible use of evidence regarding the appellant's breach of professional obligations.

The court also granted leave to appeal the sentence but dismissed the sentence appeal, affirming the 18-month custodial sentence and rejecting arguments that the trial judge erred in using good character as an aggravating factor or that the sentence was unfit.

The appellant appealed his conviction and sentence.

The conviction appeal argued the trial judge erred in assessing the credibility of the sole defense witness.

The sentence appeal sought a conditional sentence instead of the imposed custodial term.

The Court of Appeal found no basis to interfere with the trial judge's credibility assessment, noting the deference owed.

Regarding the sentence, the court upheld the custodial term, emphasizing the serious nature of the offence, which involved the appellant pointing a gun at his son and wife and threatening to kill them.

Leave to appeal sentence was granted, but both the conviction and sentence appeals were dismissed.

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."

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.