Bradley W. Miller

The appellant appealed his convictions for sexual assault, assault causing bodily harm, and uttering threats, alleging ineffective assistance of counsel at trial.

The complainant testified that she would not have consented to sexual intercourse three weeks after giving birth.

However, a sexual assault questionnaire completed at the hospital on the day of the alleged assault indicated that the complainant had reported consensual intercourse two days prior to the assault.

Trial counsel failed to notice this answer in the questionnaire and did not bring a section 276 application to cross-examine the complainant on this prior sexual activity.

The Court of Appeal found that trial counsel's failure to attempt a section 276 application constituted ineffective representation that undermined the reliability of the verdict and resulted in a miscarriage of justice.

The appellant was convicted of theft over $5,000, break and enter, two counts of possession of property for the purpose of trafficking, and one count of possession of property obtained by crime.

He appealed his convictions on grounds that the trial judge failed to properly apply the W.(D.) test, applied stricter scrutiny to the defence case, provided insufficient reasons, and misapprehended evidence.

The appellant also argued that two convictions should be stayed under Kienapple as included offences.

The Court of Appeal dismissed most grounds of appeal but allowed the appeal in part, staying two convictions as included offences.

The appellant appealed his conviction for dangerous operation of a motor vehicle and his sentence of 12 months' imprisonment.

The conviction arose from an incident involving an argument and physical interaction between the appellant and a passenger, during which the appellant's vehicle struck and injured the passenger and collided with a retaining wall.

The appellant was acquitted of aggravated assault and mischief to property.

The Court of Appeal upheld the conviction, finding no inconsistency between the acquittals and the conviction, and upheld the sentence, finding no error in principle warranting intervention.

The appellant was convicted of three counts of possession of controlled substances for the purpose of trafficking (cocaine, MDMA, and marijuana), possession of a prohibited device, and possession of proceeds of crime.

He was sentenced to five years imprisonment, less credit for pre-disposition custody, resulting in a net sentence of 42 months.

On appeal, the appellant challenged: (1) the trial judge's decision to apply section 653.1 of the Criminal Code to bind the parties by a prior ruling refusing leave to cross-examine the ITO affiant; (2) the correctness of that prior ruling; and (3) the trial judge's rejection of the Charter section 8 challenge to the search warrants.

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

An appeal from a Superior Court order striking out a notice of objection to the passing of accounts in the estate of Lidia Iaboni.

The appellant, Carlo Iaboni, objected to the respondents' administration of his parents' estates on grounds of alleged misappropriation of funds.

The motions judge struck the notice of objection on three bases: lack of merit, abuse of process (attempting to relitigate a dismissed action), and being time-barred under the Limitations Act.

The Court of Appeal dismissed the appeal, finding no error by the motions judge and noting that the appellant's factual allegations were not substantiated.

The appellant appealed the trial judge's dismissal of her action seeking to invalidate two wills of her great-aunt on grounds of lack of testamentary capacity, lack of knowledge and approval of contents, and undue influence.

The appellant contended that the trial judge misapprehended the medical evidence regarding testamentary capacity and failed to distinguish between capacity to manage property and testamentary capacity.

The Court of Appeal upheld the trial judge's findings, holding that the appellant failed to establish special circumstances to rebut the presumption of testamentary capacity and that the trial judge's conclusion was fully supported by the evidence.

This is a costs decision on appeal from a Superior Court judgment.

The appellants appealed the decision of Justice Fred Myers dated April 12, 2017.

The Court of Appeal reviewed written submissions on costs and determined that the appellants must pay the respondent's costs in the fixed amount of $30,000 inclusive of disbursements and HST.

An insured brought an action against international insurers for breach of an insurance contract.

The insurers moved to stay the action and refer the dispute to arbitration in London, England pursuant to an arbitration clause in the policy.

The motion judge dismissed the stay motion, finding that the "Action Against Insurer" endorsement provided an alternative method of dispute resolution allowing domestic court proceedings.

The appellate court reversed, holding that the arbitration clause was mandatory and the sole method of dispute resolution, and that the "Action Against Insurer" clause was a service of suit provision that did not conflict with the arbitration clause.

The court also clarified that the Model Law on International Commercial Arbitration applies to agreements providing for arbitration of certain disputes, not only those providing for arbitration as the sole method of dispute resolution.

The appellant brought four related actions against various respondents arising from dealings that occurred primarily in the United States between 2001 and 2016.

The respondents moved to dismiss or stay the actions on the ground that Ontario courts lacked jurisdiction due to the absence of a real and substantial connection to the province.

The motion judges granted the motions and dismissed all actions.

On appeal, the Court of Appeal considered whether Ontario jurisdiction existed based on: (1) consulting contracts allegedly entered into at Toronto airport; (2) products being advertised, marketed, and distributed in Ontario; and (3) respondents carrying on business in Ontario.

The Court of Appeal upheld the dismissals, finding no real and substantial connection to Ontario and affirming that mere advertising or distribution through third-party retailers does not constitute carrying on business in the jurisdiction.

The respondent appealed a Superior Court judgment that granted the applicant's application to enforce her rights under a Governance Agreement concerning the replacement of Board members of Spectrum Health Care.

The appellants argued the application judge erred in interpreting the contract, should have stayed the application pursuant to an arbitration clause in the shareholders' agreement, and erred in alternative findings regarding oppression remedy and interim injunction.

The Court of Appeal upheld the lower court decision, finding no palpable and overriding error in the application judge's interpretation of the Governance Agreement or his analysis of the alternate remedies.

The appellant, a minor injured when a barista poured scalding hot water on her hands at a Starbucks location, appealed the motion judge's decision striking the Statement of Claim against the individual defendants (the barista and store manager).

The motion judge had struck the claim on two grounds: that it did not disclose a reasonable cause of action and that suing the individuals constituted an abuse of process.

The Court of Appeal allowed the appeal, holding that employees can be personally liable for their own negligence while acting within the scope of employment, and that naming individual defendants for discovery purposes does not constitute an abuse of process when a proper cause of action has been pleaded against them.

The appellant husband appealed a trial judgment in a matrimonial property dispute.

The trial judge found that a declaration of trust and a $300,000 second mortgage were sham documents designed to defeat the respondent wife's interest in the matrimonial condominium.

The trial judge awarded the respondent an equalization payment of $100,500 and rejected an unequal division of property.

The Court of Appeal upheld the trial judge's findings, finding no basis to interfere with the credibility assessments or the detailed reasons for finding the documents to be shams.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed a summary judgment decision dismissing their claims against the Toronto Police Services Board.

The appellants argued that criminal proceedings were a nullity because the information was not properly vetted by the Justice of the Peace.

The Court of Appeal found this issue was irrelevant to the summary judgment motion.

The appellants failed to file evidence supporting their claim that police lacked reasonable and probable grounds and did not cross-examine the respondents' extensive material.

The motion judge correctly found the respondents met their onus.

The appeal was dismissed with costs awarded to the respondents.

The appellants sought to review an order of Roberts J.A. refusing to extend the time to file a motion to review and set aside a security for costs order made by Laforme J.A., and to obtain a stay of both that order and the underlying summary judgment.

The appellants had defaulted under two mortgages and obtained summary judgment against them.

The Court of Appeal found no basis to interfere with Roberts J.A.'s decision, which was based on the appeal being wholly without merit and the justice of the case not warranting the orders sought.

The motion to review was dismissed with costs.

The appellant was convicted on an indictment containing ten counts of various offences against three persons, with allegations spanning periods of 8 to 10 years.

On appeal from conviction, the appellant advanced two grounds: first, that the trial judge applied uneven scrutiny to the evidence, subjecting Crown witnesses to a less rigorous standard than defence witnesses; and second, that the trial judge improperly imposed an evidentiary burden on the appellant to explain injuries sustained by one complainant.

The Court of Appeal dismissed both grounds, finding that the trial judge's reasons reflected a cautious, even-handed approach to credibility assessment and that the trial judge's comments regarding the unexplained injuries were merely observations on the state of evidence rather than an improper shift in the burden of proof.

The appellant appealed a disposition issued by the Ontario Review Board that imposed additional restrictions on his community access, reducing his indirectly supervised community access to a maximum of four hours with an approved itinerary and reducing day passes from seven days indirectly supervised to three days directly supervised.

The appellant challenged the disposition on multiple grounds, including that it was not the least onerous and least restrictive disposition, that the Board failed to carry out its inquisitorial mandate, that the Board focused exclusively on public safety, that a treatment impasse existed requiring Board intervention, and that the Board failed to consult the complete risk assessment report.

The Court of Appeal dismissed all grounds of appeal and upheld the Board's disposition.

The appellant appealed convictions for assault, using an imitation firearm in committing an offence, threatening to cause bodily harm, and carrying a concealed weapon arising from an altercation in a secondary school washroom.

The trial judge convicted based on the complainant's evidence, which was contradicted by the appellant and co-accused.

The appellant raised two grounds of appeal: uneven scrutiny in the trial judge's assessment of evidence and misapprehension of evidence based on impermissible speculation.

The Court of Appeal dismissed both grounds, finding that the trial judge applied consistent standards and that the conclusions drawn were reasonable inferences from the evidence as a whole.

The appellant sought an order releasing audio recordings of portions of his trial that were held in camera and subject to a sealing order, as well as any exhibits filed during the in camera proceedings.

The in camera proceedings related to a pre-trial application.

The appellant had appealed his conviction and sentence, and the correctness of the trial judge's decision on the pre-trial application was at issue on the appeal from conviction.

The Court of Appeal found it was in the interests of justice to order production of the audio recordings and exhibits, as counsel required access to these materials to assess the viability of the ground of appeal and to pursue it if viable.

The appellant appealed his conviction for sexual assault entered by a trial judge sitting without a jury.

The trial judge found that the complainant, by virtue of her intoxication, lacked the capacity to consent to the sexual activity in issue.

The appellant argued the conviction was unreasonable and based on misapprehensions of evidence.

The Court of Appeal found ample evidence supported the trial judge's conclusion that the Crown proved the essential elements of the offence beyond a reasonable doubt, particularly regarding the complainant's lack of capacity to consent.

The appeal was dismissed.

The appellant appealed his convictions under sections 7(1) and 5(2) of the Controlled Drugs and Substances Act for operating a marijuana grow-operation in his rental apartment unit.

The appellant challenged the convictions on grounds of misapprehension of evidence and unreasonable verdict.

The trial judge had found that the appellant maintained control of the unit and had knowledge of the grow-operation based on his tenancy, exclusive access, rent payment, and personal documents found in the unit.

The Court of Appeal upheld the convictions, finding all findings of fact were open to the trial judge and that no other rational conclusion was available on the evidence.