Patrick J. Monahan

This appeal concerns the certification of a class proceeding and the granting of leave to proceed with a secondary market misrepresentation claim under the Securities Act.

The respondent, a former shareholder of Akumin Inc., sought to certify a class action on behalf of purchasers of Akumin securities (common shares and secured notes) alleging misrepresentations in financial statements and seeking relief under both statutory provisions and common law negligence.

The appellants challenged both the leave order and the certification order, arguing that certain disclosures did not constitute "public corrections," that an efficient market requirement applied to secondary market claims, and that common law negligence claims should not be certified alongside statutory claims.

The Court of Appeal upheld the motion judge's decisions, clarifying the law on public corrections, rejecting an efficient market requirement, and confirming that common law claims can be certified alongside statutory claims.

Pine Glen Thorold Inc. appealed the dismissal of its action against Rolling Meadows Land Development Corporation and Glen Gordon.

The motion judge had struck the claim on the basis that it did not disclose reasonable causes of action.

The Court of Appeal dismissed the appeal, but on different grounds.

Rather than analyzing each individual cause of action, the court found that the claim as a whole constituted an abuse of process.

Pine Glen sought to relitigate issues that were already decided or could have been raised in prior applications between the parties, and its claim was primarily based on the respondents' conduct during the previous litigation.

The court held that absent exceptional circumstances (such as viable claims for malicious prosecution or abuse of process), parties should not be permitted to pursue civil actions based on the conduct of prior litigation.

The appellants, operators of a long-term care home, appealed a motion judge's decision dismissing their defamation action under section 137.1 of the Courts of Justice Act (anti-SLAPP motion).

The respondent had posted approximately 100 tweets over three years on anonymous accounts alleging elder abuse and serious wrongdoing at the facility.

The motion judge found the tweets related to a matter of public interest and dismissed the action.

The Court of Appeal allowed the appeal, finding the motion judge made reviewable errors in her section 137.1(4) analysis by failing to properly assess whether the defamation claim had merit and whether the appellants had suffered harm, and by assuming the respondent's expression had value without conducting the necessary preliminary analysis.

The moving party, Hermina Developments Inc., sought a stay of an order permitting the respondents to sell a 26.7-acre parcel of land in Woodstock, Ontario, pending appeal.

The Court of Appeal for Ontario dismissed the motion, finding that while there was a serious issue to be tried, Hermina failed to establish irreparable harm or that the balance of convenience favoured a stay.

The court held that any losses could be compensated by damages and that the property was not unique.

The respondents were awarded costs.

The appellant, Nathalie Xian Yi Yan, sought a panel review of a motion judge’s decision dismissing her motion for a stay pending appeal.

The underlying appeal was from an order declaring her a vexatious litigant under section 140 of the Courts of Justice Act.

The Court of Appeal dismissed the review motion, holding that Yan had not obtained leave to bring the motion as required by the vexatious litigant order and the statute.

The court reiterated that a person declared a vexatious litigant may file a notice of appeal without leave, but requires leave for any motions in the appeal.

The court found no error in the motion judge’s decision and awarded costs to the College.

The Court of Appeal for Ontario dismissed the appeal of Ilinka Armstrong and Dean Tully from an order removing them as estate trustees for the estate of Dan Muscat and denied leave to appeal a related costs order.

The court found that Armstrong was in a conflict of interest due to her romantic relationship with a potential purchaser of the estate’s business, failed to disclose this conflict, and did not undertake proper due diligence.

The court upheld the application judge’s decision to remove the trustees and order them to pay costs personally.

The Court of Appeal for Ontario dismissed Milan Janic’s appeal from a motion to change child support and expense sharing, upholding the motion judge’s findings on imputed income, disclosure, and conflict of interest.

The court found no error in the treatment of financial evidence, the imputation of income, or the application of federal law, and awarded costs to the respondent.

The Court of Appeal for Ontario dismissed the appeal by the franchisor and its associates from a trial judgment granting rescission and damages to the franchisee under the Arthur Wishart Act (Franchise Disclosure), 2000.

The court upheld the trial judge’s findings that the statutory exemption from disclosure did not apply, that the franchisee validly rescinded the franchise and ancillary agreements, and that the franchisee was entitled to statutory compensation and substantial indemnity costs.

The court found no error in the trial judge’s assessment of damages or costs.

The Court of Appeal for Ontario dismissed the appeals of David Beak and Yostin Murillo from their convictions for first degree murder and sexual assault in the killing of Rhoderie Estrada.

The court found that the trial judge’s instructions to the jury on constructive first degree murder, post-offence conduct, and the handling of evidence and objections were accurate and complete.

The grounds of appeal advanced by both appellants, including issues of causation, post-offence conduct, jury instructions, and procedural fairness, were all rejected.

The appellant, M.R., appealed from a Superior Court order upholding the Consent and Capacity Board’s finding that he lacked capacity to consent to treatment.

The respondent, Dr. Achal Mishra, moved to adduce fresh evidence showing that M.R. was found capable of consenting to treatment in July 2024 and has maintained capacity since.

The Court of Appeal found the appeal to be moot, as there was no longer a live issue, and dismissed the appeal, admitting the fresh evidence and making no order as to costs.

This costs endorsement follows the dismissal of the appellant’s appeal.

The Court of Appeal for Ontario considered the parties’ written submissions on costs.

The respondents sought full recovery of $19,300.40, citing the appeal as unnecessary and the appellant’s arguments as unrelated to the application judge’s reasoning.

The appellant submitted that $5,000 would be reasonable and proportionate, noting their own bill of costs was $15,171.20.

The court found no basis for an elevated costs award but determined the appellant’s suggested amount was too low.

The respondents were awarded $11,500, all-inclusive, on a partial indemnity basis.

The appellant, Harvin Fraser, appealed his conviction for sexual assault, arguing that the trial judge misapprehended the evidence regarding whether the complainant’s sexual interaction with the appellant included oral sex as well as sexual intercourse.

The Court of Appeal found no error in the trial judge’s assessment of the evidence and dismissed the appeal, deferring to the trial judge’s credibility and reliability findings.

The applicant, Melissa Hart, sought to re-open her application for leave to appeal a 2015 summary conviction for operating a motor vehicle with a blood alcohol concentration above the legal limit.

This was her third such application, each raising similar Charter arguments previously dismissed by the courts.

The Court of Appeal for Ontario found no material change in circumstances and dismissed the application as entirely without merit.

The court further prohibited Ms. Hart from filing any further documents regarding her 2015 conviction without written permission from a judge of the court.

The appellant, John Dunford, appealed the dismissal of his claim for damages against the Hamilton-Wentworth District School Board and Hamilton Health Sciences Corporation.

Dunford alleged that Dr. James E. Anderson, who was involved with the Cool School program, sexually abused him and that the hospital was vicariously liable.

The trial judge found that Dr. Anderson committed the tort of sexual battery but concluded the hospital was not vicariously liable due to insufficient closeness in the relationship.

The Court of Appeal upheld the trial judge’s findings, holding that the correct legal test was applied and that the policy rationales for vicarious liability were properly considered.

The appeal was dismissed, and costs were awarded to the respondents.

The Court of Appeal for Ontario granted a motion by Alyange Holdings Inc. to strike portions of the responding parties’ Appeal Book and Compendium that were not before the motion judge.

The court held that the appeal record must be limited to evidence before the lower court, rejecting the respondents’ argument that documents from an earlier application could be included.

The court emphasized the principles of finality and fairness, and awarded costs to the moving party.

The Court of Appeal for Ontario considered the constitutionality of two sentencing provisions of the Youth Criminal Justice Act (YCJA) relating to deferred custody and supervision orders (DCSOs): ss. 42(2)(p) and 42(5)(a).

The sentencing judge had found these provisions unconstitutional and imposed a DCSO sentence not otherwise available.

On appeal, the Court of Appeal found that the sentencing judge erred in her constitutional analysis and in failing to apply the impugned provisions and other relevant sections of the YCJA.

The Court substituted a sentence of 18 months’ probation and a 100-hour community service order, with credit for time served under the DCSO.

The Court of Appeal for Ontario dismissed the appellants’ appeal from a trial judgment awarding $160,000 to the respondent for loans that were not repaid.

The trial judge’s decision was based on unjust enrichment, as there was no agreement on the term or interest rate of the loans.

The Court upheld the trial judge’s refusal to allow the appellants to withdraw deemed admissions or to introduce late evidence, finding no procedural unfairness.

The Court also found no error in the exclusion of a late-proposed witness and in the trial judge’s unjust enrichment analysis.

The Court of Appeal for Ontario dismissed a motion for a panel review of a motion judge’s decision denying an extension of time to perfect an appeal in a family law matter.

The panel found no error in the motion judge’s exercise of discretion, holding that the correct legal principles were applied and the result was reasonable.

The appellant’s arguments regarding the respondent’s opposition to the motion were rejected based on the record.

The motion was dismissed without costs.

The Court of Appeal for Ontario dismissed the appeal by Sa Yan and Royal LePage Signature Realty regarding the return of a $60,000 deposit following the termination of an assignment of an agreement of purchase and sale.

The court upheld the application judge’s finding that the respondents, Christine Yui and Michelle Yui, properly exercised a lawyer approval condition to terminate the agreement and were entitled to the return of their deposit.

The court also declined to vary the order to include pre- and post-judgment interest, as the respondents had not brought a cross-appeal.

The Court of Appeal for Ontario issued a costs endorsement after the appellant, Boshra Mikhail, abandoned his appeal less than two weeks before the scheduled hearing.

The court awarded the respondent, Eman Mikhail, costs of $10,000, inclusive of disbursements and applicable taxes, after considering written submissions from both parties.