Bradley W. Miller

The appellant obstetrician appealed a jury's finding of negligence and causation in a birth injury case, arguing the jury misapplied the "but for" test and that the verdict was unreasonable due to lack of evidence on timely delivery.

The appellant also claimed the trial judge improperly questioned witnesses.

The Court of Appeal dismissed the appeal, affirming the jury's application of the "but for" test, finding the verdict reasonable based on expert evidence, and concluding the trial judge's questions were proper clarifications within established judicial protocol.

The appellant, David Joseph Lesko, appealed three aspects of a divorce order: an equalization payment to the respondent, Kelly Sue Lesko, based on her 50% interest in a pre-marriage property due to unjust enrichment; the determination of his income for support purposes; and the disallowance of his claim for credit against retroactive support for post-separation expenses.

The Court of Appeal dismissed the appeal on all grounds, upholding the trial judge's findings regarding unjust enrichment, income calculation, and the discretion to deny the appellant's late-claimed expenses.

The Court of Appeal for Ontario issued a costs endorsement following its decision to allow an appeal, set aside a dismissal order, and restore the action.

The appellants sought costs for both the appeal and the original motion.

The respondents argued against any costs award, particularly for the original motion, citing s. 137.1(8) of the Courts of Justice Act.

The Court found no basis to deny costs for the appeal, as the appellants were entirely successful, but reduced the quantum sought.

For the original motion, the Court clarified its previous finding regarding public interest, noting the motion judge erred, and applied the principle from Veneruzzo v. Storey that costs should be awarded to a successful respondent on a s. 137.1 motion if the lawsuit was not a SLAPP and the expression was unrelated to public interest.

The Court awarded the appellants their costs for both the appeal and the original motion.

The appellants appealed a partial summary judgment dismissing their action against Enbridge Inc. and Enbridge Solutions Inc. The Court of Appeal found that the motion judge erred by allowing the summary judgment motion to proceed on the eve of a scheduled ten-week trial, causing unnecessary delay and expense.

Furthermore, the Court held that the motion judge erred in concluding there was no genuine issue requiring a trial regarding Enbridge Inc.'s direct duty of care to the appellants, particularly concerning its public statements and policies on supervising its subsidiaries and contractors.

The appeal was allowed, the summary judgment and costs order were set aside, and the action was restored for trial.

The appellants, Celine and Richard Pizale, sought to appeal orders approving the sale of their partially-renovated property by a receiver and an administration order.

They argued they had an automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) or, alternatively, should be granted leave to appeal under s. 193(e).

The Court of Appeal dismissed their panel review motion, affirming the chambers judge's decision that no automatic right of appeal existed as the sale approval order did not result in a loss beyond that already worked by the unappealed appointment order.

The court also found no basis to grant leave to appeal, concluding that the appeal did not raise an issue of general importance or prima facie merit, and would hinder the receivership process.

The offender, a traditional Chinese medicine practitioner, was found guilty of a historical sexual assault against a patient during an examination in 1992.

The Crown sought 60 days incarceration, while the defence sought an absolute discharge.

The court emphasized the breach of trust and the need for denunciation and general deterrence, rejecting a discharge.

Considering the offender's lack of prior record, positive community contributions, and the impact of the COVID-19 pandemic, the court imposed a 60-day conditional sentence followed by three years' probation, along with mandatory DNA, weapons prohibition, and SOIRA orders.

The appellants, Derek Oppong and Akido Thomas, appealed their convictions and sentences for kidnapping-related offences with a firearm, committed for the benefit of a criminal organization.

They argued the trial judge erred in admitting expert evidence on gang activity, claiming it was unnecessary and biased, and in refusing to reconsider its admissibility after proposed factual admissions.

The Court of Appeal dismissed both conviction and sentence appeals, affirming the trial judge's discretion in admitting expert evidence for contextual understanding and finding no material change in circumstances that would warrant its exclusion.

The court also upheld Mr. Oppong's sentence, finding evidence supported his leadership role in the offence.

The Crown appealed the acquittal of the respondent on charges of aggravated assault and firearms offences, arguing the trial judge misapprehended surveillance video evidence, failed to assess evidence holistically, and provided insufficient reasons.

The Court of Appeal dismissed the appeal, finding no errors of law in the trial judge's factual findings or assessment of the circumstantial evidence, and that the reasons were sufficient.

The court reiterated that Crown appeals from acquittals are limited to questions of law alone and cannot challenge the reasonableness of the verdict.

The Court of Appeal for Ontario dismissed an appeal and subsequently addressed costs.

The respondents sought costs for the appeal and for pre-appeal motions that did not proceed.

The appellants argued for no costs due to divided success or novelty, or a reduction.

The court found the respondents wholly successful on appeal, rejecting claims of divided success or novelty.

It awarded $15,000 for the appeal costs and a reduced amount of $5,000 for the motions, acknowledging costs were incurred despite the motions not being argued.

The Town of South Bruce Peninsula sought leave to appeal convictions for damaging piping plover habitat under the Endangered Species Act, 2007.

The Town argued the lower courts erred in interpreting 'damage' to habitat and in applying the test for expert evidence admissibility in a regulatory offence.

The Court of Appeal granted leave to appeal on both questions, finding the interpretation of 'damage' to be a serious legal question with broad public interest implications, and guidance on expert evidence in a regulatory setting to be appropriate.

The appellants appealed the dismissal of their defamation action as a Strategic Lawsuit Against Public Participation (SLAPP) under s. 137.1 of the Courts of Justice Act.

The action arose from allegedly defamatory statements made by the respondents in an Ontario Labour Relations Board (OLRB) pleading.

The motion judge found the expression related to a matter of public interest and dismissed the action.

The Court of Appeal allowed the appeal, holding that the motion judge erred by characterizing the expression too broadly and by concluding that the specific impugned statements, which concerned a private dispute between competitors, related to a matter of public interest.

The Court clarified that purely private disputes, even if involving allegations of tortious conduct, do not automatically qualify as matters of public interest for anti-SLAPP purposes.

The mother appealed a trial decision in a high-conflict parenting dispute, which had resulted in an order for joint custody with parallel decision-making authority and equal parenting time.

The trial judge had rejected the mother's allegations against the father and the OCL's recommendation for sole custody to the mother.

The mother alleged errors regarding hearsay evidence, consideration of children's wishes, application of the maximum contact principle, the trial judge's jurisdiction to vary prior orders, and the award of costs.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's factual findings, assessment of evidence, or application of legal principles.

The court affirmed that OCL recommendations are not binding, the maximum contact principle does not mandate equal parenting time, and a trial judge has broad jurisdiction to make final parenting orders, not being bound by interlocutory orders.

The costs award against the mother was upheld due to her unreasonable conduct during the litigation.

The appellant was convicted of firearms offences following a traffic stop and arrest.

The primary issue on appeal was whether the stop and arrest were tainted by racial profiling, which would render the firearm evidence inadmissible under s. 24(2) of the Charter.

The trial judge found Charter breaches (ss. 8 and 9) due to an arrest without reasonable and probable grounds but admitted the evidence, concluding no racial profiling because he found the officers were not "lying" about their motivations.

The Court of Appeal (majority) held that the trial judge erred in applying the test for racial profiling by focusing on whether officers deliberately lied, failing to adequately consider unconscious bias.

A new trial was ordered.

The dissenting judge argued the trial judge correctly applied the law and considered all factors.

The appellant, Taylor Griffith, appealed his conviction for unlawful possession of a loaded semi-automatic handgun and cocaine for trafficking, and sought leave to appeal his sentence.

The main issue was the exclusion of evidence under s. 24(2) of the Charter due to a s. 10(b) right to counsel breach.

The Court of Appeal found that while the police had objectively reasonable grounds for arrest and search incident to arrest, and were justified in delaying counsel access during warrant execution due to officer safety concerns, an unexplained 80-minute delay after warrants were executed did constitute a s. 10(b) breach.

However, applying the Grant test, the court determined that admitting the reliable and crucial evidence would not bring the administration of justice into disrepute, given the unintentional and situation-specific nature of the breach and its moderate impact on the appellant's Charter interests.

The court also found no error in the trial judge's decision not to reduce the sentence based on the s. 10(b) breach, as it did not relate to the circumstances of the offence or offender.

Both the conviction and sentence appeals were dismissed.

This is a costs endorsement following an appeal where the appellants, though not fully successful on the merits, significantly reduced the judgment amount against them.

The court considered the parties' respective cost submissions and awarded the appellants partial indemnity costs of $10,000, inclusive of disbursements and taxes, while denying the respondent's request for costs.

The court did not interfere with the cost award made by the motion judge.

The appellant, Andrew Clifford Miracle, appealed an order appointing a receiver over his assets, which was granted to the respondent, Glenn Bogue, to satisfy a debt arising from an arbitration award.

The arbitration concerned the joint ownership of a store on Tyendinaga Mohawk Territory.

Andrew alleged the application judge erred by lacking authority for a final receiver order, miscalculating contingency fees, and, crucially, that the order contravened sections 29 and 89 of the Indian Act, which prohibit enforcement by a non-status Indian against assets situated on a reserve.

The Court of Appeal identified the Indian Act issue as a threshold matter, noting it was not fully litigated or determined in the lower court.

Consequently, the court remitted the matter to the application judge for a determination on the effect of the Indian Act, adhering to the principle that new issues are generally not decided on appeal.

No costs were awarded.

The appellant purchased a restaurant from the respondent and subsequently sued for fraudulent misrepresentation regarding the restaurant's revenues.

The trial judge dismissed the action, finding no misrepresentation and stating the appellant should have verified the actual sales receipts provided to her.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge erred by ignoring formal admissions regarding the revenue representations and by improperly relying on the appellant's lack of due diligence as a defence to fraudulent misrepresentation.

This appeal was dismissed due to a lack of jurisdiction.

The Court of Appeal determined that the proper jurisdiction for an appeal involving a single payment of less than $50,000 is the Divisional Court.

The appellant appealed a judgment of less than $50,000 to the Court of Appeal for Ontario.

The Court of Appeal quashed the appeal, holding that it was properly brought to the Divisional Court due to the monetary amount.

No costs were awarded.

The appellant appealed a motion judge's finding of a material change in circumstances for a motion to change under the Family Law Rules.

The Court of Appeal dismissed the appeal, agreeing that the issue of material change was properly determined by summary judgment and that the factors (respondent's move, new partner, work schedule change) clearly constituted a material change under the Gordon and Goertz test, relevant to the children's best interests.