Bradley W. Miller

The Crown sought to appeal the respondent's acquittals for dangerous operation of a motor vehicle and flight from a peace officer.

After failing to serve the respondent personally, the Crown applied to the summary conviction appeal court for an order for substituted service.

The application judge dismissed the application, finding no jurisdiction to order substituted service under the Criminal Code for summary conviction appeals.

The Court of Appeal granted leave to appeal and allowed the appeal, holding that section 482(1) of the Criminal Code provides sufficient authority for rules governing substituted service in summary conviction appeals.

The appellant father and respondent mother lived in Germany with their two children.

The mother brought the children to Ontario for a time-limited educational stay with the father's consent.

When the consent period expired, the mother refused to return the children to Germany.

The application judge ordered the children's return under the Hague Convention, finding their habitual residence remained in Germany.

The Divisional Court reversed this decision, finding the habitual residence had changed to Ontario.

The Court of Appeal allowed the father's appeal, holding that a parent cannot unilaterally change a child's habitual residence during a time-limited consensual stay, and ordered the children returned to Germany.

The appellants challenged the constitutional validity of Brian's Law, which amended the Mental Health Act to expand criteria for involuntary committal and introduce community treatment orders (CTOs).

They argued the law violated section 7 of the Charter by authorizing forced treatment with neuroleptic medication.

The Court of Appeal upheld the application judge's dismissal of the challenge, finding that the legislation's highly individualized assessment criteria ensured it was not arbitrary, overly broad, or grossly disproportionate.

The court also dismissed claims under sections 9, 10, 12, and 15 of the Charter.

The appellant municipality appealed a summary judgment finding it owed a duty of care to a class of tenants to provide statutory notices of rent reductions following property tax decreases.

The Court of Appeal dismissed the appeal, holding that the municipality's specific interactions with the tenants through a pilot project created sufficient relational proximity to establish a prima facie duty of care.

The court further found no residual policy reasons to negate this duty, as the claim was limited to a specific group and did not conflict with the municipality's statutory obligations.

The municipality's failure to send the required notices breached the standard of care.

The appellant appealed his convictions on two counts of physical and sexual abuse against his common-law wife, arguing the verdicts were unreasonable, the trial judge misapplied the W.(D.) framework, and the reasons were insufficient.

The Court of Appeal dismissed the appeal, finding that the trial judge properly distinguished between counts where medical evidence did not support the allegations and the two counts where a witness's evidence confirmed the complainant's injuries.

The acceptance of this confirmatory evidence provided a reasoned explanation for rejecting the appellant's testimony.

The appellant appealed his sentence of four years' imprisonment imposed after a re-trial for dangerous driving and failing to remain at the scene of an accident.

At his first trial, he had been sentenced to two years less a day.

The Court of Appeal found that the sentencing judge erred in principle by failing to consider the fitness of the original sentence before imposing a greater sentence, as the facts at the second trial were essentially the same.

The appeal was allowed and the original sentence of 18 months for dangerous driving and six months consecutive for failing to remain was restored.

The appellant appealed his conviction for impaired driving causing bodily harm, arguing the trial judge's finding was unreasonable and misapprehended evidence regarding his refusal to provide a breath sample.

The Court of Appeal dismissed the appeal, finding the conviction was reasonably supported by evidence of alcohol consumption, an unexplained accident, obstructive behaviour, and the statutory inference from refusing a breath sample.

This endorsement concerns the costs of an application where Leslie Kuenzig sought a retroactive adjustment of child support from Wade Topp.

The court had previously awarded retroactive support from November 2011, rather than the 2001 date sought by Kuenzig, and ordered Topp to pay $68,588.98 in arrears.

Kuenzig sought $7,000 in costs, arguing that pro bono work should not preclude a reasonable award.

Topp contended that each party should bear their own costs due to mixed success, or that he should receive costs for the long motion.

Applying the Family Law Rules, the court found Kuenzig primarily successful despite not achieving the full retroactive period requested.

The court fixed Kuenzig's costs at $7,000, payable by Topp within thirty days, and deemed the award enforceable by the Family Responsibility Office.

The respondents brought a motion to extend the time to deliver responding materials until after the disposition of their motion to quash the appeal.

The appellants brought a cross-motion to have the motion to quash heard together with the appeal.

The court granted the respondents' motion and dismissed the cross-motion, noting that under the Practice Direction, a motion to quash based on jurisdiction is to be scheduled at an early date.

The appellants' refusal to consent was unreasonable, and costs were awarded to the respondents on a substantial indemnity basis.

The appellant police officer was dismissed for unsatisfactory work performance after a hearing officer found the police service's ad hoc performance evaluation procedures were sufficient despite deviating from mandatory policies.

The Ontario Civilian Police Commission allowed the officer's appeal, finding the strict application of the performance review policies was a mandatory precondition under O. Reg. 268/10.

The Divisional Court set aside the Commission's decision on judicial review.

The Court of Appeal allowed the officer's appeal and restored the Commission's decision, holding that the Commission's interpretation of the regulation was reasonable and entitled to deference.

The appellants appealed an order voiding transfers of funds used to purchase two condominiums, which were found to be fraudulent conveyances intended to defeat the respondent's claims for spousal and child support arrears.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the badges of fraud to shift the evidential burden, nor in his assessment of fraudulent intent at the time of the transactions.

A motion to introduce fresh evidence was also dismissed for failing to meet the Palmer test.

Following the release of the court's reasons on appeal, the parties agreed on the costs of the application.

The Court of Appeal ordered costs of the application to the appellants in the agreed amount of $35,000, inclusive of disbursements and HST.

The appellant, Mohamed El Boury, appealed his conviction for operating a motor vehicle with a blood/alcohol level in excess of 80mg.

The primary ground of appeal was the admissibility of the certificate of a qualified technician, specifically whether a copy had been properly served on the appellant as required by s. 258(7) of the Criminal Code.

The trial judge found that the certificate had been served on a balance of probabilities, a finding upheld on appeal.

The appeal court agreed with the Alberta Court of Appeal's reasoning in R. v. Redford that physical retention of the certificate is not required for valid service.

Additionally, the court found that even if the certificate was inadmissible, the Crown had proven the offence through viva voce evidence from the breath technician.

The appeal was dismissed.

The appellant, Rahman Wahab, appealed his conviction for operating a motor vehicle with excess blood/alcohol, arguing that his s. 10(b) Charter right to counsel of choice was violated.

The trial judge had misapprehended the timing of the appellant's assertion of this right.

However, the appeal court found that the appellant was not reasonably diligent in communicating his request for specific counsel, and the police had made reasonable efforts to facilitate counsel.

Therefore, no s. 10(b) Charter violation occurred.

Even if there had been a breach, the breath sample analyses would not be excluded under s. 24(2) of the Charter, given the minimal impact on rights and the strong societal interest in adjudicating drinking and driving cases.

The appeal was dismissed.

The respondent's dog bit four people, prompting the appellant medical health officer to issue an order requiring the dog to be euthanized.

After breaching an interim consent order that allowed him to keep the dog pending appeal, the respondent's appeal was dismissed and he was ordered to surrender the dog.

Instead, he sent the dog to the United States.

The appellant brought a motion for contempt, which the motion judge dismissed on the technicality that the respondent was asked to surrender the dog to the SPCA rather than the Humane Society as specified in the order.

The Court of Appeal allowed the appeal, finding it had jurisdiction because the dismissal of the contempt motion was a final order.

The Court held the motion judge erred by adopting a formalistic approach, as the respondent clearly breached the spirit and intent of the euthanasia order.

The appellant, Natalia Korzh, appealed her convictions for impaired driving and over 80, arguing violations of her Charter rights, including the right to trial within a reasonable time under s. 11(b).

The appeal court applied the new framework from R. v. Jordan, finding that the total delay of nearly 24 months (or just under 21 months after subtracting defence delay) exceeded the 18-month presumptive ceiling for provincial court cases.

The Crown failed to establish exceptional circumstances, largely due to its failure to provide timely disclosure of video evidence, which significantly extended the trial.

Consequently, the court granted the appeal and stayed the charges under s. 24(1) of the Charter.

The appellants entered into an agreement with the respondent to build and operate a car dealership.

The respondent terminated the agreement after the appellants failed to meet construction deadlines.

The trial judge found the termination was unreasonable but held that an exclusion clause protected the respondent from liability for damages.

On appeal, the appellants argued the exclusion clause should not apply to an unreasonable termination.

The Court of Appeal dismissed the appeal, finding the trial judge's interpretation of the broadly worded exclusion clause was reasonable and not tainted by palpable and overriding error.

The appellant was convicted of possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime, receiving an eight and one-half year sentence.

On appeal, he argued the trial judge erred by presuming police truthfulness, applying uneven scrutiny to his testimony, misapprehending evidence, and engaging in speculation.

The Court of Appeal rejected all conviction grounds, finding the trial judge's credibility assessments and factual findings were well-supported by the record.

The sentence appeal was allowed only to the extent of granting 65 days of pre-sentence custody credit that the trial judge had overlooked.

The appellant appealed his convictions for robbery with a firearm and related offences arising from a home invasion.

The convictions rested primarily on the testimony of an accomplice who had pleaded guilty but had not yet been sentenced.

The appellant argued the trial judge failed to exercise necessary caution in accepting the accomplice's evidence and sought to introduce fresh evidence regarding the accomplice's subsequent sentencing.

The Court of Appeal dismissed the fresh evidence application, finding it lacked cogency, and dismissed the appeal, holding that the trial judge properly cautioned himself regarding the unsavoury witness and made no reversible error in assessing credibility.

The appellant appealed his convictions for sexual interference, sexual exploitation, and sexual assault against his step-daughter.

He argued the trial judge erred in rejecting his evidence solely because he accepted the complainant's evidence, misapplied the burden of proof, and improperly ruled prior out-of-court statements inadmissible.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were sufficient, the burden of proof was properly applied, and the trial judge's credibility findings were sound despite the evidentiary ruling on prior statements.