Bradley W. Miller

An appeal from a Divisional Court decision upholding a Tribunal award of damages to a farm equipment dealer against a manufacturer/distributor for improper non-renewal of a dealership agreement.

The core issue concerned the retrospective application of Ontario Regulation 123/06 (Dealership Agreements Regulation) to an existing dealership agreement and the proper interpretation of the mandatory renewal provisions.

The manufacturer provided notice of non-renewal under the original agreement terms, but the Tribunal found this non-compliant with the Regulation's mandatory process requiring disclosure of all reasons for non-renewal and an opportunity for the dealer to respond.

The Court of Appeal upheld the Tribunal's liability findings and damages award, dismissed the manufacturer's appeal, and allowed the dealer's cross-appeal on costs by restoring the Tribunal's costs award that had been quashed by the Divisional Court.

An employee who began working for a predecessor company in 1995 with an arrangement to work from home three days per week was informed in January 2017 that she could no longer work from home effective March 1, 2017.

The employee took the position that she had been constructively dismissed.

The motion judge found constructive dismissal based on two grounds: the breach of an essential term regarding work-from-home arrangements and the arbitrary setting of the employee's fourth quarter 2016 bonus.

The motion judge awarded 20.5 months of salary (less a 10% contingency), compensation for the underpaid bonus, and lost benefits.

The employer appealed; the employee cross-appealed regarding bonus entitlements during the notice period.

An appeal of an Ontario Review Board disposition maintaining a detention order for an individual found not criminally responsible on account of mental disorder.

The appellant sought an absolute discharge but the Board continued the detention order at the Southwest Centre for Forensic Mental Health Care, finding the appellant presented a significant threat to public safety due to lack of insight into his condition, poor medication compliance without supervision, and substance abuse issues.

The Court of Appeal dismissed the appeal, finding the Board's decision was supported by evidence and represented the least onerous and least restrictive disposition appropriate in the circumstances.

A homeowner appealed a lower court decision that upheld a greenhouse operator's use of storing and grinding wood on-site as an accessory use under the local zoning bylaw.

The homeowner sought a declaration that the wood storage and grinding operations violated the zoning bylaw.

The Court of Appeal upheld the lower court's decision, finding that storing and grinding wood for heating greenhouses constitutes a natural and normal incident of operating a greenhouse and therefore qualifies as an accessory use under the bylaw definition.

The court rejected the homeowner's argument that a restrictive interpretation of "naturally and normally incidental" was required.

The appellant appealed a sentence of 18 months incarceration (less pre-sentence credit) imposed for multiple offences including making false documents, possessing identity documents, using forged documents, possession of property obtained by crime, and trafficking in identity information.

Duty counsel argued the sentencing judge erred by failing to consider serious immigration consequences, specifically that the appellant faced deportation to the United Kingdom as a permanent resident.

The court dismissed the appeal, finding the sentence was fit given the appellant's extensive criminal record of 24 convictions for dishonesty and multiple failures to comply with community supervision orders.

The court rejected the argument that a conditional sentence should be imposed to preserve immigration appeal rights, holding that sentencing flexibility should not be misused to avoid collateral statutory consequences.

The appellants appealed the dismissal of their claim for a mandatory order requiring the respondents to relocate the venting of a furnace and hot water heater from the side to the top of the respondents' house.

The appellants had claimed that emissions from the side venting were obnoxious, caused fumes and vapours that made one appellant ill, caused ice buildup on their walkway, and posed potential future danger to their siding.

The trial judge found that the appellants' complaints did not constitute a substantial interference with their enjoyment of property under the law of nuisance, as the expert evidence was insufficient, health claims were unsupported by medical evidence, ice buildup was insignificant, and future damage claims were speculative.

The appellants did not appeal the dismissal of their damages claim but only the dismissal of the mandatory order claim.

The Court of Appeal found no merit in the appeal.

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 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 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 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 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 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 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 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 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.

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.

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.

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.