David M. Brown

The appellant was convicted of second degree murder in connection with a home invasion robbery in Minden, Ontario.

The appellant and three co-accused drove from Scarborough to commit the robbery, which resulted in the death of Ryan Kennedy.

The appellant struck Kennedy in the jaw with the butt of a pellet gun after Kennedy had already been struck twice on the head with a baseball bat by a co-accused.

The appellant appealed on two grounds: first, that there was insufficient evidence that his blow was a significant contributing cause of death, and second, that a statement by the trial Crown in closing argument caused a miscarriage of justice.

The Court of Appeal dismissed the appeal, finding that the jury's verdict was reasonable and that any improper Crown statement did not materially influence the verdict.

The respondent and the deceased operated a jewellery store through a company and each named the other as sole beneficiary of a life insurance policy.

Following the deceased's death, the respondent sought a declaration that he was entitled to the insurance proceeds and judgment on a promissory note.

The estate claimed the proceeds were subject to a buy-sell agreement and constructive trust.

The motion judge granted partial summary judgment declaring the respondent entitled to the proceeds and dismissed the estate's counterclaim, but directed the promissory note claim to trial.

The appeal was dismissed.

The appellants appealed a motion judge's decision dismissing their action against the respondent insurance company for denial of accident benefits.

The action was commenced on August 25, 2015, more than two years after the respondent's final denial of benefits on January 29, 2013.

The Court of Appeal upheld the motion judge's conclusion that the action was statute barred under the applicable limitation period.

The appellants' assertion of bias against the motion judge was rejected as having no merit on the record.

The appellant appealed from an order under section 140 of the Courts of Justice Act that prohibited him and any company he controlled from instituting or continuing any proceedings in any court except by leave of a Superior Court judge.

The appellant raised both substantive and procedural grounds of appeal, including claims that he was denied natural justice by not being allowed to give viva voce evidence, call witnesses, or convert the application into an action.

The Court of Appeal dismissed the appeal, finding no procedural error and no palpable and overriding error in the application judge's factual conclusions or legal analysis.

The appellant appealed from an order refusing to reinstate an action that had been dismissed for delay.

The action was originally commenced in February 2011 against the respondent for $4,000,000 in damages.

The respondent failed to file a defence, but the registrar declined to sign default judgment.

The appellant failed to bring a motion for judgment, and the action was dismissed for delay in October 2011.

The appellant claimed she did not discover the dismissal until January 2018.

The motion judge found the delay inordinate, unsatisfactorily explained, and that reinstatement would undermine the finality principle.

The Court of Appeal upheld this decision and dismissed the appeal.

The appellant appealed a summary judgment dismissal of her negligence action against a lawyer and his law firm.

The appellant alleged the respondent lawyer negligently counselled her to accept an improvident settlement of a motor vehicle accident tort claim and failed to report two other settlements to the Ontario Disability Support Program.

The motion judge found the settlement was not improvident but rather favourable to the appellant and in her best interests, and found no negligence in the failure to report the settlements to ODSP.

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

The appellant appealed from a motion judge's dismissal of his action seeking a declaration of adverse possession over part of the respondents' property.

The appellant contended that the motion judge failed to consider evidence of his predecessor in title's mistaken understanding regarding the boundary location.

The Court of Appeal found no error in the motion judge's conclusion that the predecessors had no intention to use the land to the exclusion of its true owner, based on the totality of evidence including the R-Plan filed in support of conversion to the Land Titles Act regime.

The court also rejected the appellant's assertion regarding an old fence creating a boundary, finding it unsupported by evidence.

The appellant appealed from an order dismissing his solicitor negligence action for delay.

The action was commenced in August 2009 and related to the dismissal of a motor vehicle accident action arising from two accidents that occurred in 2001.

The motion judge found inordinate and inexcusable delay, including that the appellant took more than five years to answer undertakings.

The Court of Appeal found no merit in the appeal, concluding that actual prejudice resulted from the delay, making a trial within a trial impossible.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a decision by the motion judge upholding a default payment of $60,000 in a settlement agreement, arguing it was unconscionable.

The Court of Appeal found no error in the motion judge's thorough analysis and conclusion that the default payment was reasonable in the circumstances.

The appeal was dismissed with costs awarded to the respondent.

The Crown appealed an acquittal of sexual assault charges.

The accused was charged with sexually assaulting his sister-in-law on two occasions without her consent.

The trial judge acquitted the accused, finding his testimony that the sexual activity was consensual to be credible.

The trial judge negatively assessed the complainant's credibility based on her post-assault behaviour, which included continued association with the accused and failure to flee or call for help.

The Court of Appeal found that the trial judge erred in law by relying on stereotypical views about how sexual assault victims should behave.

The court determined that this legal error was material to the verdict because the trial judge's belief in the accused's credibility was inextricably linked to her flawed assessment of the complainant's credibility.

The appeal was allowed and a new trial was ordered.

The appellants appealed the dismissal of a third party claim arising from a tug-of-war injury.

The plaintiff was severely injured during a recreational tug-of-war at a campground when his arm became caught in a loop in the rope, resulting in amputation of his forearm.

The appellants sought contribution and indemnity from the third parties who participated in the game.

The motion judge dismissed the third party claim, finding that the third parties owed no duty of care to the plaintiff.

The Court of Appeal upheld the dismissal, holding that the third parties did not fall within any of the circumstances that would impose a positive duty to act, and that the injury was not a reasonably foreseeable result of participation in a recreational tug-of-war game.

The appellant appealed the Ontario Review Board's disposition ordering her detention on the secure forensic unit at Providence Care Hospital, Kingston.

The appellant, who suffers from schizoaffective disorder with persecutory delusions, sought an absolute discharge, or alternatively a conditional discharge or transfer to CAMH.

The Court of Appeal dismissed the appeal, finding the Board's determination that the appellant remained a significant threat to public safety was reasonable, and that a conditional discharge was premature given the ongoing nature of her delusions and the need for medication optimization.

The appellant appealed his sentence for three counts of dangerous driving causing bodily harm.

The Crown and defence had jointly submitted a non-custodial sentence with probation and community service, but the sentencing judge rejected the joint submission and imposed an intermittent sentence of 75 days' imprisonment, three years' probation, 240 hours of community service, a five-year driving prohibition, and a DNA order.

The appellant argued the sentencing judge erred in rejecting the joint submission and that the sentencing process was unfair.

The Court of Appeal dismissed the appeal, finding no error in principle in the rejection of the joint submission and no procedural unfairness.

The appellant was convicted of sexual assault against a friend of his and his long-time girlfriend.

The case rested largely on the complainant's recognition of the appellant as a man she saw standing in a doorway for several seconds immediately after waking up in a dark room, and on the appellant's equivocal responses when confronted by his girlfriend about the allegations.

The Court of Appeal found that the trial judge erred in law by instructing the jury that recognition evidence of a known person is different from identification evidence of a stranger, when in fact recognition evidence is subject to the same frailties and risks.

The trial judge also erred by failing to instruct the jury on the dangers of relying on reaction evidence, particularly where the accused was confronted with vague allegations and given no details of the specific conduct alleged.

The conviction was set aside and a new trial ordered.

The appellant sought judicial review by way of certiorari to quash an order of a justice of the peace in a speeding ticket prosecution.

The justice of the peace had adjourned the trial and reserved the appellant's right to argue a stay motion based on Crown non-disclosure at the resumed trial date.

The application judge dismissed the application, finding the order was interlocutory and that there was no denial of natural justice.

The Court of Appeal upheld this decision, holding that the justice of the peace's trial management ruling was within jurisdiction and did not preclude the appellant from pursuing his stay motion.

The appellants appealed a Superior Court judgment upholding a mortgage enforcement action.

The appellants admitted the mortgage debt but argued that their financial difficulties preventing payment were caused by improper actions of their former lawyer regarding the placement of the mortgage.

The Court of Appeal found no evidence linking the lawyer dispute to the respondent mortgagees' conduct and noted that the dispute concerned only approximately $40,000 of the mortgage proceeds used to discharge writs.

The appellants offered no reasonable explanation for how resolving the lawyer claim would enable payment of the approximately $830,000 owing under the mortgage.

The court found no equitable basis to prevent mortgage enforcement and dismissed the appeal.

Appeal from conviction on two counts of rape and two counts of incest against the appellant's two sisters.

The appellant was convicted at trial and sentenced as a youth to two years in custody.

The appeal raised four grounds: (1) the trial judge erred in limiting a section 276 application regarding cross-examination on allegations against other alleged assailants; (2) the trial judge misapprehended evidence on memory transference; (3) the trial judge improperly relied on similar fact evidence; and (4) the verdict was unreasonable.

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

The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching following a judge-alone trial.

The complainant was the appellant's stepdaughter, and the alleged abuse occurred over a ten-year period.

The appellant's primary defence was that he was never alone with the complainant and therefore had no opportunity to commit the offences.

The trial judge rejected this defence after the complainant's mother admitted the appellant had been alone with the complainant on occasion.

The appellant also argued the complainant had a motive to fabricate the allegations based on conflicts over chores and living arrangements.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the evidence or credibility findings.

The appellant obtained a default judgment in South Carolina in August 2014 against the respondent, a resident of Ontario.

The appellant commenced an enforcement action in Ontario in December 2017, more than three years later, claiming it did not know the respondent had assets in Ontario until October 2017.

The motion judge set aside the Mareva injunction granted ex parte, finding the enforcement action was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld this decision, holding that the two-year limitation period began to run 30 days after the foreign judgment was entered, when the time to appeal expired.

The court rejected arguments that appeals by co-defendants postponed the limitation period and that the appellant lacked knowledge of the respondent's Ontario assets.

The appellant was convicted of dangerous driving causing bodily harm after his motorcycle collided with a southbound SUV at an intersection in Toronto, resulting in serious injuries to a pedestrian.

The trial judge sentenced him to 12 months in custody followed by two years' probation, with a five-year prohibition on driving motorcycles.

The appellant appealed both conviction and sentence, arguing the verdict was unreasonable and that expert evidence was inadmissible.

The Crown cross-appealed the sentence, contending the driving prohibition could not be limited to motorcycles and that the driving lessons requirement was improper.

The appellate court dismissed the conviction appeal, dismissed the appellant's sentence appeal with modifications, and allowed the Crown's sentence appeal.