Bradley W. Miller

The appellant appealed from a partial summary judgment that limited the respondents' liability to $2 million pursuant to a liability cap in a personal services contract.

The appellant argued the motion judge erred in interpreting the contract by relying on subsequent conduct of the parties and in extending the liability cap to respondents who were not parties to the original contract.

The Court of Appeal upheld the motion judge's interpretation, finding no error in principle and affirming that the contract was extended to apply to the construction phase and that the liability cap was intended to benefit all respondents.

The appellant appealed an order dismissing his application to remove a writ of seizure and sale filed by a law firm against the matrimonial home.

The law firm had represented the appellant's wife in matrimonial litigation and obtained judgment for outstanding fees.

The appellant argued the writ constituted an encumbrance requiring his consent under section 21 of the Family Law Act.

The Court of Appeal dismissed the appeal, holding that the wife did not encumber the matrimonial home; rather, the law firm, as an arm's length creditor, was entitled to file the writ.

The appellant's interest in the home remains subject to the writ.

Appeal from a trial judgment in a fraudulent conveyance action.

The trial judge found the appellants liable for participating in a civil conspiracy to defraud the respondent and to prevent her from realizing on a judgment against one of the defendants.

The trial judge awarded judgment against one defendant in the amount of $175,000 and against two other defendants in the amount of $60,000.

The appellants challenged the trial judge's findings regarding the scope of the proceedings, the facts concerning monies received, and their distribution.

The Court of Appeal upheld the trial judgment, finding the conspiracy finding was supported by the record and that the trial judge had broad remedial authority under the applicable legislation.

This appeal concerns a financial dispute among adult siblings over entitlement to distributions from a valuable investment in a residential development in Oakville, Ontario.

The investment, originally a 10% interest in the Lower Fourth Joint Venture purchased by the father in 1969, was held by the mother in trust for three children in equal shares.

The daughter disclaimed her interest for tax reasons.

When distributions began in 2014, they were deposited into bank accounts opened in the mother's name.

The central issue was whether the mother held the distributions as bare trustee for the daughter or whether the daughter had received only individual gifts.

The Court of Appeal found that a bare trust existed over the bank account contents for the benefit of both the daughter and one son in equal shares, reversing the trial judge's finding that the mother held the funds beneficially.

The Ontario legislature enacted the Better Local Government Act, 2018, which reduced Toronto City Council from 47 to 25 councillors and changed ward boundaries in the middle of a municipal election campaign.

The applicants challenged the constitutionality of the Act, arguing it violated section 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression) and unwritten constitutional principles.

The application judge found the Act violated section 2(b) and allowed the application.

On appeal, the majority (D.M. Miller J.A., with Tulloch and Harvison Young JJ.A. concurring) allowed the appeal and upheld the Act as constitutional.

The majority held that section 2(b) does not guarantee effective expression, does not require government to maintain platforms for expression, and does not incorporate the right to vote from section 3 of the Charter.

The majority also rejected arguments based on unwritten constitutional principles and jurisdictional limits in section 92(8) of the Constitution Act, 1867.

MacPherson J.A. (with Nordheimer J.A. concurring) dissented, finding the Act infringed section 2(b) by interfering with freedom of expression during an active election and that the infringement could not be justified under section 1 of the Charter.

Appeal from a conviction for sexual assault following a judge-alone trial.

The appellant and complainant were guests at the same hostel and shared a co-ed room.

The complainant alleged the appellant sexually assaulted her; the appellant claimed the sexual contact was consensual.

The trial judge convicted the appellant.

On appeal, the Court of Appeal found that the trial judge's conduct and reasons for judgment gave rise to a reasonable apprehension of bias and an appearance of unfairness, warranting a new trial.

An appeal from an Ontario Review Board detention order with privileges up to the possibility of community accommodation.

The appellant challenged the Board's decision on three grounds: insufficient reasons, procedural error due to gaps in the record, and failure to adequately address why a conditional discharge was not the least restrictive disposition.

The Court of Appeal dismissed the appeal, finding no error in the Board's reasoning, no procedural defect, and that the detention order fell within a range of reasonable outcomes based on evidence of ongoing mental illness, delusional thinking, substance abuse, medication non-compliance, and lack of insight into symptoms.

The appellants sought to appeal a Superior Court decision dismissing their application for an order in lieu of mandamus to compel a justice of the peace to hold a hearing on a private information alleging perjury by a police officer.

The appeal arose from a pattern of repeated attempts by the appellants to pursue private prosecutions against officers who executed a Feeney warrant in 2006, during which a family member was tasered.

After multiple failures before different justices of the peace and Superior Court judges, the appellants filed a third information alleging the same perjury in a different territorial jurisdiction.

The Court of Appeal dismissed the appeal summarily, finding it both frivolous and vexatious.

An appeal from an Ontario Review Board disposition ordering detention in a secure forensic unit became moot upon the appellant's death while in custody.

The Court of Appeal considered whether special circumstances warranted proceeding with the appeal despite the general rule that appeals abate upon the death of the appellant.

Finding no systemic issues, legal questions of general public importance, or collateral consequences that would justify exercising discretion to hear the appeal, the court dismissed the appeal as abated.

This is a costs endorsement following an appeal from a trial judgment.

The appellants (RBC Dominion Securities Inc. and Royal Bank of Canada) achieved mixed success on appeal: the court unanimously dismissed their appeal regarding the foreign exchange methodology award, but a majority allowed their appeal regarding the carried interest plan damages award, reducing the principal judgment from $1,144,181.50 to $190,789.

The parties disagreed on the treatment of the trial costs award of $100,000 in light of the appeal disposition.

The appellants sought reduction to $40,000, while the respondent sought to maintain the award or reduce it to no less than $75,000.

The court reduced the award to $80,000, considering that the respondent succeeded on four main issues at trial, with no appeal taken on two issues, and only divided success on the two issues that were appealed.

On appeal from a Superior Court decision dismissing an application under the Hague Convention on the Civil Aspects of International Child Abduction.

The appellant sought the return of four children to Germany, arguing they were habitually resident there.

The respondent opposed the application, arguing the children were habitually resident in Ontario.

The application judge found the children were habitually resident in Ontario and dismissed the application.

The Court of Appeal upheld this decision, confirming the application of the hybrid model for determining habitual residence established in Office of the Children's Lawyer v. Balev.

The court rejected all grounds of appeal, including allegations of inadequate reasons, misapplication of the hybrid model, factual errors, and procedural errors regarding the involvement of the Office of the Children's Lawyer.

The appellant was convicted of sexual interference and invitation to sexual touching but acquitted of sexual assault, all charges arising from the same facts and evidence.

The appellant appealed on the ground that the verdicts were inconsistent and therefore unreasonable.

The Crown cross-appealed the acquittal, arguing that confusing jury instructions explained the inconsistency.

A five-judge panel was convened to resolve conflicting authorities regarding the role of jury instructions in inconsistent verdict analysis.

The majority held that the Supreme Court's guidance in R. v. F. (J.) provides authoritative direction: if the Crown wishes to respond to an inconsistent verdict argument by asserting that an acquittal resulted from legal error in instructions, it must appeal the acquittal.

The majority found the instructions legally correct and declined to order a retrial, instead entering acquittals on the conviction counts.

The dissent would have allowed both appeals and ordered a new trial on all counts, finding the charge confusing when viewed as a whole.

The appellant appealed his designation as a dangerous offender and his indeterminate sentence following guilty pleas to two counts of aggravated sexual assault.

The offences involved failing to disclose his HIV-positive status to two women before having unprotected sex with them, resulting in both women contracting HIV.

The appellant had a lengthy criminal record including convictions for sexual assault causing bodily harm, counselling the murder of a police officer, uttering threats, and possession of a weapon for a dangerous purpose.

Both Crown and defence psychiatrists assessed him as having antisocial personality disorder with psychopathic traits and marijuana dependence disorder, presenting moderate to high risk for sexual and violent recidivism.

The sentencing judge designated him as a dangerous offender and imposed an indeterminate sentence.

The Crown conceded two errors: failure to conduct prospective risk assessment at the designation stage and failure to consider Gladue factors.

The appeal was dismissed as there was no reasonable possibility the errors affected the outcome.

The appellant, who is HIV positive, was convicted of three counts of attempted murder, three counts of aggravated sexual assault, and two counts of administering a noxious thing (HIV).

The trial judge imposed a global sentence of 14 years, with a net sentence of 9 years and 3 months after credit for presentence custody, plus a five-year long-term supervision order.

On appeal, the Court of Appeal quashed the three attempted murder convictions due to misdirection on the mens rea requirement, finding the trial judge failed to adequately explain that the Crown must prove either that the appellant's purpose was to kill or that he believed death was a virtually certain consequence of his actions.

The convictions for aggravated sexual assault were upheld.

The Court ordered a new trial on the attempted murder charges and set aside the stay on the charge of attempting to administer a noxious thing to one complainant, ordering a new trial on that count as well.

The sentence appeal was adjourned pending further submissions.

The Registrar of Alcohol, Gaming and Racing appealed from a Superior Court declaration that the GotSkill gaming system is not a game as defined under s. 197(1) of the Criminal Code.

The application judge had concluded that GotSkill was not a game of mixed chance and skill because a sufficiently skilled player could ultimately beat the machine.

The Court of Appeal allowed the appeal, holding that GotSkill is a game of mixed chance and skill.

The court clarified that under the Criminal Code, any game containing both elements of chance and skill—regardless of which predominates—falls within the definition of a game.

The presence of a systematic resort to chance when the game is played multiple times, combined with the skill element required in the game task, was sufficient to classify GotSkill as a game of mixed chance and skill.

The appellant appealed his conviction for first degree murder in the death of Ernesto Agsaulio.

The appellant had planned and deliberated the murder of his ex-wife Maria Ching.

When attempting to carry out this plan, Agsaulio intervened to prevent the appellant's entry into the house, and during the ensuing struggle, the appellant mortally wounded Agsaulio.

The trial judge instructed the jury that planning and deliberation regarding the murder of the intended victim (Ching) could elevate an unintended victim's murder (Agsaulio) to first degree murder if committed in the course of carrying out the plan.

The Court of Appeal found this instruction erroneous and substituted a conviction for second degree murder.

The appellant, a homeowner, sought indemnification under her property insurance policy for damage to her log house caused by a contractor's restoration work.

The trial judge found coverage existed but dismissed her claim due to late notice of the loss, denying relief from forfeiture.

The Court of Appeal upheld the dismissal but varied the costs awards, finding the trial judge had expanded the scope of issues beyond those directed by the appellate court in its prior decision, thereby increasing the appellant's reasonable cost expectations.

Appeal of wrongful dismissal damages award.

Employer terminated employee without cause and conceded entitlement to 18 months' notice.

Trial judge awarded damages for lost opportunity to earn carried interest plan entitlements during notice period and for foreign exchange methodology differences.

Appellate court allowed appeal in part, setting aside damages for lost carried interest opportunities but upholding foreign exchange award.

Key issue: whether employee entitled to damages for incentive compensation under plan that employer had contractual right to terminate, where plan was integral to employee's compensation package.

The appellant appealed a Superior Court judgment dismissing her claim for professional negligence and breach of contract against real estate agents on the basis that the action was statute barred under section 5(1)(b) of the Limitations Act, 2002.

The underlying dispute arose from the sale of a property in 2008-2009, with the appellant alleging that the real estate agents improperly induced her to sign a counter-offer and presented it against her instructions.

The appellant commenced the action in 2015, claiming she only discovered her claim during an examination for discovery in March 2015.

The Court of Appeal upheld the dismissal, finding that the appellant should have known of her claim well before commencing the action, particularly after obtaining a real estate licence and taking real estate courses that would have put her on notice to make further inquiries.

The appellant was convicted of impaired operation of a motor vehicle causing death, operating a motor vehicle with over 80 mg of alcohol per 100 ml of blood, and two counts of driving while impaired causing bodily harm, following a head-on collision that resulted in one death and injuries to two passengers.

The appellant appealed on four grounds: alleged violation of s. 8 Charter rights regarding blood sample seizure; alleged violation of s. 10(b) Charter rights regarding access to counsel; alleged misapprehension of evidence regarding a third vehicle; and alleged error in rejecting evidence of bolus drinking prior to the collision.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.