David M. Brown

The appellants brought a defamation action against the respondents regarding an article in New Scientist Magazine questioning the reliability of a blood paternity test.

After a 13-day hybrid trial, the trial judge dismissed the action and awarded costs of $1,478,766.64 to the respondents.

The appellants appealed.

The respondents moved for security for costs on appeal, arguing the appeal was frivolous and vexatious and that the appellants had insufficient assets.

The appellants also sought to lift the automatic stay of the trial costs award.

The motion judge dismissed the respondents' motion, finding the appeal was not vexatious, the appellants had sufficient assets to pay appeal costs, and there was no financial hardship to the respondents warranting lifting the stay.

The Crown brought a motion to quash an appeal of a section 11(b) Charter order.

At the opening of the hearing, counsel for the respondent advised that the trial was scheduled for July 29, 2019, and abandoned the appeal at that time.

The Crown withdrew its motion to quash.

The appeal and motion were both dismissed as abandoned, with the understanding that the respondent was not precluded from raising the same issue on a future appeal after trial.

A delinquent child support payor sought a retroactive reduction in his child support obligations extending far into the past, relying on the enactment of the Child Support Guidelines as a change in circumstances.

The motion judge granted the variation, reducing arrears from over $170,000 to $41,642.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to apply the governing principles from D.B.S. v. S.R.G. and Gray v. Rizzi regarding retroactive support variations.

The court held that while the Guidelines did constitute a change in circumstances permitting variation, the payor's conduct, delay, and failure to make full financial disclosure precluded a retroactive reduction extending more than three years before formal notice was given.

The appeal was allowed and no reduction to arrears was ordered.

The appellant was convicted of impaired operation of a motor vehicle causing death, operating a motor vehicle with over 80 mg of alcohol per 100 ml of blood, and two counts of driving while impaired causing bodily harm, following a head-on collision that resulted in one death and injuries to two passengers.

The appellant appealed on four grounds: alleged violation of s. 8 Charter rights regarding blood sample seizure; alleged violation of s. 10(b) Charter rights regarding access to counsel; alleged misapprehension of evidence regarding a third vehicle; and alleged error in rejecting evidence of bolus drinking prior to the collision.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

An appellant found not criminally responsible for theft under $5,000 appealed the Ontario Review Board's disposition ordering his continued detention at a forensic mental health facility.

The appellant argued there was no evidence he posed a significant risk of physical or psychological violence to the public, citing the absence of violent behaviour in recent years.

The Court of Appeal dismissed the appeal, finding ample evidence supported the Board's finding that the appellant posed a significant threat to public safety based on his mental health history, criminal record, aggressive behaviour in detention, resistance to treatment, risk assessment scores, and lack of insight into his condition.

The appellant appealed the Superior Court's dismissal of his habeas corpus application challenging the revocation of his day parole by the Parole Board of Canada.

The appellant had been released on day parole in April 2016 after serving a sentence for robbery and firearm offences, but his parole was revoked in April 2017 on the basis that he presented an undue risk to society.

The appellant contended he was detained during a parole disciplinary meeting without being informed of his right to counsel, contrary to section 10 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal dismissed the appeal as moot because the appellant had been released on statutory release while the appeal was pending.

The court also set aside the costs order, finding that the habeas corpus application challenging parole revocation was criminal in nature rather than civil, and therefore costs could not be awarded.

The moving party sought an extension of time to file a motion for leave to appeal from a Divisional Court order dismissing his appeal from a Landlord and Tenant Board decision.

The Board had ordered the moving party to pay the respondent $4,885.19 for damages arising from a bed bug infestation.

The issue before the Board was whether the rental accommodation fell within the exemption under section 5(i) of the Residential Tenancies Act, 2006 for shared accommodation.

The Divisional Court dismissed the appeal as it did not raise a question of law but rather challenged factual findings.

The motion judge dismissed the extension request, finding little merit to the proposed appeal given the limited right of appeal available under the RTA.

An application for interim release pending a new trial ordered by the Court of Appeal.

The applicant had been convicted of assault-related offences and sentenced to 4.5 years imprisonment.

Following release on statutory release and subsequent immigration detention, the Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial.

The applicant sought interim release pending the new trial.

The motions judge granted the application on consent terms but noted that the application should have been brought before the Superior Court of Justice rather than the Court of Appeal, as the Superior Court had concurrent jurisdiction at the time the application was made.

This appeal concerns a matrimonial dispute over the equalization of net family property and a costs award.

The appellant challenged the trial judge's treatment of promissory notes (debts owed by the appellant to his corporations) in calculating net family property under a marriage contract that excluded corporate assets.

The appellant also sought leave to appeal a substantial costs award of $490,000.

The Court of Appeal upheld the trial judge's decision on both issues, finding no error in including the promissory notes as personal debts not excluded by the marriage contract, and finding the costs award was justified given the appellant's unreasonable litigation tactics.

The appellant appealed his indeterminate sentence as a dangerous offender, arguing that the sentencing judge erred by rejecting a joint sentencing submission for a determinate sentence followed by a long-term supervision order.

The appellant had pleaded guilty to sexually assaulting four children in 2004 and received a determinate sentence.

While on probation, he sexually assaulted two of his own children and breached a prohibition order.

The sentencing judge imposed an indeterminate sentence based on psychiatric evidence that the appellant's pedophilia could not be managed in the community and that he posed a danger to children.

The Court of Appeal upheld the indeterminate sentence, finding that the sentencing judge properly applied the legal test and that the evidence supported the conclusion that the appellant could not be managed in the community.

The appellant was convicted of break and enter of a dwelling house and other offences based primarily on DNA evidence found in a glove discovered at the crime scene.

The Crown admitted in an agreed statement of fact that the appellant's DNA was found in the glove but called no expert evidence regarding DNA transfer characteristics or whether the appellant's DNA was the sole profile on the glove.

The Court of Appeal found the verdicts unreasonable, holding that the DNA evidence alone was incapable of bearing the burden of proving the appellant left the glove at the scene.

The convictions were set aside and acquittals entered.

The appellant, former CEO and chairman of Sino-Forest Corporation (SFC), appealed a trial judgment awarding damages of $2.627 billion plus $5 million in punitive damages for fraud and breach of fiduciary duty.

The appellant argued that the litigation trust lacked standing to pursue claims that overlapped with class actions, that the damages award created double recovery risks, and that the transfer of assets constituted an election barring the claim.

The Court of Appeal upheld the trial judgment, finding that the litigation trust held separate and distinct corporate causes of action from those of individual shareholders and noteholders in the class actions, that the damages award was properly calculated based on SFC's losses, and that no election doctrine applied.

The appellant was convicted of importing almost two kilograms of cocaine and sentenced to six years imprisonment, less credit for pre-trial custody on a 1.5:1 basis plus an additional 90-day credit for harsh conditions in remand custody.

The appellant appealed, arguing that sections 719(1) and 719(3.1) of the Criminal Code violated her Charter rights under sections 7 and 12 by effectively requiring her to spend significantly longer in custody before becoming eligible for parole than an offender who had received bail.

The Court of Appeal dismissed the appeal, holding that parole eligibility questions are not a component of the determination of a fit sentence, and that neither section 719(1) nor 719(3.1) delays parole eligibility or requires offenders denied bail to serve longer sentences than those granted bail.

The court also found no material misapprehension of evidence regarding the appellant's remorse.

Two consolidated appeals arising from a family law proceeding between parents concerning custody and access to their child.

The respondent appealed an order dismissing a recusal application against a judge, and the appellant appealed an order denying leave to amend pleadings to seek custody.

The court found the case had become a procedural morass characterized by lack of good faith efforts to resolve issues.

Both appeals were dismissed.

The court emphasized that the appellant had pursued indirect procedural tactics rather than direct routes of review, and that the custody issue had been finally determined by a subsequent order that was not appealed.

The appellant appealed his conviction for second degree murder and his sentence of 15 years' parole ineligibility.

The victim was fatally stabbed in the head with a screwdriver during a car break-in.

The Crown's case relied on testimony from an associate that the appellant struck the fatal blow, while the appellant claimed the associate was responsible.

The appellant raised four grounds of appeal: admission of similar fact evidence, failure to give a proper limiting instruction on such evidence, permitting lengthy re-examination of a witness, and admission of an autopsy photograph.

The appellant also appealed his sentence.

The Court of Appeal dismissed all grounds of appeal and upheld both the conviction and sentence.

The appellant was convicted of aggravated assault and assault with a weapon following an incident on July 23, 2014, where she stabbed and bit the complainant with scissors.

The appellant was acquitted on the count of unlawful entry.

On appeal, the appellant raised three grounds: (1) that the trial judge failed to consider her defence of lawful ejection of trespassers under s. 35 of the Criminal Code; (2) that the trial judge erred in admitting evidence of her discreditable conduct; and (3) that her assault convictions conflicted with her acquittal on the unlawful entry count.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The appellant appealed his sentence of 10 years' imprisonment imposed following his guilty plea to two counts of operating a motor vehicle while impaired and causing death, two counts of criminal negligence causing death, two counts of operating a motor vehicle while impaired and causing bodily harm, and two counts of criminal negligence causing bodily harm.

The collision occurred when the appellant, heavily intoxicated and driving at 187 km/hr, ran a red light and struck another vehicle, killing two passengers and seriously injuring two others.

The Court of Appeal allowed the appeal and reduced the sentence to seven years, finding the original sentence demonstrably unfit.

The court also set aside victim surcharges and varied the driving prohibition to eight years commencing at the end of imprisonment.

A dissenting opinion would have reduced the sentence to six years, placing greater weight on Gladue factors relating to intergenerational trauma.

The appellants failed to appear at the appeal hearing before the Court of Appeal for Ontario.

Despite receiving notice of the adjournment, they did not contact the court regarding the status of the appeal.

The court reviewed the written materials and determined that the appeal had no reasonable prospect of success.

The appeal was dismissed and costs were awarded to the respondent.

The appellants appealed their convictions for human trafficking and procurement into prostitution.

The trial judge found that while the complainant voluntarily entered the sex trade, the appellants subsequently exercised control over her, withheld her earnings, and forced her to work against her wishes.

The appellants challenged the verdicts as unreasonable, alleging the trial judge misapprehended evidence, failed to reconcile inconsistencies, and provided insufficient reasons.

The Court of Appeal upheld the convictions, finding ample evidence supported the verdicts and the trial judge properly addressed credibility issues and deficiencies in the complainant's evidence.

An employee with approximately 30 years of continuous service was dismissed without cause from part-time employment.

The employer relied on a written employment agreement purporting to waive the employee's years of service and common law entitlement to reasonable notice, providing only statutory minimums under the Employment Standards Act.

The motion judge found the employee had not waived his years of service for statutory purposes but was bound by a 2006 waiver of common law notice entitlements.

The Court of Appeal upheld this decision, finding the waiver was clear and unequivocal, the 2013 transition to part-time employment constituted an amendment rather than a new contract, and there was adequate consideration for the amendments.

The court also rejected the employer's cross-appeal on mitigation, finding the employee had made reasonable efforts to secure comparable employment.