Bradley W. Miller

The appellant purchasers appealed a summary judgment finding them in breach of an agreement of purchase and sale (APS) for refusing to close due to alleged undisclosed easements.

The purchasers argued that Schedule A of the APS imposed an unqualified duty on the vendors to provide clear title, requiring the discharge of all easements, including standard utility easements.

The Court of Appeal upheld the motion judge's interpretation, finding that Schedule A did not conflict with paragraph 10 of the standard form agreement, which excluded minor utility easements.

The court reasoned that the purchasers' interpretation would lead to an absurd commercial result, as it would require the removal of essential services.

The appeal was dismissed, and costs were awarded to the respondents.

The appellant sought to appeal a judgment regarding the personal care of Anna Hernandez.

Anna Hernandez died before the appeal was heard, rendering the primary relief moot.

The Court of Appeal declined to hear the appeal, finding no live controversy, no public importance, and that hearing it would not be an appropriate use of judicial resources, even for incidental costs or potential implications for a passing of accounts proceeding.

The appeal was dismissed as moot.

The Crown appealed a demonstrably unfit 18-month sentence for sexual assault and breach of probation, arguing it failed to adequately address denunciation and deterrence given the accused's high moral blameworthiness and prior sexual assault conviction.

The Court of Appeal found the original sentence disproportionate but, considering fresh evidence of the accused's rehabilitation, varied the sentence to increase the probation period from two to three years instead of imposing further incarceration.

The appellant, James McCullough, appealed his convictions for first-degree murder and committing an indignity to a human body.

He admitted to killing and dismembering the victim but claimed it was a reaction to a sexual advance and not planned or deliberate.

The appeal raised two main issues: the trial judge's failure to instruct the jury on post-offence conduct and the admission of evidence regarding his desire to commit cannibalism and rap lyrics.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's handling of post-offence conduct evidence, as it was relevant to planning and deliberation and alternative explanations were presented to the jury.

The court also upheld the admission of the cannibalism ideation and rap lyrics, finding their probative value on issues of motive, intention, and planning outweighed their prejudicial effect, especially with proper limiting instructions.

The United Mexican States appealed a Superior Court of Justice decision that affirmed an arbitral tribunal's jurisdiction in a claim brought by Burr et al. under the North American Free Trade Agreement.

The arbitral tribunal had bifurcated proceedings into jurisdiction and merits phases, ruling it had jurisdiction over most claims.

Mexico's application to the Superior Court to set aside this jurisdictional ruling was dismissed.

Burr et al. moved to quash Mexico's appeal to the Court of Appeal.

The Court of Appeal granted the motion to quash, holding that the arbitral tribunal's ruling was a preliminary question of jurisdiction under Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration.

This article stipulates that a Superior Court's decision on such a preliminary jurisdictional ruling is 'subject to no appeal'.

The Court found that Mexico had not substantively pursued arguments under Article 34, which would permit an appeal, before the application judge.

The appellant appealed her conviction for importing cocaine, arguing the trial judge erred in not declaring a mistrial after a juror brought internet articles into the jury room.

She also argued her s. 11(b) Charter rights were violated by post-conviction delay and her right to make full answer and defence was compromised by lost airport surveillance video.

The Court of Appeal dismissed the appeal, finding the trial judge's inquiry into the jury issue was sufficient, the post-conviction delay was justified by a Gardiner hearing which constituted an exceptional circumstance, and the jury instructions regarding the lost video were fair.

The accused was convicted of sexual assault and acquitted of transmitting an intimate image without consent after the trial judge directed a verdict of acquittal on the latter charge.

The trial judge ruled that a FaceTime call was not a 'visual recording' under s. 162.1 of the Criminal Code because it lacked the capability for reproduction.

The Crown appealed the acquittal, and the accused appealed the conviction.

The Court of Appeal allowed the Crown's appeal, holding that the ordinary meaning of 'visual recording' includes a FaceTime call and does not require the image to be capable of reproduction.

The accused's appeal against conviction was dismissed, as the trial judge made no reversible errors in her jury instructions on consent or in handling objections to the Crown's closing address.

A new trial was ordered on the intimate image charge.

The appellant, a former senior compliance manager at Toronto-Dominion Bank (TD Bank), appealed the dismissal of her application for lack of standing.

She sought to uncover and remedy alleged regulatory infractions and trust breaches by TD Bank in its mutual fund administration, claiming unjust enrichment and wrongful dismissal.

The motion judge dismissed her application, finding she lacked standing.

The Court of Appeal dismissed the appeal, affirming that the court's inherent jurisdiction to supervise trusts does not negate standing requirements, that the private interest standing test (requiring a personal and direct interest) was correctly applied, and that the appellant failed to plead facts establishing such standing, including as a constructive trustee.

The court also rejected the argument that public interest standing principles should inform private interest standing or that her whistleblower status conferred standing for private litigation.

The appellant, Charles Mark Hilton, appealed the dismissal of his 14B motion by Nicholson J., which sought to set aside previous orders made in divorce proceedings, including those issued after he was noted in default.

The appellant alleged that the respondent, Marlene Dale Hilton, committed fraud through misrepresentations and material omissions during the uncontested trial.

Nicholson J. had dismissed the motion on the basis that the appellant had not appealed the earlier orders.

The Court of Appeal allowed the appeal in part, clarifying that while some orders resulting from the appellant's default required an appeal, the allegations of the respondent's misrepresentations and material omissions should have been determined on their merits under r. 25(19)(a) of the Family Law Rules.

The matter was remitted to the Superior Court for a new hearing on these specific allegations.

The appellant pleaded guilty to possession of a loaded restricted firearm and possession of a restricted firearm knowing possession is unauthorized.

He appealed his four-year sentence, arguing the sentencing judge erred in assessing an expert report regarding his post-traumatic stress disorder and in applying Gladue factors.

The Court of Appeal found the sentencing judge erred in assessing the expert's report, which was relevant to the circumstances of the offences and rehabilitation prospects.

The appeal was allowed and the sentence was reduced to three and a half years.

The appellant appealed a 24-month conditional sentence.

Based on unusual circumstances, significant pre-sentence custody, fresh evidence, and a Crown concession, the Court of Appeal found the original sentence unreasonable.

The court accepted a joint submission and varied the sentence to 12 months' incarceration, less 5 months' credit for pre-sentence custody, resulting in a net sentence of 7 months.

The accused appealed his conviction for attempted murder, arguing the trial judge erred in admitting improper opinion evidence from a 911 dispatcher and a homicide detective, and in admitting hearsay evidence from the complainant to EMS personnel.

The Court of Appeal found that the trial judge erred in allowing opinion evidence on the accused's credibility and demeanour, and in admitting the complainant's out-of-court statements as hearsay that did not meet necessity and reliability requirements.

The court rejected applying the curative proviso, finding the errors were not trivial and the Crown's case, while strong, was not overwhelming.

A new trial was ordered.

The appellant, Stonehouse Group Inc., appealed a motion judge's decision denying enhanced refund interest on an overpayment of provincial tax.

The overpayment resulted from a disallowed loss carry back under the Corporations Tax Act, which was later reversed.

The motion judge interpreted s. 79(7) of the Act as precluding enhanced interest for loss carry back refunds.

The Court of Appeal allowed the appeal, finding the motion judge's interpretation incorrect.

The Court held that such an interpretation would unfairly deny any refund interest, contrary to the legislative intent of the interest payment provisions, which aimed to balance the rights of government and taxpayers and provide enhanced interest for compelled overpayments arising from disputes.

This is a costs endorsement from the Court of Appeal for Ontario concerning an appeal brought by K. Matthew Hoang against Mann Engineering Ltd. et al.

The Court of Appeal awarded costs of the appeal to the respondents in the amount of $15,000, inclusive of disbursements and all applicable taxes.

The appellant condominium corporation appealed the trial judge's factual findings on an off-set issue and the costs disposition.

The respondent cross-appealed on costs.

The Court of Appeal dismissed the appeal on the off-set issue, finding no palpable and overriding error in the trial judge's factual findings.

However, the Court allowed the appellant's costs appeal and dismissed the respondent's cross-appeal, as the parties agreed the trial judge erred in principle by determining success on a distributive-costs basis.

The matter was remitted to the trial judge to determine the quantum of costs.

The appellant sued the respondents in negligence, alleging that the respondents improperly obtained an enforcement order during garnishment proceedings which caused the appellant's employer to terminate his employment.

The motion judge granted summary judgment dismissing the action, finding no duty of care was owed.

On appeal, the Court of Appeal affirmed the dismissal, holding that a judgment creditor seeking to realize on a judgment through garnishment proceedings does not owe a duty of care to the debtor to avoid causing harm to the debtor's ongoing employment.

The appeal was dismissed.

The appellant, who was found not criminally responsible for arson in 2007, appealed a disposition of the Ontario Review Board ordering his continued detention at a mental health facility.

He argued the Board erred by failing to consider all relevant factors under s. 672.54 of the Criminal Code and that a conditional discharge was the least onerous disposition necessary.

The Court of Appeal dismissed the appeal, finding the Board reasonably concluded that the appellant's risk of violent confrontations and inability to manage the stresses of community living required the supervision of a detention order.

The appellant, a general contractor, appealed the dismissal of its application for a declaration that the City of Toronto pay a construction holdback of $174,381.14.

The parties had previously entered into a global settlement of five lawsuits for $1,287,500, signing a release for all outstanding claims.

The appellant argued the holdback funds were impressed with a trust under the Construction Lien Act and separate from the settlement.

The Court of Appeal upheld the application judge's finding that the unambiguous terms of the settlement and release covered all claims, including the holdbacks, and dismissed the appeal.

The appellant pleaded guilty to possession of ketamine for the purpose of trafficking, producing ketamine, and failing to comply with a recognizance.

He appealed his convictions, seeking to set aside his guilty pleas to challenge a pre-trial ruling under s. 11(b) of the Charter, and appealed his 15.5-year sentence.

The Court of Appeal dismissed the conviction appeal, finding the guilty pleas were voluntary, unequivocal, and informed.

However, the Court allowed the sentence appeal, finding the original sentence demonstrably unfit and disproportionate for a first-time offender who pleaded guilty.

The total sentence was reduced to 10 years.

The appellant appealed his dangerous offender designation and indeterminate sentence following convictions for multiple offences against an intimate partner, including sexual assault with a weapon and forcible confinement.

The appellant argued the sentencing judge misapprehended expert evidence regarding his likelihood of recidivism and failed to properly assess the intractability of his conduct.

The Court of Appeal dismissed the appeal, finding no misapprehension of the expert evidence on age-related decline in violent behaviour.

The Court held that the sentencing judge's findings on intractability at the sentencing stage could be applied to the designation stage, and that the indeterminate sentence was appropriate given the appellant's poor treatment prospects and high risk of violent reoffending.