Bradley W. Miller

The appellant appealed an order striking his statement of defence due to non-compliance with discovery obligations.

The Court of Appeal found that the motion judge was not fully informed by respondent's counsel regarding the appellant's attempt to retain new counsel and seek an adjournment.

The court held that striking a pleading is a last resort and that the motion judge should have considered the merits and granted a less severe remedy.

The appeal was allowed, the order set aside, and the statement of defence restored.

The appellant appealed his conviction, arguing that his guilty pleas were uninformed, and his dangerous offender designation, asserting that the sentencing judge failed to consider his treatment prospects at the designation stage.

The Court of Appeal dismissed both appeals.

The Court found that the appellant's guilty pleas were informed, as the facts underlying the Superior Court charges were part of the agreed statement of facts in the Ontario Court of Justice and the Crown had explicitly stated these matters would inform the dangerous offender application.

The Court also rejected the argument that using Superior Court facts in the dangerous offender proceeding constituted double punishment under s. 725 of the Criminal Code, clarifying that a dangerous offender hearing is not a "further proceeding" for that purpose.

Regarding the sentence appeal, the Court held that the sentencing judge's reasons, read as a whole, were consistent with the principles of considering treatability at the designation stage, as articulated in R. v. Boutilier.

Furthermore, the Court concluded that even if there was an error, the curative proviso would apply given the overwhelming evidence of the appellant's untreatability and high risk of recidivism.

The appellant, K.B., appealed convictions for historical sexual offences against the complainant, EO.

K.B. argued that the trial judge misapprehended evidence and provided insufficient reasons by failing to adequately address contradictions between EO's testimony and that of a defence witness, LB, particularly concerning opportunities for the offences.

The Court of Appeal dismissed the appeal, finding that the trial judge properly considered all evidence, including contradictions, and provided sufficient reasons for her decision, noting the trial judge's finding that LB's testimony was tailored to assist her father.

The appellant, G.S., appealed his convictions for sexual assault, sexual interference, and sexual exploitation, and his sentence.

The appeal challenged the trial judge's decision to allow the Crown to re-examine the complainant on prior consistent statements and the sufficiency of jury instructions regarding these statements.

The appellant also argued the five-and-a-half-year custodial sentence was unfit and that the trial judge failed to consider the principle of restraint.

The Court of Appeal dismissed the conviction appeal, finding no error in the admission or instruction on prior consistent statements, as the defence had implicitly alleged recent fabrication.

The Court granted leave to appeal sentence but only varied the lifetime Sex Offender Information Registration Act (SOIRA) order to 20 years, upholding the custodial sentence.

Michael LeBlanc appealed his second-degree murder conviction, arguing the trial judge erred by not giving alternative jury directions on the partial defence of provocation and a rolled-up manslaughter charge.

The Court of Appeal dismissed the appeal, finding no air of reality for either defence.

For provocation, the court determined the "sudden" element was not met as the appellant was prepared for the threat.

For manslaughter, the brutal nature of the attack indicated an intent to cause death or grievous bodily harm, leaving no realistic scope for a lesser verdict.

The appellant, Thomas Lush, pleaded guilty to several property-related offences and appealed his sentence.

The Court of Appeal found that the sentencing judge erred by imposing a sentence of 2 years and 3 months, which was higher than the 2 years less a day agreed upon by the Crown and defence, without advising the parties or inviting submissions on the proposed increase.

Citing R. v. Nahanee, the court determined this procedural error affected the sentence.

The conviction appeal was dismissed as abandoned, and the sentence appeal was allowed, reducing the global sentence to 2 years less one day.

The applicant, Gurpreet Singh, charged with dangerous driving causing death and bodily harm, sought a stay of proceedings under s. 24(1) of the Charter due to a violation of his s. 11(b) right to trial within a reasonable time.

The total delay was 52 months, exceeding the 30-month Jordan ceiling for Superior Courts.

The Crown conceded presumptive unreasonableness but argued for exceptional circumstances related to the COVID-19 pandemic.

The court found the total defence delay to be 273 days, resulting in a net delay of 43 months.

Even if the Crown's claimed exceptional circumstances (COVID-19 administrative adjournments and ripple effect) were accepted, the remaining delay would still be 35 months, exceeding the threshold.

The court granted the stay of proceedings, finding a violation of the applicant's Charter right.

The appellant was convicted of second-degree murder and aggravated assault.

The central issue on appeal concerned the proper use of an accused's mixed statement (containing both inculpatory and exculpatory elements) when introduced by the Crown, and when the accused subsequently testifies consistently with the exculpatory part.

The trial judge erred by instructing the jury that the exculpatory aspect of the out-of-court statements could not be used for their truth.

The Court of Appeal clarified that such mixed statements, when led by the Crown, are admissible for the truth of their contents, regardless of whether the accused later testifies consistently.

However, the jury must be cautioned against impermissible lines of reasoning, such as inferring truth from mere repetition or using the prior statement as independent corroboration.

The appeal was allowed, and a new trial was ordered due to the trial judge's erroneous instruction and the resulting confusion and prejudice to the accused.

The appellants, a newspaper publisher and his company, appealed the dismissal of their defamation and other tort claims against city councillors, school trustees, and media entities under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act).

The appellants had published articles critical of the Toronto Catholic District School Board's LGBTQ2S+ policies, using derogatory language.

The respondents, in turn, took action to have the City of Toronto cease advertising in the appellants' newspaper, alleging the articles promoted homophobia and transphobia.

The motion judge dismissed the action, finding the respondents' expressions related to a matter of public interest and that the appellants failed to show their claims had substantial merit or that the respondents had no valid defence (specifically, fair comment).

The Court of Appeal upheld the dismissal, agreeing that the fair comment defence was viable, and that the appellants' constitutional arguments regarding freedom of expression and religious protection were without merit.

The appeal on costs was also dismissed.

This appeal concerned the distribution of proceeds from a property sale, specifically regarding the priority of a third mortgage, an alleged equitable fourth mortgage, and a writ of execution.

The appellants, lenders, sought recognition of an equitable fourth mortgage and a specific interest calculation for their third mortgage.

The respondents, execution creditors, challenged the third mortgage's interest rate.

The Court of Appeal allowed the appeal, declaring the existence of an equitable fourth mortgage, but dismissed the appellants' claim for interest to run until full payout.

The respondents' cross-appeal regarding the third mortgage interest rate was dismissed.

The appellant appealed his designation as a dangerous offender and the resulting indeterminate sentence of imprisonment.

He argued that the sentencing judge provided insufficient reasons, failed to properly consider treatability at the designation stage, and improperly placed an evidentiary burden on him to prove a reasonable expectation of eventual control in the community.

He also argued that the trial amicus curiae failed to ensure a fair hearing by conceding that he met the dangerous offender criteria.

The Court of Appeal dismissed the appeal, finding that the appellant patently met the statutory thresholds for the designation based on a pattern of violent sexual assaults.

The court held that the sentencing judge did not impose an improper burden of proof and that the trial amicus curiae's performance did not cause actual prejudice or create an appearance of unfairness amounting to a miscarriage of justice.

The appellant, OZ Optics Ltd., appealed the dismissal of its action against two former general counsel, Diane Lesley Evans and Samuel Edgar Schwisberg, following a successful motion for summary judgment.

The action alleged breach of contract, breach of fiduciary duty, conspiracy, and negligent performance of service.

The Court of Appeal dismissed the appeal from the bench, upholding the motion judge's findings that the claims were amenable to summary judgment, that Evans's actions did not constitute a breach or cause loss, and that Schwisberg's obligations under a holdover clause were absolved by the appellant's actions.

Costs were awarded to the respondents.

The respondent was acquitted of child luring, with the trial judge finding him reckless as to the complainants' ages but concluding recklessness was insufficient mens rea based on a misinterpretation of R. v. Morrison.

The Court of Appeal clarified that recklessness as to age is sufficient mens rea for child luring under s. 172.1(1)(a) of the Criminal Code where the Crown proves an actual child complainant, distinguishing this from police sting operations.

However, as the trial judge did not make findings on the respondent's subjective intent to facilitate a secondary offence, the appeal was allowed, acquittals set aside, and a new trial ordered.

The appellants brought a motion to traverse their appeal to the Divisional Court.

The respondent consented to the transfer early on a without-costs basis, but the appellants unreasonably refused and sought costs against the respondent's counsel personally without basis.

The court granted the transfer on consent and awarded the respondent substantial indemnity costs of the motion due to the appellants' unreasonable conduct.

This appeal was dismissed as abandoned due to the appellants' failure to appear.

The respondent was awarded costs on a partial indemnity basis.

The appellant, Jatinder Singh Dhillon, appealed a final order in family litigation, raising four grounds: a resulting trust claim, quantification of net family property, private school costs under s.7 of the Federal Child Support Guidelines, and "netting down" a lump sum retroactive spousal support award.

The Court of Appeal dismissed all grounds, finding no legal or palpable and overriding factual error.

The court emphasized that judges are not required to make tax adjustments for retroactive spousal support awards unless specifically requested and that such adjustments are discretionary, especially where non-disclosure of income could lead to a windfall.

The applicant, convicted of 33 counts of voyeurism and sentenced to two years incarceration, sought bail pending appeal.

The Crown opposed on grounds of public safety and public confidence in the administration of justice under s. 679(3)(c) of the Criminal Code.

The court considered the applicant's history of pre-meditated voyeurism and indecent acts, as well as recent allegations of impersonating a police officer while on bail.

The motion judge found a substantial likelihood of the applicant committing further offences and that his detention was necessary for public safety.

Furthermore, releasing the applicant would undermine public confidence given the serious and escalating nature of his conduct, despite the relatively short sentence and the possibility of an expedited appeal.

The application for interim release was dismissed.

Following the dismissal of an appeal, the Court of Appeal for Ontario considered the appellant's claim for costs on a substantial indemnity scale.

The court found no exceptional circumstances to justify substantial indemnity costs and instead fixed the appellant's costs on a partial indemnity scale in the inclusive sum of $15,000.

The appellant, Leonid Pekker, appealed a Superior Court judgment that recognized and enforced a Russian court's judgment against him for an unpaid loan.

The Russian judgment was obtained ex parte after Pekker failed to appear, despite being duly notified.

Pekker's subsequent appeal in Russia, challenging notice, was dismissed, and he did not pursue further appeals.

The Ontario Court of Appeal upheld the application judge's decision, finding no error in recognizing the foreign judgment.

The Court affirmed that the Russian proceedings met minimum standards of fairness, as Pekker had adequate notice and opportunity to defend and appeal.

The Court also upheld the exclusion of an unsworn expert report on Russian law.

The appellant sought an extension of time to seek leave to appeal a Divisional Court decision that dismissed her appeal of a Law Society Tribunal decision.

The appellant also sought to set aside the Divisional Court's decision based on an apprehension of bias, arguing that the lack of hearing transcripts hindered her ability to prove bias.

The Court of Appeal applied the four-factor test for extensions of time, finding that while the appellant intended to appeal and there was no prejudice to the respondent, the delay was significant and the bias allegations lacked particulars and cogent evidence.

The court concluded that the proposed appeal lacked merit and dismissed the motion for an extension of time with costs.