Bradley W. Miller

The moving party sought extensions of time to appeal three orders from the Superior Court: a contempt order dated October 10, 2017, a costs order dated January 26, 2018, and a sentencing order dated September 21, 2018, which struck the moving party's pleadings and allowed the respondent to proceed to an uncontested trial.

The motion judge dismissed the extensions for the first two orders on the basis of abuse of process, given the substantial delays, lack of satisfactory explanation, and the moving party's pattern of non-compliance with court orders and procedural rules.

However, the motion judge granted an extension for the sentencing order due to its severe procedural consequences, and stayed that order pending appeal.

The appellant appealed from an order striking his pleadings and limiting his trial participation rights in a family law proceeding.

The respondent sought spousal support and equalization of net family property following a brief marriage.

The appellant failed to comply with multiple court orders requiring disclosure of financial information and answers to undertakings and refusals given during examination.

The motion judge struck the appellant's Answer and imposed restrictions on his participation at trial.

The Court of Appeal dismissed the appeal but varied the order to augment the appellant's trial participation rights, permitting him to make an opening statement, cross-examine witnesses, and make closing submissions without requiring leave of the trial judge.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.

Appeal from a motion judge's order reducing spousal support from $4,000 per month to $1 per month.

The parties had entered into a minutes of settlement in 1991 providing for lifetime spousal support.

The respondent sought to eliminate support following his retirement at age 72, when his income decreased from $250,000-$300,000 annually to $65,000.

The motion judge found two material changes in circumstances: the appellant's failure to seek employment and the respondent's retirement.

The Court of Appeal allowed the appeal in part, finding that the appellant's failure to seek employment was not a material change in circumstances, but the respondent's substantial income reduction was.

The court set aside the $1 per month order and substituted an order for $850 per month for life, applying the Spousal Support Advisory Guidelines proportionally to the respondent's decreased income.

The appellant, 2138746 Ontario Inc., appealed a trial judgment finding that the respondent, Friday Harbour Village Inc., acquired legal and beneficial ownership of the Marina Strip by adverse possession, did not abandon its titled right of way over the Marina Strip, had a prescriptive easement over the Marina Strip, and did not commit actionable trespass.

The respondent cross-appealed a finding that its right of way over the Western Strip was abandoned.

The Court of Appeal dismissed all appeals, upholding the trial judge's findings on adverse possession and related matters.

The appellant was convicted by jury of second degree murder in the death of Orin Felix and attempted murder of Trevor Hunter following an altercation between two groups outside a bar.

The appellant appeals on grounds relating to the trial judge's jury instructions on post-offence conduct evidence and a corrective instruction regarding the appellant's testimony about a witness named Latoya Dejonge.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's handling of the post-offence conduct evidence or the corrective instruction, and concluding that the trial remained fair despite some unfortunate judicial decisions.

The Attorney General of Canada brought a motion to quash an appeal by Fay Brunning, a lawyer representing persons in proceedings under the Indian Residential Schools Settlement Agreement.

The appeal challenged a direction issued by the Eastern Administrative Judge requiring Brunning to appear before an Independent Assessment Process Adjudicator.

The Court of Appeal allowed the motion to quash, finding that the direction was an interlocutory order rather than a final order, and that any appeal from it should go to the Divisional Court with leave.

The court also found the appeal moot since the scheduled proceedings had already taken place.

The court noted that while Brunning's concerns about the judge's comments regarding her conduct were understandable, those comments were part of the reasons for judgment, not the order itself, and could be challenged in other pending appeals.

On appeal from a summary judgment order in a wrongful dismissal action, the Court of Appeal considered whether an employee's pre-acquisition service could be waived for purposes of calculating statutory termination and severance pay under the Employment Standards Act.

The employee was hired in 1980 by Bakermet, became a one-third owner, and received $17.16 million when the company was sold to ArcelorMittal in 2008.

He continued employment under successive fixed-term agreements until termination in 2015 at age 58.

The motion judge found the employee had waived pre-2008 service and was limited to six months' notice under the 2014 employment agreement.

The Court of Appeal reversed, holding that statutory entitlements cannot be waived, that the termination clause violated the Employment Standards Act, and that the employee was employed on an indefinite basis despite fixed-term language.

The court also rejected the employer's counterclaim for breach of restrictive covenants and fiduciary duties.

The appellant sought to set aside a separation agreement executed four years earlier under section 56(4) of the Family Law Act on the basis that the respondent failed to disclose significant assets.

The trial judge found that while the respondent had indeed failed to disclose certain family business interests, shareholder loan payments, and capital income from share sales, these assets were not "significant" within the meaning of section 56(4) in the context of the settlement negotiations.

The trial judge determined that the non-disclosed assets had no bearing on equalization and were irrelevant to support, as the parties had agreed to support based on an income figure substantially higher than the respondent's actual income at the time of separation.

The Court of Appeal upheld the dismissal of the application.

The appellant appealed his conviction for sexual assault.

The complainant testified she was asleep when the sexual activity occurred and had no recollection of it.

The appellant accepted that sexual activity had occurred based on DNA evidence but claimed no recollection and denied he would engage in non-consensual intercourse.

The trial judge instructed the jury on the requirement that the Crown prove the appellant knew the complainant was not consenting.

The appeal raised three grounds: whether the trial judge misdirected the jury on the knowledge requirement, whether the trial judge erred in instructing on circumstantial evidence, and whether the verdict was unreasonable.

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

The appellants sought to add three health care providers as defendants to a medical malpractice action more than two years after the original injury.

The motion judge dismissed the motion on the basis that the limitation period had expired.

The Court of Appeal allowed the appeal, finding that the motion judge applied the wrong test under the Limitations Act, 2002.

The court held that the motion judge failed to make proper findings of fact regarding when the appellants knew or ought reasonably to have known of their claims against the proposed defendants.

The court also found that the motion judge erred in treating lack of due diligence as a standalone ground for finding claims statute-barred.

The key distinction was that the claims against the proposed defendants differed from the claim against the original defendant, as they involved allegations that the health care providers failed to take immediate action once cauda equina syndrome was suspected, information that was only revealed during examinations for discovery in 2015.

The Crown appealed acquittals on a 28-count indictment involving prohibited firearms, devices, and weapons, theft, damage to a police vehicle, and breach of probation.

The respondent's left palm print was found on paper in a stolen police vehicle from which firearms, magazines, and OC spray were taken.

Three days later, the respondent was found with similar distinctive items.

The trial judge rejected the palm print evidence in isolation and acquitted on all counts.

The appellate court found the trial judge erred by failing to consider the palm print evidence in the context of the cumulative effect of all evidence.

The court allowed the appeal, entered a conviction on the OC spray count (which the respondent conceded), and ordered a new trial on the remaining counts.

The appellant appealed his conviction for assault with a weapon and his sentence of thirteen months' custody (less four months credit for pre-trial house arrest).

The trial judge had acquitted him of aggravated assault, uttering a threat to cause death, and possessing a weapon for a purpose dangerous to the public peace.

The appeal raised three grounds: (1) the verdict was unreasonable because the trial judge failed to find the requisite mens rea to threaten; (2) the conviction was inconsistent with the acquittal on the weapons charge; and (3) the trial judge failed to adequately scrutinize the complainant's evidence.

The Court of Appeal dismissed all grounds of appeal and upheld both conviction and sentence.

The appellant appealed a sentence of four years imposed for fraud offences.

The Court of Appeal found no error in the sentencing decision.

The court determined that the four-year sentence appropriately reflected the restraint principle given the quantum and duration of the fraud, the absence of genuine remorse, and the devastating impact on victims.

The court also found that the trial judge had properly assessed the mitigating evidence and was entitled to be unimpressed with much of the mitigation evidence presented.

Leave to appeal was granted but the appeal was dismissed.

Appeal from conviction and sentence.

The appellant challenged the trial judge's treatment of hearsay evidence, application of the W.D. test for assessing credibility, and delay in giving reasons.

The Court of Appeal found that the trial judge properly acknowledged hearsay limitations, correctly applied the W.D. test by considering the totality of evidence and burden of proof, and that any delay in reasons was justified by efforts to accommodate the parties.

The appeal was dismissed.

This is a costs endorsement following a partial appeal of a trial judgment concerning adverse possession and prescriptive easements.

The appellants successfully set aside the trial judge's finding that the respondent was entitled to a prescriptive easement over a cedar trail, but the appellants' appeal was otherwise dismissed.

The Court of Appeal reduced the trial judge's costs award from $42,954.63 to $32,000, finding that although the respondent lost on the cedar trail issue, he still bettered the offer to settle and his claims to adverse possession of the house lands and a prescriptive easement over the laneway were more significant than the cedar trail claim.

The respondents appealed an order from the Superior Court of Justice directing a new trial on the basis that the jury's answers on causation were fatally flawed.

The moving parties brought a motion to quash the appeal, arguing that the order was interlocutory and therefore only appealable to the Divisional Court with leave.

The Court of Appeal held that an order directing a new trial is interlocutory in nature, as it does not finally determine the substantive rights of the parties but rather requires another trial for that purpose.

The appeal was quashed and transferred to the Divisional Court.

The appellant appealed a summary judgment award requiring it to pay outstanding invoices for temporary staffing services.

The appellant sought to rely on a set-off defence based on fraudulent invoices submitted by the respondent's employees for workers who did not actually work at the appellant's plant.

The Court of Appeal upheld the summary judgment, finding that legal set-off was unavailable because the claim was for unliquidated damages, and equitable set-off was unavailable because the appellant bore responsibility for the fraud through its own representative's actions and was in the best position to prevent it.

The appellant appealed a trial judgment from the Superior Court of Justice dated August 29, 2017.

The Court of Appeal dismissed the appeal, finding that the appellant failed to demonstrate any error of law or palpable and overriding error of fact in the trial judge's assessment of evidence and application of governing principles.

The court affirmed that it is not the role of the appellate court to retry cases.

Costs were awarded to the respondent in the amount of $4,500 inclusive of disbursements and applicable taxes.

The appellant was convicted of trafficking in cocaine and marihuana, conspiracy to traffic in controlled substances, and participating in a criminal organization.

The principal issue on appeal concerned the admissibility of communications found on a Blackberry seized from a co-accused.

The trial judge had ruled the appellant lacked standing to challenge the search.

Following the Supreme Court of Canada's decision in R. v. Marakah, the Crown conceded the appellant had standing and that the seizure violated his Charter section 8 rights.

The appellate court applied the Marakah framework and determined the evidence must be excluded under section 24(2) of the Charter, as the serious breach of privacy rights and substantial impact on the appellant's Charter-protected interests outweighed society's interest in adjudicating the case on its merits.

The appeal was allowed and a new trial was ordered.