Bradley W. Miller

Criminal appeal from convictions for fentanyl trafficking, possession of property obtained by crime, and firearms offences arising from a street arrest after police surveillance.

The appellant argued that police breached the duty to hold off questioning at arrest and during a later station interview, and that the resulting evidence should have been excluded under ss. 10(b) and 24(2) of the Charter.

The Court of Appeal held that the arrest-scene questioning issue was not a live issue at trial, no additional s. 10(b) breach occurred before the interview, and the trial judge’s Grant analysis attracted deference.

The appeal was dismissed.

The appellant appealed a sexual assault conviction arising from historical allegations involving a complainant who was under 14 during the charge period.

He argued that the trial judge failed to resolve material inconsistencies between the complainant and another Crown witness, improperly treated inconsistent evidence as confirmatory, misstated the application of the W.(D.) rule to exculpatory Crown evidence, and failed to explain the impact of frailties in one allegation on the complainant's overall reliability.

The court held that the alleged inconsistencies were either not borne out by the record or concerned immaterial details, and that the shared details between independent witnesses could properly reinforce the accepted account.

Although the trial judge described the W.(D.) rule too narrowly, the reasons showed that exculpatory Crown evidence was in fact used to generate doubt on one incident.

The conviction appeal was dismissed.

The appellant challenged a second degree murder conviction arising from a targeted fatal stabbing proved primarily by circumstantial identification evidence, including surveillance video, shoe DNA evidence, clothing evidence, vehicle evidence, and recognition evidence from a recanting witness.

The Court of Appeal held that the trial judge did misapprehend the defence position by stating that all parties agreed the appellant was not the driver of the van, but found the misapprehension immaterial because the conviction rested on affirmative circumstantial evidence identifying the appellant as the stabber.

The court rejected arguments based on Villaroman, insufficient reasons, and unreasonable verdict doctrine, holding that the proposed innocent inferences were speculative and that the reasons, read functionally in context, clearly rejected the blood-transference theory.

The court also upheld the limited reliance placed on the recanting witness's recognition evidence after proper Vetrovec and Hudson analysis.

The appellant challenged convictions for possession of controlled substances for the purpose of trafficking arising from drugs found during an inventory search of a vehicle he was occupying.

Applying the circumstantial-evidence framework for constructive possession, the court held the trial judge erred by treating guilt as a reasonable inference rather than the only reasonable inference available on the whole of the evidence.

The evidence was equally consistent with sole possession by the co-occupant, particularly because the drugs were concealed in a backpack linked by DNA to that person and there was no evidence of the appellant handling the backpack or participating in trafficking activity.

The convictions were therefore unreasonable and were set aside, with an acquittal entered.

The appellant appealed a sexual assault conviction, arguing that the refusal of a trial adjournment to retain new counsel forced self-representation and that the appointment of former counsel as amicus and s. 486.3 counsel created a conflict and an appearance of unfairness.

Applying the high threshold for miscarriage of justice based on trial unfairness, the court held that the right to counsel of choice is not absolute and that the case management judge properly balanced fair trial interests against the timely administration of justice.

The court found no prejudice, no disclosure of confidential information, and no appearance of unfairness arising from the former counsel’s appointment.

The conviction was also supported by strong corroborative evidence, including security footage, DNA evidence, a distinctive tattoo, and a matching backpack.

The appellant appealed the dismissal of her action under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process.

The action arose from COVID-19 border requirements, including PCR testing and the ArriveCan application, and sought $366,000,000 in damages for alleged Charter and international law violations.

The Court of Appeal found no error in the motion judge's conclusion that the pleading was incoherent and failed to disclose a viable cause of action.

The court also rejected the appellant's arguments that constitutional claims are immune from Rule 2.1.01, that leave to amend was required, and that section 17 of the Crown Liability and Proceedings Act, 2019 is unconstitutional.

The appeal was dismissed with no costs awarded.

The appellant appealed a trial judgment declaring the respondent the sole beneficial owner of a residential property and ordering its transfer, along with general and punitive damages.

The trial judge found the appellant held the property in trust for the respondent, her niece, who paid the deposit and carrying costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's interpretation of the trust documents or her rejection of the appellant's illegality defence.

The punitive damages award was upheld as the appellant's high-handed conduct, including failing to pay property taxes and maintain insurance, merited sanction.

The appellant appealed the dismissal of his summary judgment motion, which sought to dismiss the respondent's personal injury action as statute-barred under the Limitations Act, 2002.

The respondent was injured in a motor vehicle accident in November 2015 but did not commence her action until November 2021.

The motion judge found the claim was timely because the respondent only discovered her injuries met the 'permanent serious impairment' threshold under the Insurance Act in July 2020, following a meeting with a neuropsychologist.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider whether the respondent reasonably ought to have known her injuries met the threshold earlier.

Given the persistence of her debilitating symptoms and earlier medical advice that she might never fully recover, the Court held the claim was discoverable more than two years before it was commenced.

The action was dismissed.

The appellant, a foreign trustee based in Liechtenstein, appealed the dismissal of its motions to stay or dismiss two actions for lack of jurisdiction simpliciter or forum non conveniens.

The actions alleged that the principals of Bridging Finance Inc. misappropriated funds and transferred them to a trust managed by the appellant.

The Court of Appeal upheld the motion judge's finding that Ontario had jurisdiction simpliciter because the tort of fraud was committed in Ontario and contracts connected to the dispute were made in Ontario.

The appellant failed to rebut these presumptive connecting factors, and the appeal was dismissed.

The appellant, a former lawyer, sued the respondent banks for freezing his accounts after he was charged with money laundering and fraud.

The motion judge granted summary judgment dismissing the action and awarded $225,000 in substantial indemnity costs against the appellant.

On appeal, the Court of Appeal upheld the summary judgment, finding no genuine issue for trial despite the respondents' delay in bringing the motion.

However, the Court granted leave to appeal the costs award, reducing it to $175,000 on the basis that the unaccepted settlement offer should not have elevated costs incurred prior to the offer being made.

A lawyer employed on a contingency fee commission basis resigned to join a competing firm.

The employer law firm terminated him immediately and sought a declaration that he was not entitled to compensation for unbilled work in progress (WIP) or files settled but not yet collected.

The motion judge found the lawyer was entitled to compensation for both.

On appeal, the Court of Appeal held that while the lawyer was entitled to his share of fees for files settled prior to his departure, the employment contract did not provide for compensation for WIP on files that remained at the firm and were settled after his departure.

The Court also upheld the finding that the lawyer did not breach his duty of good faith by merely planning his departure.

The appellant was convicted of drug trafficking offences following the execution of search warrants.

He applied to reopen his trial based on fresh evidence from a related proceeding where a judge found a police officer had deliberately misled the issuing justice.

The trial judge dismissed the application, finding the misconduct was not relevant to the appellant's defence and the evidence could have been adduced with due diligence.

The Court of Appeal dismissed the appeal, holding that the trial judge's decision not to reopen was a reasonable exercise of judicial discretion and the Palmer criteria for fresh evidence were not met.

The appellants, a real estate brokerage and its realtor, appealed a summary judgment dismissing their claim for a $650,000 commission from the respondent purchaser after a commercial real estate transaction failed to close.

The motion judge found that the Buyer Representation Agreement, which listed the commission as 'TBD', did not contractually bind the purchaser to pay the commission amount set out in a separate agreement between the brokerage and the seller.

The Court of Appeal dismissed the appeal, holding that the motion judge made no reviewable error in his contractual interpretation and that his conclusion was open to him based on the highly fact-specific circumstances.

The appellants appealed an order that foreclosed their ability to defend the action, arguing the motion judge failed to provide reasons.

The Court of Appeal agreed that reasons were warranted for such a serious decision, but found the reasons were discernible from the record.

The appeal was dismissed for the reasons previously given by the court in refusing a stay pending appeal.

The appellant appealed his convictions for two counts of aggravated assault arising from a shootout outside a nightclub that injured the initial shooter and five bystanders.

The appellant argued the trial judge erred by refusing a mistrial over the Crown's opening address, declining to direct acquittals on the assault charges, and refusing to leave self-defence with the jury.

The Court of Appeal dismissed the appeal, finding the trial judge's corrective instruction was sufficient, there was circumstantial evidence to support secondary party liability, and self-defence lacked an air of reality given the indiscriminate nature of the return fire.

The Attorney General of Ontario appealed a Superior Court decision striking down provisions of the Security from Trespass and Protecting Food Safety Act, 2020 and its Regulation.

The application judge had found that provisions invalidating consent to enter a farm obtained under false pretences violated the freedom of expression of animal rights activists seeking to conduct undercover exposés.

The Court of Appeal allowed the appeal, holding that the activists' claim was a positive rights claim seeking access to private property on their own terms.

The Court found that the legislation did not substantially interfere with freedom of expression and that any limits were justified under section 1 of the Charter.

The appellant appealed his convictions for historical sexual assault and sexual interference against a child complainant.

He argued the trial judge erred by characterizing the complainant's mother's evidence as 'corroborative' when it only confirmed peripheral details.

The Court of Appeal dismissed the appeal, finding that the trial judge did not use the term in its technical legal sense, but rather as confirmative of the complainant's general reliability, which was a permissible use of the evidence.

The appellants appealed a summary judgment order granting the respondent a shortfall of $58,067.48 following the sale of a property under power of sale.

The appellants argued the motion judge erred in determining the sale price by 'rectifying' a Land Transfer Tax statement contrary to the Land Titles Act and reversing the burden of proof.

The Court of Appeal dismissed the appeal, finding the motion judge did not rectify the document but simply weighed the evidence to determine the actual consideration received, and that s. 78(4) of the Land Titles Act did not apply.

The moving party brought a motion to quash the responding parties' appeal of an order enforcing a settlement agreement in a construction lien dispute.

The Court of Appeal held that it lacked jurisdiction to hear the appeal, as section 71(1) of the Construction Act directs such appeals to the Divisional Court.

The Court declined to traverse the appeal to the Divisional Court because the responding parties had failed to oppose the confirmation of the associate judge's report, meaning they must first seek leave in the Superior Court to extend the time to file a motion in opposition.

The motion to quash was granted.

The plaintiff suffered a severe wrist injury after falling on unsecured wooden steps at the defendant's property.

The defendant's pleadings were struck, resulting in a default judgment on liability.

The court found the defendant 100% liable under the Occupiers' Liability Act for failing to ensure the premises were reasonably safe.

The plaintiff was awarded $280,000 in damages, plus an OHIP subrogation claim and substantial indemnity costs, due to the permanent and debilitating nature of her injury.