Bradley W. Miller

The appellants appealed from a Superior Court order that set aside a Master's decision permitting amendment of the Statement of Claim to substitute the Regional Municipality of York and Brennan Paving and Construction Ltd. for the originally named defendants based on misnomer.

The original claim arose from an accident allegedly caused by a pothole on McCowan Road.

The Court of Appeal dismissed the appeal, finding that the Master's inference that the substituted defendants would have known they were the intended defendants was not available on any reasonable view of the evidence.

The Notice of Claim and Statement of Claim, even when read together, were not capable of supporting such an inference without further inquiry.

The appellant appealed his conviction for assault relating to events on December 25, 2014.

The appellant had been acquitted of a separate assault charge relating to events in summer 2013.

The appellant and complainant were co-parenting their child and maintained a non-intimate relationship at the time of the alleged assault.

The appellant raised two grounds of appeal: first, that the trial judge materially misapprehended evidence regarding who invited the complainant to stay overnight, and second, that the trial judge improperly relied on a police officer's opinion regarding the complainant's expectations about police involvement.

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

The appellant appealed his conviction for theft and fraud, and his sentence of three years' custody with a restitution order of $125,000.

The appellant had managed his elderly mother's finances and depleted her retirement savings from approximately $557,000 to $83.43 over two and a half years.

The trial judge found the appellant had stolen at least $200,000.

On appeal, the appellant challenged the admission of two videotaped statements made by his mother to police and raised a Charter delay argument for the first time.

The Court of Appeal upheld the conviction and sentence, finding no error in the trial judge's admissibility ruling and declining to entertain the Charter argument raised for the first time on appeal.

The Ontario Media Development Corporation (OMDC) denied Pong Marketing and Promotions Inc.'s application for a digital media tax credit on the grounds that its sweepstakes games were developed primarily to promote the sale of phone cards rather than to educate, inform, or entertain users.

The Divisional Court majority found the OMDC's decision unreasonable, holding that "primary purpose" must be assessed from the user's perspective rather than the developer's motivation.

The Court of Appeal allowed the OMDC's appeal, finding that the OMDC's interpretation was reasonable and that the Divisional Court erred in applying a residual presumption in favour of the taxpayer.

The appellant appealed a disposition of the Ontario Review Board that found him to remain a significant threat to public safety and ordered a conditional discharge with reporting and drug testing requirements.

The appellant, found not criminally responsible on account of mental disorder for assault with a weapon in 2007, sought an absolute discharge.

The Court of Appeal upheld the Board's disposition, finding that the Board's conclusion that the appellant would likely discontinue antipsychotic medication, increase cannabis use, and decompensate into psychosis was supported by evidence, including the appellant's lack of insight into his need for medication and his history of drug use.

The appellant appealed a disposition of the Ontario Review Board that found him to remain a significant threat to public safety and ordered a conditional discharge with monthly reporting requirements.

The appellant sought an absolute discharge.

The Court of Appeal upheld the Board's decision, finding that the Board's conclusion was reasonable based on evidence that the appellant intended to discontinue medication if absolutely discharged, had persistent persecutory delusions, and had a history of cannabis use that exacerbated his mental condition.

The court found it reasonable for the Board to conclude that absolute discharge would likely result in medication cessation, decompensation, and increased risk of threatening behaviour.

The appellant was convicted by jury of intentionally discharging a firearm while reckless as to the life or safety of another person and occupying a motor vehicle while knowing there was a firearm in the vehicle.

The Crown's theory was that the appellant counselled an unknown SUV driver to shoot at the victim as retaliation for damage to the appellant's mother's vehicle.

The appeal raised the issue of whether the convictions were unreasonable based on circumstantial evidence.

The Court of Appeal was divided: one judge would have allowed the appeal and entered acquittals, finding insufficient evidence to support the convictions; the majority dismissed the appeal and affirmed the convictions, finding the jury verdicts reasonable on the totality of the evidence.

The appellant appealed a certiorari decision that refused to quash an Ontario Court of Justice decision denying the return of marijuana seized from the appellant after charges of possession and possession for the purpose of trafficking were withdrawn.

The Court of Appeal upheld the lower court's decision, finding that the appellant failed to establish he was lawfully entitled to possession of the cannabis and did not have a licence authorizing possession at the time of seizure.

The certiorari judge did not err in concluding that no error or excess of jurisdiction occurred.

The appellant appealed a sentence of concurrent 12-month sentences followed by three years probation imposed for two counts of breaching court orders forbidding contact with the complainant.

The appellant argued the sentencing judge erred in principle by misapprehending evidence regarding threats.

The Court of Appeal found no misapprehension of evidence and upheld the sentence, noting the appellant's history of five previous breach convictions, his failure to be deterred by earlier sentences, and the devastating impact on the victim.

The appellant sought to appeal the dismissal of his summary judgment motion regarding fraudulent conveyances.

The motion judge had dismissed the motion on the basis that the underlying debt was discharged in bankruptcy and the appellant had failed to follow the correct procedure under the Bankruptcy and Insolvency Act.

The Court of Appeal quashed the appeal, finding that the motion judge's order was interlocutory because it did not determine the substantive rights of the parties.

Therefore, the appeal properly lies to the Divisional Court with leave.

The appellant appealed convictions for possession of marijuana, cocaine and MDMA for purposes of trafficking, and possession of a prohibited weapon, challenging the lawfulness of his arrest on the basis that police lacked reasonable and probable grounds.

The Court of Appeal upheld the convictions, finding that police had received a detailed tip from a confidential informant that was corroborated through vehicle registration searches, and that subsequent surveillance observations of suspicious interactions consistent with drug trafficking provided reasonable and probable grounds for arrest.

The search incident to arrest was therefore lawful.

The appellants commenced a motor vehicle accident action in December 2010 following a collision in December 2008.

The action was administratively dismissed as abandoned in August 2011 pursuant to rule 48.15 of the Rules of Civil Procedure.

The appellants moved to set aside the dismissal in February 2014, more than two years after the dismissal order.

A master granted the motion to set aside, but the Superior Court judge allowed the respondents' appeal and reinstated the dismissal.

The appellants appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, finding that the master erred in considering the repeal of rule 48.15 as part of the contextual analysis, erred in assigning fault to the respondents for not filing a defence, erred in finding that the appellants always intended to prosecute the action without evidence to support this finding, and critically erred in failing to consider the finality principle in assessing prejudice to the respondents.

Two appellants were convicted following a jury trial for their roles in an armed robbery of a drug dealer's residence in Barrhaven.

During the robbery, one of the perpetrators shot and killed the resident.

The first appellant was convicted of first degree murder; the second appellant was convicted of second degree murder.

On appeal, the first appellant's conviction was upheld.

However, the second appellant's conviction was set aside and a new trial ordered due to errors in the trial judge's jury instructions regarding the mens rea requirement for party liability to murder under section 21(2) of the Criminal Code.

This is a costs endorsement following the Court of Appeal's decision allowing an appeal by the Estate of Gabriel Zimmerman regarding its entitlement to be added as a party to the underlying action.

The court determined the costs payable by the respondents to both the Estate and the defendants for the motion heard in the lower court.

The Estate was awarded its actual partial indemnity costs, and the defendants were also awarded costs on a partial indemnity basis despite not participating in the appeal, as they benefited from the appellate decision.

The appellants sought leave to appeal their first-degree murder convictions and sought to introduce fresh evidence in the form of a recantation by key Crown witness Ronnie Khananisho.

The Court of Appeal dismissed the motion to admit the fresh evidence and confirmed the prior panel's dismissal of the appellants' appeals from conviction.

The court found that while the recantation was admissible and the due diligence requirement was satisfied, the evidence failed the cogency test.

The recantation suffered from serious credibility issues, including implausible origins involving contact with the incarcerated appellant's former girlfriend, and could not reasonably be expected to have affected the trial verdict given that the central witnesses were Jorge Restrepo and Jorge Acosta, whose testimony was corroborated by powerful independent evidence including cellphone records and medical evidence.

The accused was charged with importing cocaine after arriving at Pearson Airport with eight suitcases containing over 40 kilograms of cocaine concealed in the lining.

The accused testified that her cousin provided the luggage and she was unaware of the drugs, having inspected the bags when she became suspicious but finding nothing.

The court applied the W. (D.) framework and the doctrine of wilful blindness, concluding that the accused took reasonable steps to allay her suspicions and the Crown failed to prove wilful blindness beyond a reasonable doubt.

The accused was acquitted.

The appellant appealed his conviction for sexual interference and attempt to obstruct justice, as well as the lifetime Sex Offender Information Registration Act (SOIRA) order imposed as an ancillary order on sentence.

The appellant abandoned his conviction appeal but challenged the lifetime SOIRA order, arguing it should be 20 years.

Both the appellant and respondent agreed on this issue.

The court found that although there is no right of appeal from a SOIRA order imposed under s. 490.012(1) of the Criminal Code, the trial judge retains inherent jurisdiction to correct an erroneous SOIRA order.

The appeal was quashed for want of jurisdiction, but the appellant was directed to return the matter to the trial judge for correction.

The appellant, a hotel owner, sought recovery for fire damage to its building caused by a fire in the respondents' leased restaurant space.

The appellant's insurer brought a subrogated action in the appellant's name.

The respondents argued that the lease terms barred the insurer from pursuing the claim.

The motion judge dismissed the action, finding that the landlord's covenant to insure and the tenant's contribution to insurance costs triggered the principles established in the Supreme Court trilogy, preventing subrogation against the tenant.

The Court of Appeal reversed, holding that the lease contained explicit "notwithstanding" language that overcame the trilogy principles and preserved the tenant's liability for its own negligence.

The appellant was convicted of impaired driving causing death and dangerous driving causing death after a head-on collision on Highway 17 that killed the other driver.

On appeal, the appellant challenged the admission of expert opinion evidence from a police accident reconstruction officer, arguing the evidence was tainted by bias and that the Crown failed to disclose draft reports.

The Court of Appeal upheld the conviction, finding that while there were concerns about the expert's independence, the trial judge properly circumscribed the scope of admissible evidence and that any disclosure violation did not impair the appellant's right to make full answer and defence.

Appeals arising from the implementation of the Indian Residential Schools Settlement Agreement (IRSSA).

The appellants sought declarations that Canada breached its disclosure obligations under the IRSSA by refusing to produce transcripts of examinations for discovery from civil actions (Cochrane Transcripts) and sought broad relief for all former students affected by alleged breaches.

The administrative judge dismissed the requests for directions.

The Court of Appeal upheld the dismissal, finding that Canada did not breach its disclosure obligations by refusing to produce the Cochrane Transcripts, that the deemed undertaking rule applied to protect the privacy of examinees, and that the court lacked jurisdiction to grant the broad relief sought.