Bradley W. Miller

The Court of Appeal for Ontario considered three appeals arising from two convictions and an order for a new trial in impaired driving cases.

The central issue was whether, under the amended Criminal Code, the Crown must adduce direct evidence from an analyst or the analyst’s certificate to prove the alcohol standard used to calibrate an Approved Instrument, or whether the certificate or testimony of a qualified technician is sufficient.

The court followed the Yukon Court of Appeal’s decision in R. v. MacDonald, holding that the qualified technician’s certificate is evidence of the facts alleged in it, including that the alcohol standard was certified by an analyst.

The appeals were dismissed.

The Court of Appeal for Ontario dismissed Lynne Catherine Foulidis’s motion for a panel review and to set aside the Deputy Registrar’s order dismissing her appeal for delay.

The court found that the motion judge correctly concluded the appeal lacked merit and that the criteria for an extension of time to perfect the appeal were not met.

The court reviewed the trial judge’s findings regarding the retainer agreement and legal fees, and found no palpable and overriding error.

Costs were awarded to the respondent.

The appellant, J.A., appealed a decision of the Superior Court of Justice upholding a finding by the Consent and Capacity Board that he was incapable of consenting to treatment with antipsychotic medication.

The Court of Appeal found no reversible error in the lower court’s decision, upholding the dismissal of the appellant’s adjournment request and the application of the relevant legal principles regarding capacity and consent.

The appeal was dismissed.

The appellant challenged federal statutory residency requirements that caused the loss of his appointment as a returning officer after he moved outside the electoral district he administered.

The majority held that an individual's choice of residence falls within the irreducible sphere of personal autonomy protected by s. 7 of the Charter, rejected an administration-of-justice threshold, and found that the continuing vacancy rule in s. 24(4) of the Canada Elections Act was overbroad.

Because the provision automatically terminated otherwise qualified officials even where actual residence was unnecessary to achieve the objective of local knowledge and physical presence, the deprivation of liberty was contrary to the principles of fundamental justice.

The respondent failed to justify the breach under s. 1, and the majority declared s. 24(4) of no force or effect.

A dissent would have dismissed the appeal on the basis that s. 7 does not apply outside the administration of justice.

The Court of Appeal for Ontario dismissed Kenneth Reed's appeal from a summary judgment in favour of the Bank of Nova Scotia regarding two lines of credit for his farming operation.

The court found that summary judgment was appropriate, the Consumer Protection Act did not apply as Reed was not a consumer, and a stay under the Farm Debt Mediation Act did not apply to the appeal itself but did stay enforcement of the judgment pending mediation.

Costs of $7,500 were awarded to the Bank.

The Court of Appeal for Ontario dismissed the appeal of Kyrle Blake Farmer, who had served as estate trustee and attorney for property for his aunt, Billie Frances Farmer.

The respondents, his brothers, challenged his distributions and expenses.

The application judge found that Billie lacked capacity to provide instructions, that the appellant’s compensation and expenses were not justified, and that he failed to keep proper accounts.

The appellant was ordered to repay significant sums to the estate.

The Court of Appeal found no error in the application judge’s findings or orders and dismissed the appeal with costs.

The Court of Appeal for Ontario dismissed the appeal concerning the interpretation of a will provision granting an option to purchase a townhouse.

The court upheld the application judge’s finding that the option was properly exercised within the required time and that the will’s terms were sufficiently certain.

The court also rejected arguments regarding the necessity of a separate agreement of purchase and sale and the relevance of the parties’ subsequent conduct.

Costs were awarded as agreed.

The Court of Appeal for Ontario dismissed the appeal in this commercial landlord-tenant dispute.

The trial judge found that the tenant, 2682543 Ontario Inc., repudiated the lease for restaurant premises and that the landlord, 720443 Ontario Inc., properly accepted the repudiation and terminated the lease.

The tenant and its guarantor, Shahab Rashid Savojbolaghi, were held liable for damages.

The Court rejected the tenant’s arguments regarding joint occupancy and the timing of possession, upholding the trial judge’s interpretation of the lease and the finding of repudiation.

The Ontario Court of Appeal dismissed the appeal of Robert Paul Ireland from a judgment declaring his Facebook posts defamatory of the Ontario Federation of All Terrain Vehicle Clubs, ordering their removal, and enjoining further defamatory posts.

The court found no procedural unfairness or error in the application judge’s decision, holding that Mr. Ireland’s failure to file a notice of appearance precluded him from participating in the application, and that the Federation’s courtesy in providing him with information did not create further obligations.

The court also rejected arguments regarding service and limitations, and found no reviewable error in the application judge’s findings on defamation and available defences.

The Court of Appeal for Ontario dismissed the appeal of Vahid Mehdizadeh Asiyaban and 2468692 Ontario Ltd. against Halime Khatoun Aghdasi.

The trial judge had found that the appellant falsified evidence and solicited false testimony in support of a property claim in family litigation.

The Court held that the trial judge was entitled to reject the appellant’s uncorroborated evidence and found no basis to interfere with the credibility findings.

The appeal was dismissed in its entirety, and the appellant was ordered to pay costs to the respondent.

The appellant, S.D.C., appealed his convictions for sexual assault and sexual interference against his daughter.

He argued that the trial judge unevenly scrutinized the evidence and failed to properly apply the principles from R. v. W.(D.).

The Court of Appeal found no error in the trial judge’s approach, holding that her reasons were careful, comprehensive, and entitled to deference.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed the appeal of Steve Konarski from a judgment holding him liable for conversion and detinue after he took and stripped a vintage Corvette belonging to the Kew estate.

The court upheld the trial judge’s decision to award damages on a restoration basis, rather than market value at the date of conversion, due to the unique and sentimental value of the vehicle.

The court also upheld aggravated damages for the estate’s emotional harm and rejected arguments that the damages were disproportionate or contrary to public policy.

The appellant, K.R., was convicted of obstructing justice in relation to her niece, J.D.R., after attempting to cover up sexual assaults committed by her co-accused, D.V. The trial judge allowed the Crown to amend the information to conform to the evidence, and convicted K.R. on the amended charge.

On appeal, K.R. argued that the amendment caused irreparable prejudice and that the trial judge erred in assessing the complainants’ credibility.

The Court of Appeal dismissed the appeal, finding no error in the amendment or the credibility assessment.

The appellant, Seyed Amir Yaghoubi-Araghi, appealed his convictions and sentence for firearm and drug offences following a R.I.D.E. stop, police pursuit, and search that uncovered a handgun and methamphetamine.

He argued that the trial judge erred in failing to exclude the evidence due to breaches of his rights under section 10(b) of the Charter.

The Court of Appeal found that while the trial judge properly recognized the seriousness of the Charter breaches, the evidence was lawfully obtained and the balancing of factors under R. v. Grant did not warrant exclusion.

The conviction and sentence appeals were dismissed.

The appellant, Clayton Williams, appealed his conviction and indeterminate sentence for offences arising from two break and enters, one involving the sexual assault of a 13-year-old girl.

The Court of Appeal rejected arguments that the verdict was unreasonable, that the search warrant was invalid, and that a determinate sentence with long-term supervision was more appropriate.

The court found the trial judge’s factual findings and risk assessment reasonable and dismissed the appeal.

The Court of Appeal for Ontario dismissed Doug Lloyd’s appeal from the Superior Court’s refusal to extend time for judicial review of the Crown’s decision to stay his private prosecution against Bell Canada.

The court held that prosecutorial discretion is only reviewable for abuse of process, which requires egregious conduct.

The application judge made no error in law or fact, and the Crown’s decision not to consider expert evidence or to stay the prosecution on public interest grounds did not amount to an abuse of process.

The appellant, A.N., appealed convictions for three counts of sexual interference and three counts of sexual assault, arguing that his right to be tried within a reasonable time under section 11(b) of the Charter was infringed.

The appeal focused on whether a 60-day period of delay, attributed by the trial judge to COVID-19 as an exceptional circumstance, was properly deducted from the total delay.

The Court of Appeal upheld the trial judge’s reliance on local knowledge and internal court statistics to find the delay was justified, and dismissed the appeal.

This appeal concerns a commercial dispute between The North West Company LP (NWC) and Classic Furs Company Ltd. (CF) over the supply of coyote furs for use in Canada Goose parkas.

The trial judge found a contract existed and that NWC breached it in several respects, but also found in NWC’s favour on unpaid invoices.

Both parties appealed aspects of the damages assessment and liability findings.

The Court of Appeal allowed CF’s appeal in part, finding that the trial judge erred in concluding that certain furs were delivered, and recalculated damages accordingly, including an award of punitive damages against NWC.

The Court of Appeal for Ontario dismissed the appeal of Pierre Dartiguenave from a disposition of the Ontario Review Board.

The Crown requested dismissal on the basis that Mr. Dartiguenave was no longer under the jurisdiction of the Board, and the appellant could not be located.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed J.S.'s conviction and sentence appeals for child luring and sexual interference.

The court found no error in the trial judge’s assessment of the complainant’s evidence or in the allocation of the burden of proof regarding the possibility of a third-party hacker.

The court also rejected arguments that the trial judge failed to consider the appellant’s personal circumstances or recent appellate guidance on family considerations in sentencing.

The sentence, including the lack of Downes credit for bail conditions, was upheld.