Bradley W. Miller

The appellants, owners of property in Wychwood Park, Toronto, challenged their obligation to pay annual levies under an 1891 trust deed governing common property in the residential community.

The appellants argued that the positive covenant to pay levies does not run with freehold land under Ontario law.

The trial judge dismissed the trustees' claim, accepting the positive covenants argument.

The appeal judge reversed, holding that both the benefit and burden exception and the conditional grant exception to the positive covenants rule apply under Ontario law.

The Court of Appeal allowed the appeal, holding that the appeal judge erred by failing to follow binding precedent in Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123, which established that neither exception forms part of Ontario law.

The court found that the grants of benefit in the trust deed were not framed as conditional upon payment of the levy, and therefore the conditional grant exception did not apply.

The appellants, owners of property within Wychwood Park, a residential community in Toronto, challenged their obligation to pay annual levies for maintenance and taxes of common property pursuant to a 1891 trust deed.

The respondent trustees sought to recover unpaid levies from 2010-2013.

The appellants invoked the common law rule that positive covenants do not run with freehold land.

The Court of Appeal for Ontario held that the positive covenant obligation was not enforceable against the appellants, as neither the "benefits and burdens" exception nor the "conditional grant" exception to the positive covenant rule applied under Ontario law.

The court affirmed that the Amberwood precedent, which rejected adoption of these exceptions in Ontario, remained binding.

The respondent disputed fees charged by the appellant accountants for services rendered in respect of three transactions, including the structuring of a butterfly transaction.

A fees action was settled and the parties executed a broadly worded release in 2008 referring to all claims existing up to that time arising from any and all services provided through to the end of 2007.

In 2011, the respondent learned that the butterfly transaction could be subject to an income tax liability of more than $1 million instead of being tax free as intended.

The respondent sued for damages for negligence.

The motion judge and Divisional Court dismissed the appellant's motion for summary judgment, finding the release did not bar the claim because the negligence only came to light in 2011.

The Court of Appeal allowed the appeal, holding that the release clearly and unequivocally covered all claims arising from services provided through December 31, 2007, including unknown claims.

An appeal concerning the validity of an excluded driver endorsement in an automobile insurance policy.

The insured's driver's license was suspended, and she arranged insurance with the respondent on the basis that she would be an excluded driver.

After her license was reinstated, she drove the vehicle and had an accident.

The appellant, the injured parties' uninsured motorist carrier, sought a declaration that the insured was fully covered, arguing the excluded driver endorsement was void because it was not in a form pre-approved by the Superintendent of Financial Services under section 227(1) of the Insurance Act.

The court held that non-compliance with section 227(1) is a matter for the superintendent, not the courts, and that the use of an unapproved form does not necessarily invalidate the contractual agreement between the parties regarding exclusion from coverage.

The appellant appealed his conviction for assault entered by the Ontario Court of Justice.

The Crown's key witness, Bonney, gave inconsistent testimony throughout the trial.

The trial judge permitted the Crown to cross-examine Bonney on a prior statement to police under section 9 of the Canada Evidence Act after finding him adverse.

The appellant challenged the propriety of the Crown's re-examination and the trial judge's acceptance of Bonney's initial testimony.

The Court of Appeal upheld the conviction, finding the re-examination was appropriate and the trial judge properly assessed the evidence.

The conviction on assault with a weapon was stayed pursuant to the Kienapple principle.

The deceased was subject to court orders requiring him to pay spousal and child support and to maintain his wife as the irrevocable beneficiary of his life insurance policy.

After separation, the deceased entered into a relationship with another woman whose child was born three months after his death.

The deceased left an insolvent estate.

The other woman brought an application for dependants' relief seeking to claw back the life insurance proceeds into the estate under section 72(1)(f) of the Succession Law Reform Act.

The wife sought a declaration that the policy did not form part of the estate or that she was a creditor whose rights were protected under section 72(7) of the Act.

The trial judge and Divisional Court held the policy formed part of the estate.

The Court of Appeal allowed the appeal, holding that section 72(7) excludes from the claw back the amount of proceeds required to satisfy the deceased's court-ordered spousal and child support obligations where the support recipient was designated as the irrevocable beneficiary.

The appellant appealed a summary judgment dismissing her action against a lawyer for breach of contract and breach of fiduciary duties arising from real estate transactions in 2011.

The motion judge found the claim was statute-barred, as the appellant knew of her claim and damages by May 2012, but did not commence the action until September 2014, more than two years later.

The appellant argued the motion judge erred in analyzing discoverability and in finding no medical evidence of incompetence during the relevant period.

The Court of Appeal upheld the motion judge's findings and conclusions as available on the record and found no palpable and overriding error.

The appeal was dismissed with costs awarded to the respondent.

Appeal from a Superior Court order on motions to change custody, residency, and child support.

The father appealed the trial judge's dismissal of his motion to change the child's primary residence from the mother's home in Owen Sound to his apartment in Toronto, and to grant him final decision-making authority.

The father also challenged the retroactive child support award dating to January 2012.

The appellate court upheld the finding of no material change in circumstances regarding custody and residency, but allowed the appeal in part regarding child support, varying the retroactive date to June 3, 2014 (the date of the motion to change) and correcting the set-off calculation to reflect only 50% of the outstanding costs award.

The appellant appealed a summary judgment decision granting the respondent approximately $311,000 on a mortgage debt and dismissing the appellant's counter-claim for a refund of payments made.

The appellant had participated in a fraudulent transaction by allowing himself to be put forward as the mortgagor when the true owner could not qualify for a mortgage.

The appellant received $5,000 for his participation and made payments on the mortgage for seven years before it went into default.

The Court of Appeal upheld the summary judgment, finding no error in the motions judge's application of the rules and rejecting the appellant's arguments regarding the unenforceability of the mortgage.

The appellant filed a notice of appeal seeking to set aside a decision of the Superior Court of Justice.

The lower court had issued five separate judgments in five different actions that were heard together but not consolidated.

The notice of appeal did not reflect the style of any of the five judgments, and no appeal from any individual judgment fell within the monetary jurisdiction of the Court of Appeal.

The court found it lacked jurisdiction to consolidate matters resulting in five separate judgments and transferred the matter to the Divisional Court, which possessed the appropriate monetary jurisdiction.

This is a costs endorsement following an appeal and cross-appeal to the Court of Appeal for Ontario.

The respondents were successful on both the appeal and cross-appeal.

The court awarded costs to the respondents in the amount of $40,000, inclusive of all disbursements and HST.

The judgment was also varied on consent of the parties to correct two monetary amounts in paragraphs 5 and 7.

An appeal under the Child and Family Services Act was dismissed as moot.

The appellant acknowledged that the appeal was not about the return of the child and involved a question of law considered in the absence of a concrete dispute between the parties.

The Court of Appeal found no overriding and palpable error in the lower court's discretionary decision to refuse to entertain the appeal on mootness grounds.

The lower court properly applied the factors set out in Borowski v. Canada (Attorney General).

The respondent was employed as President and CEO of the appellant's television division under a fixed-term employment agreement expiring October 31, 2011.

The agreement provided for a two-year severance payment and a six-month paid sabbatical upon expiry.

When the contract expired, the parties continued negotiations for a new agreement but could not reach consensus.

The appellant refused to pay the severance or arrange the sabbatical, claiming the respondent had waived these entitlements.

The appellant subsequently terminated the respondent's employment with eight months' notice and a two-month severance package.

The respondent obtained summary judgment for breach of contract, recovering damages for the two-year severance payment and payment in lieu of the sabbatical.

On appeal, the appellant argued the respondent had waived the sabbatical entitlement and that the severance provision was invalid under the Employment Standards Act.

The Court of Appeal dismissed the appeal, finding no valid waiver and rejecting the argument that an inapplicable termination clause could void the severance entitlement.

The appellant was convicted of sexual assault and sentenced to two years' imprisonment following a trial in which the trial judge found that the complainant fell asleep and awoke to find the appellant engaged in non-consensual intercourse with her.

The appellant appealed his conviction on three grounds: (1) the trial judge erred in assessing evidence of prior sexual activity; (2) the trial judge erred in applying the rule in Browne v. Dunn; and (3) the trial judge reversed the burden of proof.

The Court of Appeal allowed the conviction appeal on the ground that the trial judge erred in finding violations of the rule in Browne v. Dunn and in drawing negative inferences about the appellant's credibility as a result.

The Court found that these errors adversely impacted the appellant's credibility and that there was a real risk the erroneous findings influenced the trial judge's assessment of the evidence and tipped the scale toward a finding of guilt beyond a reasonable doubt.

The conviction was quashed and a new trial was ordered.

The appellant, Dr. Lynn Gehl, appealed a Superior Court decision dismissing her application for registration as an "Indian" under the Indian Act.

Dr. Gehl's entitlement to status turned on the 1985 amendments to the Act, which restored status to individuals whose ancestors had been unjustly deprived of it.

The central issue was whether the Registrar's Policy, which imposed strict evidentiary requirements for proving paternity, unreasonably denied Dr. Gehl registration when the identity of her paternal grandfather was unknown.

The Court of Appeal allowed the appeal and granted a declaration that Dr. Gehl was entitled to be registered under section 6(2) of the Indian Act.

The appellant appealed from a motion judge's order striking his pleading and dismissing his action as frivolous, vexatious, and an abuse of process.

The appellant had previously brought an action in contract against the respondents claiming they had guaranteed a $30,000 short-term loan.

That action was dismissed on summary judgment and the appeal was dismissed.

One month later, the appellant brought a new action arising from the same facts but framed in tort, alleging misrepresentation, fraud, and deceit.

The respondents moved to strike the second action as an abuse of process on the basis of res judicata.

The motion judge found the tort action was based on the same facts as the dismissed contract action and that the appellant should have included all causes of action in the original pleading.

The Court of Appeal upheld the motion judge's decision and dismissed the appeal with costs.

The appellant appealed a judgment ordering him to pay $1,293,734.54 owing on a private residential mortgage granted to the respondents in February 2011.

The appellant raised two grounds of appeal: that the trial judge erred in refusing to grant an adjournment requested on the trial date and in proceeding with the trial in the appellant's absence.

The appellant also sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised her discretion in refusing the adjournment given the lengthy history of the litigation, multiple pre-trials, prior adjournment, the appellant's failure to retain counsel, and the respondents' readiness to proceed.

The court also found that the appellant's proposed defence lacked merit and that any fresh evidence would not have yielded a different outcome.

The plaintiff, Adam Papp, brought a claim for wrongful dismissal, defamation, and other damages against his former employer, Stokes Economic Consulting Inc., and its president, Ernest Stokes.

The defendants conceded wrongful dismissal without cause, disputing only the quantum of reasonable notice.

The court found that Ernest Stokes' statements made during a reference check, which led to Papp being denied a job, were substantially true and protected by qualified privilege, as Stokes did not act with malice or recklessness.

Consequently, the defamation claim and associated damages were dismissed.

The court awarded Papp four months' reasonable notice for wrongful dismissal, reduced by payments already received.

The appellant appealed his conviction for possession of fentanyl for the purpose of trafficking and sought leave to appeal his sentence of 48 months' imprisonment.

Following a search warrant execution, police found five 100 microgram fentanyl patches and other drugs.

The appellant pleaded guilty to simple possession but the Crown rejected this plea.

He was convicted after trial of possession for the purpose of trafficking based primarily on expert police opinion regarding the quantity.

The Court of Appeal found that the trial judge improperly abdicated his role by deferring entirely to the expert's opinion on the ultimate issue.

The conviction was set aside and substituted with a conviction for simple possession.

The sentence was reduced to one day of imprisonment in addition to time already served, as the appellant had already served over three years.

A tenant obtained summary judgment against a landlord for recovery of losses arising from a fire at leased premises under a commercial lease.

The landlord appealed, and the Court of Appeal allowed the appeal, finding that the motion judge erred in interpreting the lease by failing to apply binding appellate authority regarding contractual allocation of risk, failing to assign meaning to all contested lease terms, and ruling that the tenant's breach of its insurance covenant did not bar its subrogated claim.

The Supreme Court of Canada remanded the matter for reconsideration in light of Ledcor Construction.

On remand, the Court of Appeal affirmed its original decision, holding that the correctness standard of review applied to extricable questions of law within the motion judge's interpretation of the negotiated lease.