Michal Fairburn

The appellant pleaded guilty to impaired driving causing bodily harm, refusing to provide a breath sample, and failing to stop at the scene of an accident.

Counsel presented a joint submission for 40 days' imprisonment.

The trial judge rejected the joint submission after hearing a victim impact statement and the Crown withdrew its support for the submission.

The trial judge refused to allow the appellant to withdraw his guilty plea and imposed a sentence of 12 months and one day.

The Court of Appeal allowed the appeal, finding the guilty plea was uninformed because the appellant did not know the Crown would withdraw its support for the joint submission, and that allowing the plea to stand would constitute a miscarriage of justice.

On appeal from a trial decision regarding custody and access of a six-year-old child, the Court of Appeal found that the trial judge erred by failing to apply the "maximum contact" principle under section 16(10) of the Divorce Act.

The trial judge had ordered that the child's primary residence remain with the mother, with the father receiving only one overnight per week and alternating weekends, and had granted joint custody in name only by giving the mother ultimate decision-making authority.

The Court of Appeal allowed the appeal and set aside the orders respecting parenting time and decision-making, requiring the parties to provide written submissions on the allocation of parenting time and decision-making responsibilities in a parallel parenting model.

The appellants appealed a motion judge's discretionary decision to deny their request for an extension of time to set an action down for trial.

The appellants claimed the motion judge committed legal errors and palpable and overriding errors of fact.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to provide an acceptable explanation for the delay and failed to demonstrate that the respondent would not suffer non-compensable prejudice.

The court found the medical evidence inadequate to establish that the appellant's medical condition prevented prosecution of the lawsuit, and noted that despite the pre-existing condition, the appellant had advanced litigation until 2015 and pursued another related action to conclusion in 2018.

The appeal was dismissed with costs awarded to the respondent.

The Court of Appeal for Ontario heard motions to quash two appeals brought by 108 Media Corporation from decisions of an application judge.

The first appeal concerned a refusal to grant leave to appeal from an arbitral award under section 45(1) of the Arbitration Act.

The second appeal concerned a decision recognizing and enforcing the arbitral award dated December 11, 2017.

The court found that no appeal lies from a refusal to grant leave to appeal on the merits and that section 50(3) of the Arbitration Act deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances not present here.

Both appeals were quashed and costs were awarded to BGOI Films Inc. on a higher scale due to the appellant's dilatory litigation strategy.

An appeal concerning reasonable apprehension of bias and adjudicative independence in administrative tribunal decision-making.

The applicant sought a determination that her motor vehicle accident injuries met the statutory threshold for catastrophic impairment under the Statutory Accident Benefits Schedule.

The Licence Appeal Tribunal adjudicator initially determined the threshold was not met.

An anonymous letter subsequently revealed that the executive chair of the tribunal cluster had reviewed and altered the adjudicator's draft decision before release.

The Divisional Court found a reasonable apprehension of lack of adjudicative independence due to the imposed consultation process lacking procedural safeguards.

The Court of Appeal upheld this finding, emphasizing that consultation cannot be imposed by a superior level of authority without the adjudicator's consent and that robust procedural protections are required to safeguard independence.

An employee-owned engineering firm terminated a 31-year employee without cause and paid him for his shares based on the fair value 30 days after termination, as specified in the shareholders' agreement.

The employee sought damages for wrongful dismissal and claimed he was entitled to share value calculated at the end of the reasonable notice period (26 months) plus share bonuses accrued during that period.

The motion judge granted partial summary judgment in the employee's favour, relying on the principle that a wrongfully dismissed employee should be placed in the position they would have been in if lawfully terminated.

The appellate court reversed, holding that the employee's contractual rights under the shareholders' agreement are separate and distinct from his common law employment rights, and that the shareholders' agreement clearly triggered the share repurchase process upon termination of employment, not at the end of the notice period.

The appellant appealed a conviction for sexual assault, arguing that the trial judge erred by failing to consider the absence of evidence that anyone heard the alleged assault.

The appellant contended that given the complainant's evidence, it was implausible that no one would have heard anything if the assault had actually occurred.

The Court of Appeal dismissed the appeal, finding that the trial judge understood and correctly applied the law regarding absence of evidence and reasonable doubt, and that the trial judge's thorough reasons demonstrated a clear path to conviction based on the facts found.

The appellant appealed a jury verdict in a premises liability case arising from a slip and fall.

The jury found that the respondents exercised reasonable care to ensure the appellant was reasonably safe on the premises.

The appellant argued there was no evidence to support the verdict.

The Court of Appeal upheld the jury verdict, applying the stringent test for setting aside jury verdicts, which requires the verdict to be so plainly unreasonable and unjust that no jury acting judicially could have reached it.

The court found the appellant had merely asked the jury to reject defence evidence in favour of plaintiff's evidence, which was entirely within the jury's purview.

The plaintiff, an employee of Darwin Productions Inc., claimed unpaid salary and a percentage ownership interest based on an alleged employment agreement.

The respondents denied the terms and moved for summary judgment on the basis that the claim was statute-barred.

The motion judge granted the summary judgment, finding no evidence of a demand obligation and concluding the cause of action arose by December 2009.

The intervenor law firm appealed, arguing the motion judge erred by failing to address anticipatory breach of contract and by finding sufficient evidence to decide factual issues on summary judgment.

The Court of Appeal allowed the appeal, finding the motion judge erred in law by not addressing the anticipatory breach argument and that there was a genuine issue requiring trial regarding the terms of the employment agreement.

Appeal from a motion judge's decision ordering release of a cryopreserved in vitro embryo to the respondent ex-wife for her reproductive use.

The motion judge applied contract and property law principles to conclude the embryo should be released based on the parties' prior contractual agreement.

The Court of Appeal allowed the appeal, holding that the Assisted Human Reproduction Act and its regulations establish a consent-based model, not a contract-based model.

The parties remain "donors" under the regulations despite divorce, and the appellant retained the right to withdraw his consent under section 14(3) of the Consent Regulations.

The court found that consent cannot be frozen in time and that the statutory protections cannot be contracted away.

An appeal from a Superior Court order that set aside an Assessment Officer's Report and Certificate reducing a solicitor's account from $149,635.52 to $26,375.00.

The solicitor had billed for services related to a $14 million real estate transaction without maintaining proper time dockets or obtaining client authorization before withdrawing fees from the client's trust account.

The Court of Appeal allowed the appeal, finding that the application judge erred in finding bias against the Assessment Officer and in failing to apply the proper quantum meruit analysis.

The Court reassessed the account at $100,000, holding that while the solicitor's record-keeping deficiencies warranted a significant reduction, the application judge's mechanical hourly rate calculation failed to account for the complexity, importance, and successful outcome of the transaction.

The appellants appealed a summary judgment decision granting the respondent judgment on its claim without set-off or stay pending the counterclaim.

The appellants raised three grounds of appeal: (1) that the motion judge failed to apply the appropriate test on summary judgment regarding equitable set-off and the interconnection of the claims; (2) that the motion judge erred in granting partial summary judgment; and (3) that the motion judge erred in piercing the corporate veil to impose personal liability on the individual appellant.

The Court of Appeal upheld the lower court decision on all grounds, finding that the claims were not so closely connected as to warrant equitable set-off, that no inconsistency issues arose from the partial judgment, and that the circumstances supported personal liability based on the individual's control and direction of the company's actions.

The appellant appealed the dismissal of his family law proceedings under rule 1(8) of the Family Law Rules.

The motion judge had given the appellant an opportunity to make a partial payment of $5,000 to avoid dismissal.

The appellant failed to make this payment.

The motion judge considered the appellant's failure to comply with this order, his history of non-compliance with court orders dating back to 2006, and multiple costs orders against him.

Finding no exceptional circumstances warranting discretionary relief, the motion judge dismissed the proceedings.

The Court of Appeal found no error in the motion judge's exercise of discretion and dismissed the appeal.

The appellants appealed an order of the Superior Court of Justice dated June 18, 2018.

The appeal was allowed on consent, as counsel for the appellants explained that relevant authorities were not brought to the attention of the motion judge.

The order was set aside and replaced with an order as per the consent order filed.

The appellant appealed a trial judge's finding that the parties had reached an oral agreement whereby the respondents had an option to purchase unit 116 from the appellant.

The appellant disputed both the existence of the agreement and whether there was sufficient part performance to take the agreement out of the Statute of Frauds.

The Court of Appeal upheld the trial judge's findings, finding no legal error in the determination that consensus had been reached on material terms, that part performance was established through the provision of free ski lessons, and that the trial judge's credibility findings were entitled to deference.

The appellant appealed a summary judgment granted in favour of the respondent.

The appellant argued that the motion judge erred by deciding the case on summary judgment when the record was deficient.

The Court of Appeal rejected this submission, finding that the motion judge was able to analyze the legal relationship based on the evidentiary record.

The court determined that the appellant was the purchaser of travel products on behalf of its customers and the respondent was the seller, making the appellant responsible for the invoices.

The appeal was dismissed with costs.

The appellant appealed her conviction for fraud exceeding $5,000 arising from misrepresentations related to Ontario Works social benefits.

The appellant initially qualified for benefits as a sole-support parent and was obligated to report changes in income, assets, or living circumstances.

The Crown alleged the appellant failed to disclose a change of residence and a change in her benefit unit status.

The trial judge convicted the appellant without making clear findings on whether she was co-habiting with Mr. Weedmark and misapprehended evidence regarding the tenancy agreement.

The Court of Appeal found these errors were material to the verdict and allowed the appeal.

Two appellants were convicted of sexual assault and related offences following a trial in the Ontario Court of Justice.

The appellants appealed their convictions on two grounds: (1) the trial judge erred in finding that text messages and photographs had not been properly authenticated and thus had no probative value, and (2) the trial judge misapprehended evidence relating to photographs upon which one complainant was cross-examined.

The appellants sought to adduce fresh evidence from a computer forensic examiner regarding the authenticity and integrity of the electronic documents and from trial counsel regarding due diligence.

The Court of Appeal allowed the appeal, finding that the trial judge applied an overly stringent authentication standard, misapprehended material evidence, and that the fresh evidence satisfied the conditions for admission on appeal.

A new trial was ordered.

The appellant sought review of a motion judge's order denying an extension of time to appeal from a summary judgment decision.

The motion judge applied the correct legal test, considering delay, reasons for delay, potential merit of the appeal, and the interests of justice.

Finding no apparent merit to the appeal on the limitation period issue and no basis to impugn the lower court's decision, the motion judge denied the extension.

The appellate panel upheld this decision.

The appellant appealed his conviction for obtaining credit by false pretences and inducing a person to act on a false document.

The appellant argued that the trial judge's finding that the mortgage broker could have been naive was inconsistent with a finding of fraudulent conduct beyond a reasonable doubt.

The Court of Appeal rejected this submission, finding that the trial judge's determination that the appellant actively participated in drafting false rental agreements and submitted them knowing they were false was sufficient to ground the conviction.

The appeal was dismissed.