Bradley W. Miller

The plaintiff was involved in a motor vehicle accident and commenced an action against one driver.

He later amended his claim to add a second driver as a defendant, and the first driver crossclaimed against the second driver.

The second driver successfully moved for summary judgment dismissing the plaintiff's claim as statute-barred, but the motion judge refused to dismiss the crossclaim.

On appeal, the Court of Appeal allowed the plaintiff's appeal, finding the motion judge erred by conflating a lack of due diligence with the actual date of discoverability under the Limitations Act, 2002.

The Court dismissed the second driver's cross-appeal regarding the crossclaim, upholding the motion judge's finding on when the claim for contribution and indemnity was reasonably discoverable.

The appellant sought leave to challenge refusals to extend time to appeal multiple Part III provincial offence sentences for driving without insurance, relying on fresh evidence of serious mental illness and inability to pay.

The court held that it has jurisdiction under s. 131 of the Provincial Offences Act to hear, with leave, an appeal from a judgment denying an extension of time under s. 85 in a Part III proceeding.

Although the motion judge made no reversible error on the record then before him, the court admitted fresh psychiatric and financial evidence under the Palmer test and concluded that the interests of justice warranted sentence relief.

The total outstanding fines were reduced to $5000 with two years to pay.

The tenant's business premises were destroyed by a fire caused by a contractor retained by the landlord.

The tenant's insurer paid the policy limits and brought a subrogated claim against the landlord for the remaining uninsured losses.

The commercial lease required the tenant to insure its property against fire and to name the landlord as an additional insured, but also contained a clause requiring the landlord to indemnify the tenant for damage caused by the landlord's negligence.

The Court of Appeal held that the tenant's covenant to insure constituted an assumption of the risk of fire damage, relieving the landlord of liability even for its own negligence.

The appeal was allowed and the tenant's action dismissed.

In an addendum to a previous decision, the Court of Appeal for Ontario modified its endorsement on consent of the parties to remit the quantification of damages to a different judge of the Superior Court of Justice, rather than the original motion judge.

The accused, jointly charged with firearms offences, brought applications for a stay of proceedings under s. 24(1) of the Charter, alleging their s. 11(b) rights to a trial within a reasonable time were breached.

The total time from charge to the anticipated end of trial was approximately 33.5 months.

The court analyzed the delay, attributing portions to inherent time requirements, neutral delay (including illness of counsel and accommodating co-accused's counsel), and institutional delay.

The court found the institutional delay of approximately 16 months fell within the combined Morin guidelines for provincial and superior courts.

Balancing the prejudice against the societal interest in trying serious firearms charges, the court dismissed the applications.

The appellants appealed a summary judgment decision regarding a software licensing dispute.

The motion judge found that the respondent breached the licence agreement and infringed copyright by using the software on operating systems other than AIX, but did not breach the agreement by using it on multiple servers.

The Court of Appeal upheld the motion judge's interpretation of the contract, finding no server restriction but confirming the AIX operating system restriction.

However, the Court allowed the respondent's cross-appeal in part, finding that the motion judge erred in dismissing the estoppel defence regarding the AIX restriction, and directed that the estoppel issue proceed to trial alongside the limitation defence and damages.

The appellant challenged the validity of a memorandum of agreement (MOA) transferring his late mother's house to his sister, the respondent, in exchange for $100,000 and a promise of lifetime residence.

The appellant argued the mother lacked capacity, did not understand English sufficiently (non est factum), and was subject to undue influence without proper independent legal advice.

The Court of Appeal upheld the trial judge's findings that the mother understood the MOA, was not coerced, and received competent independent legal advice that rebutted the presumption of undue influence.

The appeal was dismissed.

The appellants challenged the validity of the testator's 2010 wills on the basis of lack of testamentary capacity and undue influence.

The respondents successfully moved to dismiss the challenges on the basis that they were barred by the equitable doctrines of estoppel by representation and estoppel by convention.

The Court of Appeal allowed the appeal, holding that the equitable doctrines of estoppel do not apply to bar a challenge to the validity of a will.

The Court also held that an interested person does not have an automatic right under rule 75.01 of the Rules of Civil Procedure to require that a will be proved in solemn form, as the court retains discretion over whether and how a testamentary instrument is proved.

The appellant, author of a book, alleged that the respondents illegally reproduced and sold unauthorized copies of his work, claiming primary and secondary copyright infringement.

The respondents successfully moved for summary judgment, with the motion judge finding no evidence that they had published, handled, distributed, or offered for sale any infringing copies.

On appeal, the appellant argued the motion judge failed to apprehend key evidence and was biased.

The Court of Appeal dismissed the appeal, finding the motion judge's factual conclusions were supported by the evidence and that the hearing was fair and impartial.

The appellants, former franchisees of a home medical equipment business, appealed a decision enforcing a restrictive covenant that prevented them from operating a similar business within a 30-mile radius for 18 months after the franchise agreement expired.

The franchisor's corporate parent operated a competing store in the same territory, and the franchisor admitted it had no intention of opening another franchise in that area.

The Court of Appeal allowed the appeal, holding that because the franchisor had no intention of operating in the protected territory, it had no legitimate or proprietary interest to protect there.

Consequently, the restrictive covenant was unreasonable and unenforceable.

The appellant was struck by a car and retained a lawyer who pursued accident benefits but failed to commence a tort action within the limitation period.

The appellant sued the lawyer for negligence, and new counsel subsequently issued a statement of claim against the driver.

The motion judge dismissed the tort action as statute-barred, finding the appellant failed to exercise reasonable diligence to discover whether her injuries met the Insurance Act threshold.

The Court of Appeal upheld the dismissal, concluding that the appellant's failure to inquire about the permanence of her injuries was unreasonable and that a defence medical report obtained during litigation did not toll the limitation period.

The appellant, a second mortgagee on a matrimonial home, appealed a judgment denying its claim for additional funds and interest based on unregistered amending agreements.

The appellant argued its claim trumped that of an execution creditor.

The Court of Appeal dismissed the appeal, finding the appellant had previously admitted its security only applied to the registered principal amount and had taken an inconsistent position in a separate action.

The court also rejected the appellant's equitable mortgage argument and upheld the costs awards.

The appellant wife appealed a trial judge's decision to retroactively vary a 2005 final support order under s. 17 of the Divorce Act.

The trial judge had eliminated substantial support arrears and ordered the wife to repay over $113,000 to the respondent husband, based on a finding that the husband's income had decreased prior to the 2005 order.

The Court of Appeal allowed the appeal in part, holding that the trial judge erred in principle by relying on pre-order circumstances and effectively rewarding the husband for his failure to make financial disclosure in 2005.

Applying the S. (D.B.) and P. (L.M.) principles, the Court found the husband's subsequent income reduction constituted a material change, but limited the retroactive relief due to his delay and non-disclosure.

The Court reinstated the child support arrears for the daughter, terminated child support for the son as of December 2010, and terminated spousal support as of January 2012, relieving the wife of any repayment obligation.

The appellants appealed the dismissal of their claims against the respondent in his personal capacity and as estate trustee for their parents' estates.

The appellants argued the trial judge erred in finding no secret trust existed, in concluding the respondent did not hold a property in trust, and by intervening during testimony in a way that created a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence and credibility, and concluding the single intervention did not meet the threshold for bias.

The appellants appealed an order refusing to set aside a default judgment.

They sought to introduce fresh evidence consisting of expert reports suggesting a key document in the litigation was forged.

The Court of Appeal admitted the fresh evidence, noting that while the appellants failed to exercise due diligence by not raising the issue before the motion judge, the interests of justice required a trial to resolve the real concerns about the bona fides of the respondent's claim.

The appeal was allowed and the default judgment set aside.

The appellant appealed a judgment of the Superior Court of Justice.

On consent of the parties, the Court of Appeal dismissed the appeal on the terms of a draft order.

The appellant appealed the trial judge's dismissal of his claims regarding damages under the Line Fences Act and a dispute over the sale of certain parcels of land.

The Court of Appeal upheld the trial judge's findings that the appellant failed to prove damages regarding the fence and that the land sale agreement excluded the disputed parcels.

The appeal was dismissed, and leave to appeal the trial costs order was refused.

The appellant appealed a partial judgment of $152,314.44 awarded to the respondent franchisee.

The appellant argued the trial judge erred by refusing an adjournment to allow him to retain new counsel and by not allowing his counsel to get off the record before hearing a motion based on an unanswered Notice to Admit.

The appellant also claimed ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision to refuse the adjournment, noting the appellant chose not to attend the trial despite warnings.

The court also rejected the ineffective assistance claim, finding counsel acted faithfully and the issues arose from the appellant's failure to communicate.

The landlord appealed a summary judgment decision regarding its termination of a commercial lease.

The parties had orally agreed to extend the commencement date of the lease for at least one year.

The landlord later attempted to terminate the lease under a clause allowing termination if it could not deliver possession within six months of the commencement date.

The Court of Appeal held that the termination notice provided in December 2011 was out of time, as the commencement date remained April 1, 2011, and the landlord failed to exercise its termination right within the six-month window.

Judgment was granted in favour of the tenant for breach of contract.

The respondents sought partial indemnity costs of $7,500 following an appeal.

The appellants argued no costs should be awarded due to divided success on the appeal's two issues.

The Court of Appeal awarded the respondents their requested costs, finding that they succeeded on the more significant issue regarding restrictions on the sale of shares to a third party.