David M. Brown

The appellant was convicted of two counts of criminal harassment by threatening conduct based on her legal name change to that of Mark McBride, with whom she had been obsessed for over a decade.

The trial judge found her not criminally responsible on account of mental disorder (NCRMD) due to Delusional Disorder, Erotomanic Type.

The Court of Appeal allowed the appeal, finding the NCRMD verdict was tainted by legal error.

The trial judge had conflated the issues of whether the appellant knew her act was wrong with whether her mental disorder rendered her incapable of knowing it was wrong.

The court substituted convictions and imposed a conditional discharge with one year probation.

An appeal concerning the failure to disclose immediately litigation agreements between a plaintiff (subrogated insurer) and a defendant that converted their adversarial relationship into a cooperative one.

The plaintiff and defendant entered into two agreements (2011 and 2016) whereby the defendant would defend the action and prosecute a third-party claim funded by the plaintiff, and subsequently the plaintiff assigned all its rights in the action to itself.

These agreements were not disclosed immediately but rather piecemeal throughout 2016.

The motion judge found the agreements should have been disclosed but refused to stay the action, finding no prejudice.

The appellate court reversed, holding that failure to immediately disclose agreements that change the litigation landscape constitutes abuse of process requiring a stay of the non-disclosing party's claim as a matter of principle.

The applicant sought leave to appeal under section 131 of the Provincial Offences Act from a judgment of the Ontario Court of Justice that dismissed her appeal from a conviction for operating a rental unit without a valid licence.

The applicant contended that she had entered an uninformed guilty plea at trial, arguing this raised a question of law essential to the public interest.

The Court of Appeal dismissed the application, finding that the applicant's complaint was fact-based rather than a question of law, and that she had failed to meet the very high threshold for granting leave to appeal under section 131 of the POA.

Two consolidated appeals concerning the enforceability of liability waivers executed by ski resort patrons.

The central issue was whether the Consumer Protection Act (CPA) or the Occupiers' Liability Act (OLA) governs the relationship between ski resorts and patrons who purchased ski tickets and executed waivers as a condition of entry.

The lower courts held that the CPA applied and voided the waivers.

The Court of Appeal held that the OLA and CPA conflict, and that the more specific OLA provisions prevail over the general CPA provisions.

The court allowed the appeals and held that the waivers were valid and enforceable.

The appellant was convicted of possession of a controlled substance for the purposes of trafficking and possession of the proceeds of crime following observations by an experienced drug investigator in a parking lot in Vaughan, Ontario.

The investigator observed the appellant and another man transferring cylindrical bins from one vehicle to another, followed by an exchange of cash.

The appellant appealed, challenging the lawfulness of the arrest and subsequent search, arguing that the grounds for arrest disappeared when the pills could not be immediately identified, and that the police breached section 489.1 of the Criminal Code by failing to file a report to a justice as soon as practicable.

The Court of Appeal upheld the conviction, finding that the arrest was based on reasonable grounds, the search incident to arrest was lawful, and the manner in which the police exercised their discretion did not require return of the seized property.

An appeal of an Ontario Review Board disposition order that continued the detention of an NCRMD accused with a term permitting community living in approved accommodation.

The appellant challenged both the Board's finding that she remained a significant threat to public safety and the appropriateness of the detention order as opposed to a conditional discharge.

The Court of Appeal dismissed the appeal but criticized the Board's brevity in addressing key issues, particularly the lack of rigorous analysis regarding the significant threat finding and the failure to explain why detention was necessary and appropriate rather than a conditional discharge.

The court noted that while the Board's decision was not unreasonable on the evidence, it failed to meet standards of transparency and intelligibility in its reasoning.

The respondent slipped and fell on a wet floor in the vestibule of a department store operated by the appellants, fracturing her kneecap.

The trial judge found the appellants liable for negligence under the Occupiers' Liability Act, concluding that the wet floor caused the fall and that the appellants lacked an effective inspection or maintenance system.

The appellants appealed, arguing the trial judge failed to require proof that the wet floor created an unreasonable risk of harm and erred in rejecting expert evidence about the safety of the tile flooring.

The Court of Appeal upheld the trial judgment, finding the trial judge properly applied the statutory duty of care and reasonably rejected the expert evidence.

The applicant sought a review under s. 520 of the Criminal Code of bail conditions imposed by a Superior Court judge.

The applicant was charged with drug trafficking and had been released on strict conditions including house arrest, bi-weekly reporting, prohibition on possessing a cellphone, and prohibition on associating with persons with criminal records.

The applicant sought to vary these conditions to permit employment and to possess one cellphone.

The Court of Appeal dismissed the application, holding that absent special circumstances, superior courts should deal with bail matters prior to and during trial, while courts of appeal should deal with bail pending appeal.

The applicant failed to demonstrate special circumstances warranting appellate intervention.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated June 30, 2017.

The appellant did not contest the Board's finding that he remained a significant threat to public safety or the disposition that he remain detained at the General Forensic Unit at CAMH.

However, he contended the Board acted unreasonably by not including a delegation of authority permitting community living in supervised accommodation when the Hospital deemed it appropriate, as had been included in the previous 2016 disposition.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and entitled to deference, as the evidence clearly showed the appellant was not ready for community living at the time of the hearing.

The appellant sought judicial interim release pending the hearing of her sentence appeal challenging the constitutionality of the mandatory minimum sentence for weapons trafficking under section 99(1)(a) of the Criminal Code.

The motion judge dismissed the application, finding that while the appeal had arguable merit, it did not have sufficient merit to warrant release under section 679(4)(a), and that the appellant had not established that her detention was not necessary in the public interest under section 679(4)(c).

The appellants were convicted by jury of importing 7.86 kilograms of cocaine into Canada from Jamaica and each received sentences of 6.5 years imprisonment.

Potts appealed both conviction and sentence; Robinson appealed sentence only.

The Court of Appeal dismissed all appeals, finding no errors in the trial judge's jury charge on the mental element of importing, limiting instructions on co-accused statements, right to silence, expert evidence, or character evidence.

The sentencing appeals were also dismissed as the sentences were fit and within the appropriate range for this offence.

The appellant sought an extension of time to file a notice of motion for a panel review of a security for costs order made by a single judge of the Court of Appeal.

The motion was filed outside the four-day service window required by the Rules of Civil Procedure.

The motion judge granted the extension of time, considering factors including the appellant's intention to seek review, the engagement of liberty of the subject, the non-frivolous nature of the underlying appeal, and the unpredictability of deference afforded to security for costs orders.

The motion was directed to be heard in writing by a panel rather than orally to prevent further delay.

The moving party sought to set aside an administrative dismissal by the Registrar of a motion for leave to appeal from a Divisional Court decision.

The Divisional Court had dismissed an appeal from a Small Claims Court judgment in favour of the respondent insurance company on a defendant's claim.

The motion judge found that the moving party had failed to provide adequate explanation for not completing leave to appeal materials despite multiple extensions and judicial prompting over nearly four years.

The motion judge dismissed the motion, finding delay, lack of confidence in future compliance, prejudice to the respondent, and weak merits.

The appellant was convicted of sexual assault with a weapon and unlawful confinement following a trial before a judge sitting without a jury.

The trial judge stayed convictions for sexual assault and assault with a weapon, applying the principles in Kienapple v. The Queen.

The appellant appealed on three grounds: misapprehension of evidence, excessive judicial intervention depriving him of a fair trial, and uneven scrutiny of evidence.

The Court of Appeal dismissed the appeal, finding no material misapprehension of evidence, no deprivation of a fair trial despite judicial interventions, and no uneven standard of scrutiny applied to the evidence.

On appeal from a Superior Court decision, the appellant challenged the application judge's interpretation of a management agreement and the restated articles of incorporation concerning Class C shares of an investment fund.

The appellant argued that a payment it made to itself should be characterized as debt rather than an unauthorized performance dividend.

The Court of Appeal upheld the lower court's decision, finding no palpable and overriding error or extricable error in law.

The court affirmed that the payment was an undeclared and unauthorized performance dividend, and that nothing in the fund's articles converted it into debt.

The appellant appealed a summary judgment decision granting judgment on a guarantee in favour of the respondent credit union.

The appellant's defence was that a representative of the credit union had represented to her that she would only be responsible for 25% of the entire loan, despite the documents she signed stating the guarantee was unlimited.

The motion judge rejected the appellant's evidence of misrepresentation and granted summary judgment in accordance with the terms of the guarantee.

The Court of Appeal upheld the decision, finding no error in the motion judge's determination that there was no genuine issue for trial.

Canada Investment Corporation appealed a motion judge's order approving the receiver's recommendation that no further distributions be made to CIC in respect of its first mortgage interest claim.

The appellant argued the motion judge erred by failing to find it was entitled to a distribution for interest due on its mortgage.

The Court of Appeal dismissed the appeal, finding that CIC failed to provide the receiver with a breakdown of its interest calculation and clarification regarding the timing of enforcement, placing the burden on CIC to prove its claim.

The receiver's recommendation was reasonable given CIC's failure to provide requested information for verification.

The appellant was convicted of unauthorized possession and careless storage of a sawed-off shotgun and possession of prohibited devices, including a silencer and high capacity magazines.

On appeal, the appellant challenged his convictions relating to the shotgun and silencer on two grounds: first, that the trial judge reversed the burden of proof by repeatedly referencing his decision not to testify; and second, that the verdict was unreasonable.

The Court of Appeal dismissed both grounds of appeal, finding that the trial judge did not reverse the burden of proof and that the conviction was well-supported by circumstantial evidence.

The appellant also sought leave to appeal his sentence of 14 months custody, arguing for a conditional sentence, which was also dismissed.

The appellants appealed a judgment of the Superior Court finding that their failure to close a real estate purchase transaction was due to their own negligence and that of their lawyers.

The appellants sought to have the Court of Appeal find that the application judge misapprehended or ignored evidence.

The Court of Appeal found no error in the application judge's findings and upheld the decision that the appellants would forfeit their deposit and upgrade fees.

The court considered whether the forfeiture was unconscionable, noting that the respondents had resold the property for $240,000 more than the original purchase price, but found the forfeiture was not unconscionable given the appellants' responsibility for the failure to close.

The appellant sought leave to appeal from a conviction entered by the Ontario Court of Justice.

The Court of Appeal considered whether the case met the criteria for granting leave to appeal under the second category established in R. v. R(R.).

The court found that the appellant had not established sufficient grounds for leave to appeal and refused the application.