D. Michael Brown

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 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.

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.

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.

The defendants brought a motion under Rule 24.1.05 to exempt the action from mandatory mediation.

The court found that the plaintiff had engaged in a vexatious course of conduct, including sending abusive and inflammatory correspondence to the court-appointed mediator.

The court concluded that the plaintiff had no bona fide intention to mediate and that compelling mediation would only delay the fair resolution of the litigation and unnecessarily increase costs.

The motion was granted, and the defendants were awarded costs on a substantial indemnity scale due to the plaintiff's egregious conduct.

The Debtors (Ten 4 System Ltd., 1000043321 Ontario Inc., and 1000122550 Ontario Inc.) sought leave to appeal an order appointing a receiver over their assets, pursuant to s. 193(e) of the Bankruptcy and Insolvency Act.

The Royal Bank of Canada, the creditor, opposed the motion.

The court dismissed the motion for leave to appeal, finding that the proposed grounds of appeal lacked prima facie merit, did not raise issues of general importance, and that granting leave would unduly hinder the receivership administration.

Costs were awarded to RBC.

The Crown appealed the conditional sentences imposed on the respondent for trafficking in cocaine and crystal methamphetamine, and possession of proceeds of crime, arguing errors in principle.

The Court of Appeal found the sentencing judge erred by imposing a conditional sentence after determining a three-year penitentiary term was fit, and by using pre-trial custody credits to make a conditional sentence available, contrary to R. v. Fice.

While upholding the three-year global sentence as fit due to mitigating Gladue factors, plea, remorse, and rehabilitation, the Court substituted a 16-month prison sentence but stayed its operation, allowing the probation order to remain.

The defendant, Scott Allen Smith, brought a motion seeking security for costs from the plaintiff, Nevada Tours, a Mexican corporation, on the grounds that the plaintiff was ordinarily resident outside Ontario.

The plaintiff opposed, arguing the motion was barred by s. 249(3) of the Business Corporations Act (OBCA) as its claim against Smith was primarily for oppression.

The court dismissed the motion, finding that the plaintiff's claim against Smith was in pith and substance an oppression claim, thus triggering the s. 249(3) prohibition against security for costs.

The court also found the plaintiff had sufficiently pleaded facts to potentially qualify as a "complainant" under the OBCA.

The defendant in a defamation action brought a motion for the production and preservation of documents from non-parties, as well as a sealing order and publication ban regarding the identities and medical information of two non-party insured individuals.

The court granted the unopposed production orders.

Applying the Sherman Estate test, the court granted the sealing order and publication ban for one insured whose identity remained anonymous, but dismissed the request for the other insured whose identity was already public and where the scope of the requested health information ban was too vague.

The appellant, Joshua Rodrigues, appealed his conviction for unreasonable verdict and his sentence regarding a victim fee surcharge.

The conviction appeal argued that the trial judge used illogical reasoning to reject the appellant's testimony.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were detailed, comprehensive, and not illogical or inconsistent with the evidence.

The appeal against sentence, specifically concerning the $1,800 victim fee surcharge, was allowed on consent, and that portion of the sentence order was set aside.

The appellant, Dmitri Davidov, appealed his conviction for importation and conspiracy to import cocaine, and sought leave to appeal a non-communication order.

The Court of Appeal found that the trial judge erred by improperly using inconsistencies between the appellant's pre-trial police statement and trial testimony to infer guilt, rather than solely for credibility assessment.

However, the court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, finding the evidence of guilt overwhelming and the conviction inevitable.

The appeal from conviction was dismissed.

Leave to appeal the non-communication order was granted, but the sentence appeal was also dismissed, as the order was deemed a reasonable exercise of discretion to protect witnesses.

This motion concerned the costs of a plaintiff's motion on undertakings and refusals.

The substantive issues were resolved at the outset of the hearing when the defendants capitulated to all of the plaintiff's demands.

The court distinguished the case from situations where parties settle "except for costs" before the hearing, noting the defendants' last-minute concession after the plaintiff had fully prepared for an opposed motion and the defendants had filed no responding materials.

The court found the defendants' strategy was one of delay to avoid cost consequences.

Consequently, the plaintiff was awarded partial indemnity costs of $15,000, inclusive of taxes and disbursements, for the motion, rejecting the plaintiff's request for full indemnity or costs incurred prior to the motion's commencement.

The appellant appealed an extradition order and sought judicial review of the Minister of Justice's surrender order related to fraud charges in the U.S. The core issues included an alleged s. 8 Charter breach regarding the use of passport photographs, a request for additional disclosure, and an argument of improper delegation by the Minister.

The Court of Appeal dismissed the appeal and judicial review, finding no reasonable expectation of privacy in passport photos, no basis for further disclosure, and that the Minister's decision was reasonable and entitled to deference.

The appellant, convicted of sexual assault and sexual interference, appealed his conviction, arguing the trial judge erred in assessing and relying on the complainant's voice identification evidence.

The Court of Appeal dismissed the appeal, finding that the voice recognition evidence was a minor part of a broader constellation of evidence, including DNA, physical injuries, and the complainant's visual identification of the appellant.

The court held that the trial judge's overall scrutiny of the complainant's evidence, despite minor mischaracterizations, was sufficient to address reliability concerns.

The appellant, Jennifer Pyne, appealed her convictions on several drug-related charges and sought leave to appeal her sentence, contending an error on the warrant of committal.

The Court of Appeal dismissed the conviction appeal, finding no misapprehension of evidence by the trial judge regarding the location of discarded drugs.

The court also dismissed the sentence appeal, determining that while the sentencing judge made a minor calculation error in her oral reasons, the warrant of committal accurately reflected the imposed sentence, thus requiring no rectification.

The appellant, Avaya Canada Corporation, appealed a summary judgment decision that awarded the respondent, John Lynch, 30 months' notice for wrongful dismissal.

Avaya contended the motion judge erred by awarding a notice period exceeding the relief sought, misapplying Bardal factors for reasonable notice, and incorrectly concluding Lynch took reasonable steps to mitigate damages.

The Court of Appeal dismissed the appeal, finding no merit in Avaya's arguments.

The court affirmed that a notice period could exceed the initial claim if argued on that basis without prejudice, upheld the 30-month notice period as justified by "exceptional circumstances" under Bardal, and found no error in the motion judge's mitigation findings.