Bradley W. Miller

The appellant appealed the dismissal of its motion for summary judgment, which sought to dismiss the respondent's action for false arrest, false imprisonment, and Charter breaches as statute-barred.

The respondent had been detained by the CBSA for 467 days before being deported, but only discovered evidence of alleged CBSA misconduct years later when internal notes were disclosed in separate litigation.

The Court of Appeal upheld the motion judge's finding that the presumptive limitation period starting on the date of arrest was rebutted, as the respondent did not have sufficient material facts to discover his claim until the internal notes were disclosed.

The appeal was dismissed.

The appellants appealed the dismissal of their action on a motion for summary judgment, which was found to be statute-barred under the Limitations Act, 2002.

The motion judge concluded the claim was discovered by August 21, 2015, more than two years before the action was commenced.

The Court of Appeal upheld the motion judge's decision, finding no error in the interpretation or application of the discoverability principle under s. 5 of the Limitations Act, 2002, specifically regarding when a proceeding is an "appropriate means to seek to remedy" a loss.

The court rejected the argument that the appropriateness of litigation includes an assessment of its prospect of success or the ability to marshal evidence.

The accused was charged with multiple offences, including two counts of robbery, possession of a restricted firearm, and breach of recognizance.

The accused conceded guilt on the firearm possession and breach of recognizance charges.

The court dismissed the accused's application for a directed verdict on one robbery count, finding that the act of driving away while the victim held onto the vehicle constituted violence.

The court found the accused guilty of the second robbery based on eyewitness identification and circumstantial evidence, but acquitted the accused of the first robbery due to reasonable doubt regarding his involvement.

The plaintiff tire distributor sued the corporate defendant and its sole proprietor for unpaid invoices totalling $659,908.87, relying on a personal guarantee allegedly signed by the proprietor.

The action against the corporate defendant was stayed due to bankruptcy.

The proprietor admitted the corporate debt but denied knowingly signing a personal guarantee, arguing the document was presented merely as a credit application update.

The court found that while the proprietor did sign the document, the plaintiff had a positive obligation to bring the guarantee clause to his attention due to their special, long-standing business relationship.

Because the plaintiff failed to do so, the guarantee was obtained by misrepresentation and was unenforceable.

The action against the personal defendant was dismissed.

The appellant, Matthew Moreira, sought leave to appeal his sentence for manslaughter and robbery.

The Court of Appeal for Ontario granted leave, finding that the sentencing judge erred in determining the factual basis for the manslaughter conviction and in assessing the appellant's degree of fault, and also materially misapprehended evidence regarding pre-sentence custody conditions (Duncan credit).

The Court set aside the 12-year manslaughter sentence, substituting a 10-year sentence, while upholding the 1-year consecutive sentence for robbery.

The total global sentence was reduced from 13 years to 11 years, resulting in a net sentence of 6 years and 5 months after pre-sentence custody credit.

The Crown appealed the conditional sentence of two years less a day imposed on the respondent, Joern Scholz, for fraud over $5,000.

The Court of Appeal found that the trial judge erred in principle by imposing a sentence outside the established range for major frauds and by failing to follow the proper analytical process for conditional sentences.

The court also found that the trial judge improperly considered the conduct of an OSC investigator as a mitigating factor for the convicted offence.

The appeal was allowed, the conditional sentence was set aside, and a three-year term of imprisonment was imposed.

The appellant, S.S., appealed a Superior Court decision that denied him a preliminary inquiry.

S.S. was charged with sexual assault and sexual interference, offences whose maximum penalties were increased after the alleged commission date but before his election.

The central issue was whether entitlement to a preliminary inquiry under s. 535 of the Criminal Code, which requires an offence punishable by 14 years or more, should be determined by the penalty at the time of the offence or at the time of the election.

The Court of Appeal affirmed that the relevant maximum penalty is that which applied at the time of the offence, benefiting the accused under s. 11(i) of the Charter and s. 43(d) of the Interpretation Act.

The court also rejected the appellant's attempt to waive his Charter right to the lesser punishment to qualify for a preliminary inquiry.

The appeal was dismissed.

The appellant appealed convictions for assault, sexual assault, and uttering threats, and the custodial sentence.

The appeal against conviction argued the trial judge erred in applying R. v. W.(D.) by failing to find a reasonable doubt due to alleged inconsistencies in the complainant's evidence regarding the timing of disclosure to her brother.

The appeal against sentence argued it was excessive and that enhanced credit for COVID-19 conditions was warranted.

The Court of Appeal dismissed both appeals, finding no material inconsistency in the evidence and no error in the trial judge's W.(D.) analysis or the fitness of the sentence.

The appellant appealed his convictions for dangerous driving and failing to stop for police, arguing the trial judge misapprehended evidence regarding his identification as the driver.

The Crown conceded that the trial judge mistakenly attributed evidence to an independent witness who had not actually identified the driver, but argued there was no substantial wrong.

The Summary Conviction Appeal Court found that the remaining identification evidence was not overwhelming and, given the frailties of eye-witness identification, the error was significant.

The appeal was granted and a new trial was ordered.

This is a remand from the Supreme Court of Canada to the Ontario Court of Appeal concerning the award of incentive plan-related damages in a wrongful dismissal action.

The Supreme Court remanded the case for disposition in accordance with Matthews v. Ocean Nutrition Canada Ltd. The majority of the Court of Appeal affirmed its original decision, finding that the employee, Mr. Manastersky, was not entitled to additional damages beyond his vested interest in the Mezzanine Carried Interest Plan (CIP) because the plan's terms did not entitle him to annual payments or future investment periods.

The court held that RBC Dominion Securities Inc. had paid Mr. Manastersky all to which he was entitled at common law.

Feldman J.A. dissented, arguing that the trial judge's original decision, which awarded additional damages, correctly applied the legal principles affirmed in Matthews, emphasizing the requirement for "absolutely clear and unambiguous" language to limit an employee's common law right to compensation.

Zachary Barton was convicted by a jury of firearms-related offences.

Police found a semi-automatic handgun during a warrantless search in a common hallway planter, and later ammunition and a bullet-proof vest during a warranted search of his apartment.

The appellant argued that the trial judge erred in concluding the handgun was not obtained in a manner that infringed his Charter rights.

The Court of Appeal agreed, finding the handgun was unconstitutionally obtained due to its causal, contextual, and temporal links to the unlawful police conduct.

As the trial judge had not fully determined the validity of the search warrant after excising the unconstitutionally obtained evidence, the Court of Appeal set aside the convictions and ordered a new trial on all charges.

The appellant, Joshua Barreira, appealed his 15-year sentence for manslaughter, which had been reduced to a net 4.5 years after pre-sentence custody credit.

He raised four grounds of appeal: the sentence falling outside the appropriate range, the sentencing judge's failure to assume he did not know his accomplice had a gun, insufficient "Duncan credit" for harsh pre-sentence custody conditions, and an omission of pre-sentence credit for time served between sentencing submissions and the imposition of sentence.

The Court of Appeal granted leave to appeal and allowed the appeal in part, accepting the fourth ground as conceded by the Crown.

The court rejected the other grounds, affirming that the sentence was not demonstrably unfit, that mitigating facts must be established on a balance of probabilities, and that the "Duncan credit" was within the sentencing judge's discretion.

The sentence was adjusted to reflect the additional pre-sentence credit.

This is a costs endorsement following an appeal where the respondent Receiver, representing Hillmount Capital Inc., was successful.

The Court of Appeal for Ontario ordered the appellants, Celine and Richard Pizale, to pay the Receiver partial indemnity costs, fixed at $3,000, inclusive of disbursements and applicable taxes.

The appellant was convicted of multiple offences, including sexual and physical abuse against his step-daughter.

On appeal, he argued that the language interpretation services at trial were substandard, infringing his s. 14 Charter rights, and that the trial judge erred in weighing evidence and assessing credibility.

He also challenged a conviction for invitation to sexual touching.

The Court of Appeal granted leave to admit fresh evidence but found no s. 14 Charter breach, concluding that minor interpretation differences did not impede the appellant's ability to understand or be understood.

The court dismissed most grounds of appeal, upholding the trial judge's credibility assessments.

However, the conviction for invitation to sexual touching was quashed and an acquittal entered, as there was no factual basis or evidence of an invitation.

The appellant, J.R., appealed convictions for sexual offences against his two young daughters.

The Crown conceded that the trial judge erred by failing to instruct the jury against cross-count reasoning and propensity reasoning, and by instructing them that cross-count reasoning was permissible.

The Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial, finding these errors required the convictions to be set aside.

The appellant, Shawn Labrosse-Quinn, appealed a six-month sentence for robbery and possession of stolen property, arguing the sentencing judge misconstrued his role and erred in not imposing a conditional or intermittent sentence.

The Court of Appeal for Ontario found the sentencing judge correctly assessed the appellant's moral culpability as a getaway driver who was wilfully blind to the robbery and did not err in declining a conditional or intermittent sentence, emphasizing the need for deterrence and denunciation.

The appeal was dismissed.

The appellant, Robert Gary Anderson, appealed his conviction for criminal harassment and sought leave to appeal his sentence.

The Court of Appeal found no error in the trial judge's conduct regarding the jury charge, an alleged juror falling asleep, or the imposed two-year suspended sentence.

Both the conviction appeal and the sentence appeal were dismissed.

This appeal addressed the Small Claims Court's jurisdiction to appoint a representative defendant for an unincorporated association, specifically a trade union, in a wrongful termination claim.

The appellants argued that the Small Claims Court Rules contained an "omission" regarding such orders, precluding reference to the Rules of Civil Procedure.

The Court of Appeal affirmed the Divisional Court's decision, holding that the Small Claims Court Rules themselves provided the necessary authority for such orders, and that reference to the Rules of Civil Procedure was discretionary but not essential.

The court found no legislative intent to exclude unincorporated associations from the Small Claims Court's jurisdiction, emphasizing the court's role in facilitating access to justice.

The appellant insurer appealed a summary judgment that found an "under construction" exclusion clause in a homeowner's policy did not apply to water damage.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that whether a property is "under construction" is a question of fact and that the renovations in this case were not sufficient to trigger the exclusion.

The court declined to provide a general definition for "under construction" emphasizing that exclusion clauses are construed narrowly and the insurer bears the burden of proof.

This is a costs endorsement from the Court of Appeal for Ontario.

In accordance with an agreement between the parties, the appellants were ordered to pay costs to the respondents, Mandeep Dhatt and Kulwinder Dhatt, fixed at $8,200, and to the third party respondents, Jay Brijpaul and Re/Max West Realty Inc., Brokerage, fixed at $6,700.

Both amounts were inclusive of disbursements and applicable taxes.

The purchase price under the agreement of purchase and sale dated January 22, 2016, was to be reduced by the amount of these costs.