Bradley W. Miller

This is an appeal from a sexual assault conviction.

The appellant challenged the verdict, arguing the trial judge misapprehended DNA evidence, leading to an unreasonable verdict.

The complainant had no memory due to extreme intoxication.

DNA tests revealed the appellant could not be excluded as the source of DNA found on the complainant's breast, external genitalia, and vagina.

While the trial judge accepted non-sexual transfer for some DNA, she rejected the submission that there was a rational basis to explain the DNA found inside the complainant’s vagina other than direct contact.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's conclusion regarding the DNA evidence and affirming the reasonableness of the verdict.

A sentence appeal was also dismissed as abandoned.

The appellant, A.S., appealed a dangerous offender designation and indeterminate sentence imposed for multiple sexual and child pornography offences involving her minor children.

The appeal raised two arguments: that the sentencing judge failed to consider the appellant’s future treatability at the designation stage (a "Boutilier error") and erred by not considering a less restrictive sentencing option.

The Court of Appeal dismissed the appeal, finding that the sentencing judge had properly applied the principles from R. v. Boutilier, deeply engaged with the psychiatric evidence regarding treatability and intractability, and correctly concluded that a lesser sentence would not adequately protect the public given the appellant's lifelong risk and the unlikelihood of rehabilitation within a determinate period.

The appellant, Kevin Nguyen, appealed his convictions for various firearm-related offences.

The appeal challenged the trial judge's Charter ruling regarding an unlawful arrest, an illegal apartment freeze, and the validity of a subsequent search warrant.

The application judge had excluded drugs found on the appellant but admitted a handgun and cash found in his apartment.

The appellant argued errors in the s. 24(2) Charter analysis (failure to consider overall police conduct and D.C. Worth's lack of good faith), and errors in the Garofoli ruling (permitting amplification of the Information to Obtain a search warrant and failing to exercise residual discretion to set aside the warrant).

The Court of Appeal dismissed the appeal, upholding the application judge's decisions on all grounds.

The appellant, R.Y., appealed his convictions and sentence for sexually assaulting his 10-year-old niece.

The appeal challenged the trial judge's jury instructions regarding the complainant's evidence, specifically whether her appreciation for detective shows and "Story Time" tainted her testimony, and whether the consistency in defence witnesses' evidence was due to inadvertent tainting or collusion.

The Court of Appeal found no error in the jury charge, concluding it properly equipped the jury to assess credibility and reliability.

The appellant also sought leave to appeal a six-year sentence, arguing it did not respect the "step" principle.

The court found no error in principle, noting the seriousness of the assaults, the breach of trust, and the appellant's prior conviction for child pornography.

Both the conviction appeal and the sentence appeal were dismissed.

The appellants (Donkers parties) appealed the damages and costs awards made in a counterclaim by the respondents (Priest parties).

The original litigation stemmed from the Donkers parties' seizure of assets from the Priest parties' waste removal business without notice, leading to the Priest parties' business failure.

The trial judge had quantified damages for the Priest parties' counterclaim for breach of contract.

The Donkers parties argued the trial judge erred by not reducing the award for an excavator lease and by not applying consistent asset valuations.

They also raised new arguments regarding mitigation and expert fees.

The Court of Appeal found no merit in any of the appellants' submissions, dismissing the appeal and awarding costs to the respondents.

The appellant, convicted of theft over $5,000 and sentenced to six months imprisonment followed by two years probation, appealed both her conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge properly grappled with the evidence and that the grounds of appeal constituted an attempt to reargue the trial.

The court also denied a fresh evidence application regarding alleged gaps in the trial transcript, concluding that the appellant failed to establish irreparable prejudice or that material evidence was missing.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit and the trial judge's discretion in declining a conditional sentence for a breach of trust involving theft from an employer was upheld.

Stahle Construction Inc. appealed a judgment ordering it to pay damages to Roberto Soave for improperly terminating his long-term disability benefits.

The trial judge found Soave was still employed and entitled to benefits.

On appeal, Stahle challenged the trial judge's refusal to admit an insurance policy, the weight given to an insurer's denial letter, and the interpretation of the Mercon Booklet regarding benefit eligibility.

The Court of Appeal upheld the trial judge's decisions on evidence admission and weight but found palpable and overriding errors in the interpretation of the Mercon Booklet's eligibility requirements for long-term disability benefits.

The court clarified that eligibility depended on disability at the time work ceased or becoming totally disabled during a leave if required by law, not merely continuation of coverage.

The appeal was allowed in part, and the matter remitted to the Superior Court for reconsideration of Soave's eligibility based on the correct interpretation.

This is an appeal from a trial judgment concerning a breach of an employment contract.

The appellants, Verge Insurance Brokers Ltd. and Mark Sherk, challenged the trial judge's findings on liability and damages.

The core dispute revolved around the interpretation of a contractual provision allowing the respondent, Ryan Lindsay, to purchase his book of business upon resignation.

The Court of Appeal upheld the trial judge's conclusion that Verge breached the contract by failing to provide accurate account information and sufficient time for Lindsay to close the transaction.

The court affirmed the trial judge's damages award, applying a standard of substantial deference to contractual interpretation and factual findings on loss of profits.

The appellant, convicted of sexual offences, appealed on the ground of ineffective assistance of counsel, arguing he was deprived of his right to re-elect a judge-alone trial.

Counsel missed a statutory deadline for re-election, and the Crown subsequently withdrew consent.

The Court of Appeal found counsel's performance fell below the professional standard by missing the deadline and providing erroneous advice regarding options to rectify the situation.

This resulted in a miscarriage of justice, as the appellant genuinely desired a judge-alone trial and felt he had no choice but to proceed with a jury.

The appeal was allowed, the conviction set aside, and a new trial ordered before a judge alone.

The appellant appealed a lower court decision that struck her claim, which alleged defamation, constructive discrimination, and harassment, without leave to amend.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the claim failed to provide adequate notice, clearly identify causes of action, or set out material facts.

The Court also deferred to the motion judge's refusal to grant leave to amend and the costs award.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed the dismissal of his action against a former co-worker, alleging conspiracy and defamation related to affidavits sworn in a prior employment proceeding.

The appellant had initially moved for default judgment, which the motion judge dismissed for lack of proof, though without explicitly dismissing the action.

The appellant then brought a "supplementary default judgment motion" prompting the respondent to cross-move for clarification.

The motion judge clarified her original intent was to dismiss the action.

The Court of Appeal found no reversible error in the motion judge's decision, deeming the appellant's supplementary motion an abuse of process, and dismissed the appeal.

This is an appeal concerning an insurer's duty to defend.

The appellant, found not criminally responsible for an assault due to a psychotic episode, sought coverage under his homeowner's policy.

The insurer denied coverage based on an exclusion for bodily harm arising from intentional or criminal acts.

The application judge found the negligence claim derivative of an intentional tort and that the exclusion applied.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion that the true nature of the claim was an intentional act, despite the appellant's mental state, thus affirming the applicability of the exclusion clause.

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

This appeal and cross-appeal concerned a claim of infringement of riparian rights due to the construction of a boat house.

The trial judge found an infringement but held the action was time-barred.

The Court of Appeal dismissed both the appeal and cross-appeal.

While disagreeing with the trial judge's reasoning on the discoverability rule's application to s. 4 of the Real Property Limitations Act, the Court affirmed that the limitation period had expired.

It clarified that discoverability applies to s. 4, but the limitation period began when the boat house was constructed in 1969, as the infringement would have been obvious to the predecessors in title, and an extinguished cause of action cannot be revived by a transfer of property.

The appellant, Jamie Dunlop, appealed his conviction for aggravated assault and the indeterminate sentence imposed after being declared a dangerous offender.

The Court of Appeal for Ontario dismissed both the conviction and sentence appeals.

The conviction appeal argued the trial judge erred in assessing witness credibility regarding the extent of the appellant's participation in the assault.

The sentence appeal contended the sentencing judge erred by not acknowledging an accomplice's role and by focusing on general future harm rather than specific serious personal injury offences.

The Court found the trial judge's findings on the appellant's role were supported by evidence and that the sentencing judge correctly applied the dangerous offender test, despite not explicitly mentioning the accomplice.

The appellant appealed his convictions and sought leave to appeal his sentence for four offences related to an attempted convenience store robbery.

The Court of Appeal dismissed the conviction appeal but granted leave to appeal the sentence.

The sentence was adjusted to mitigate unforeseen collateral immigration consequences for the appellant, a permanent resident, by re-allocating pre-sentence credit and treating restrictive bail conditions as a mitigating factor rather than a direct reduction in sentence, ensuring the effective sentence per count did not exceed 179 days.

The appellant pleaded guilty to impaired driving, drug trafficking, and firearms offences, and was sentenced to 10 years' imprisonment just before the COVID-19 pandemic lockdown.

On appeal, he sought a sentence reduction based on the totality principle and the harsh conditions of incarceration caused by the pandemic.

The Crown and the appellant agreed to an 18-month sentence reduction.

The Court of Appeal accepted the joint proposal, finding that the pandemic resulted in significantly harsher conditions than anticipated at sentencing, and reduced the sentence by 18 months.

The appellant appealed a conviction for invitation to sexual touching involving a young child, arguing that the trial judge made improper credibility findings, shifted the burden of proof, and rendered an unreasonable verdict.

The Crown's case relied largely on a video-recorded statement given by the complainant as a child, which was admitted under s. 715.1 of the Criminal Code and adopted at trial.

The Court of Appeal held that the trial judge properly assessed the evidence, including discrepancies and defence testimony, and repeatedly reminded himself of the Crown’s burden of proof.

Although some factual inconsistencies were not expressly resolved, the trial judge considered them within the reasonable doubt analysis.

The appellate court concluded that the verdict was reasonably supported by the evidence and disclosed no reversible error.

This trial addressed various family law issues following the separation of the parties, including divorce, child support, spousal support, equalization of net family property, and post-separation adjustments.

The court declined to impute income to either party based on intentional underemployment, finding their employment choices child-focused, but imputed income to the Applicant due to an accommodation benefit.

The Applicant was found to owe significant child support arrears.

The Respondent's claim for extraordinary expenses was denied due to lack of prior consultation.

The Respondent's claim for spousal support was denied.

Equalization and post-separation adjustments resulted in a net payment from the Respondent to the Applicant, but the overall financial balance, including child support arrears, resulted in the Applicant owing the Respondent a substantial sum.

This is a costs endorsement following an appeal where the appellant, Everest Finance Corporation, successfully varied the judgment below to increase awarded amounts.

The appellant sought full indemnity costs of $15,187.15 based on a mortgage term.

The respondents did not file submissions.

The Court of Appeal granted the full indemnity costs, affirming that contractual provisions for costs actually expended are generally enforced absent misconduct or unfairness.