Bradley W. Miller

The moving party (respondent in the main action) brought an interlocutory motion for the partition and sale of two jointly owned family cottages.

The responding party opposed the motion, arguing that the Partition Act was not specifically pleaded and that he might be able to buy out the moving party's interest after the equalization of net family property at trial.

The court held that the failure to specifically plead the Partition Act was not a bar to relief, as there was no unfairness or surprise.

The court granted the motion, finding that the responding party failed to demonstrate a genuine issue for trial or that a forced sale would be vexatious, malicious, or oppressive.

On a motion by counsel of record to be removed shortly before trial in a long-standing medical negligence action, the court held that an objective loss of client confidence and a dispute over the retainer constituted justifiable cause for withdrawal under Rule 2.09 of the Rules of Professional Conduct.

The court continued the sealing order over affidavits containing solicitor-client privileged material.

Because all parties acknowledged the action could not proceed to trial without replacement counsel, the trial was adjourned on strict terms, including a peremptory late-autumn trial date and no further expert reports or examinations.

Summary conviction appeal from an impaired driving conviction under s. 253(1)(b) of the Criminal Code.

The appellant argued the investigating officer arbitrarily detained him and unlawfully searched him when the officer stopped his vehicle while looking for another individual suspected of trespass and driving under suspension.

The appeal court held the officer had articulable cause and reasonable grounds to detain and question the driver based on the specific location, vehicle description, and surrounding circumstances, and that the subsequent arrest for impaired driving was supported by reasonable and probable grounds.

No breach of ss. 8 or 9 of the Charter was established, and the evidence would not have been excluded under s. 24(2) in any event.

On a summary conviction sentence appeal arising from a road rage assault, the appellant challenged a no-weapons probation condition and a five-year firearms prohibition imposed after a conditional discharge.

The court admitted fresh evidence concerning the appellant’s competitive shooting activities, firearm ownership, training, and post-sentence completion of anger management, applying the Palmer framework flexibly in the interests of justice.

The court held the sentencing judge applied the proper public safety test under s. 110 of the Criminal Code and that both the probation term and firearms prohibition remained reasonable despite the fresh evidence.

The appeal was dismissed, except that the appellant was given 30 days to lawfully transfer or surrender firearms and ammunition.

In a family law motion arising within a broader motion to change concerning custody, access, and child support, the moving party sought a restraining order and a contempt finding.

The court held the contempt allegations could not fairly be determined on conflicting affidavit evidence and adjourned that aspect sine die pending disclosure from the Children’s Aid Society, the police, and the involvement of the Office of the Children’s Lawyer.

The request for a restraining order under s. 46 of the Family Law Act was dismissed because the evidence of present risk was insufficient and largely speculative, particularly given the absence of recent contact.

No costs were awarded.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit.

The appeal centred on whether breath samples were admissible where the accused responded “No, not right now” when asked if he wished to contact counsel after arrest.

The court held that this response did not constitute a clear and unequivocal waiver of the right to counsel under s. 10(b) of the Charter.

Police obtained breath samples before providing a meaningful opportunity to consult counsel, and the failure to reiterate and facilitate access at the station constituted a Charter breach.

Applying the exclusion analysis under s. 24(2), the court found the breach deliberate and significant and excluded the breath evidence.

The accused brought a third party records application seeking cellphone records associated with a number subscribed to by the complainant.

The defence argued the records could confirm or refute alleged post‑incident communication between the complainant and the accused, relevant to credibility and full answer and defence.

Applying the two‑stage framework under ss. 278.3 and 278.5 of the Criminal Code and the jurisprudence in Mills and O’Connor, the court considered likely relevance, privacy interests, and the probative value of the requested records.

The court held that the accused met the threshold of likely relevance, noting the limited but potentially probative timeframe and the relatively lower privacy interest in call‑log records compared to counselling records.

The records were ordered produced to the court for judicial review, with further submissions scheduled on whether disclosure to the defence should follow.

The plaintiff by counterclaim brought a motion to amend pleadings to add an investment subsidiary as a defendant to the counterclaim after the limitation period had allegedly expired.

The court considered s. 21 of the Limitations Act, 2002 and the doctrine of misnomer.

It found that the counterclaimant had always intended to pursue claims against both the banking and investment arms of the financial institution and that the proposed defendant knew it was the intended defendant.

The amendment therefore constituted a correctable misnomer rather than the addition of a new party after the limitation period.

The motion to add the party was granted, subject to further particulars being provided for certain defamation allegations.

The applicants sought certiorari to quash a provincial offences information alleging contraventions of s. 122(1)(c) of the Securities Act, arguing that the Ontario Court of Justice exceeded jurisdiction when it refused to quash a second information sworn without obtaining new prosecutorial consent.

The court held that the impugned ruling concerned the validity of the information and therefore fell within matters for which certiorari relief is barred where an appeal route exists under s. 141(3) of the Provincial Offences Act.

In any event, the court found the justice properly determined that the second information merely split an existing count to reflect statutory amendments and introduced no new offences.

The original consent to prosecute therefore remained valid.

The certiorari application was dismissed.

Following a family law motion to change involving child support and post‑secondary expenses for adult children, the court addressed costs.

Both parties argued divided success, with the respondent seeking $15,606 and the self‑represented moving party seeking $15,080.94 including compensation for her own time.

The court applied Rule 24 of the Family Law Rules and the principles in Fong v. Chan regarding recovery by self‑represented litigants.

Although the moving party devoted significant effort, she could not recover for her own time because she had not forgone remunerative activity.

Finding she had largely prevailed on the motion, the court awarded her documented costs of $9,080.94, enforceable as support through the Family Responsibility Office.

The moving party mother brought a motion to change a previous order to seek child support and contributions to post-secondary education expenses for the parties' two adult children.

The responding party father argued that his disability pension income should not be grossed up, that child support should not be payable while one child lived away from home, and that the children should bear a larger portion of their education costs.

The court found that the parties' disability incomes were fully taxable and should not be grossed up.

The court ordered the father to pay child support for both children, finding that the child living away for school was deemed to reside with the parents under a previous order, and the other child was upgrading credits in preparation for post-secondary education.

The court further ordered that the post-secondary education expenses be shared equally in thirds between the mother, the father, and the respective child.

The surviving spouse brought an application for directions regarding the administration of an estate after the deceased died intestate following a marriage that revoked a prior will.

The respondents, the deceased’s mother and brothers, argued that a pre‑marital agreement waived the spouse’s entitlement to the matrimonial home and that the property should pass to the deceased’s surviving parent under the Succession Law Reform Act.

The court held that the agreement contained no direct and cogent language relinquishing the spouse’s rights on intestacy under the Succession Law Reform Act.

The provisions relied upon addressed separation or divorce rather than death and therefore did not constitute a waiver of inheritance rights.

The court appointed the surviving spouse as estate trustee without a will and declared her the sole beneficiary of the estate.

The accused applied for a declaration that the offence of trafficking a person under 18 under s. 279.011 of the Criminal Code was unconstitutional.

The applicant argued the provision violated s. 7 of the Canadian Charter of Rights and Freedoms on the basis that it was overly broad, impermissibly vague, and allowed conviction with insufficient mens rea.

The court held that the statutory requirement that the acts be done “for the purpose of exploiting or facilitating exploitation” imports a high subjective mens rea consistent with the serious stigma and penalties of the offence.

Interpreted purposively, the concepts of exploitation and the reasonable person standard provide sufficient precision and do not create unconstitutional overbreadth or vagueness.

The applicant failed to establish a Charter breach.

The applicant mother sought an order permitting her to relocate with the parties' child from Halton Region to London, Ontario, to live with her fiancé.

The respondent father opposed the move, arguing it would negatively impact his relationship with the child.

The court found that a material change in circumstances had occurred and that the move was in the child's best interests, as it would provide financial stability, greater educational support, and more quality time with the mother.

The mother was permitted to relocate with the child, subject to a specified access schedule for the father.

The defendants brought a motion to set aside a noting in default and a default judgment in an action concerning an alleged default under a second mortgage.

The defendants had served a notice of intention to defend but did not deliver a statement of defence and were subsequently noted in default and subjected to default judgment.

The court considered Rules 19.03 and 19.08 of the Rules of Civil Procedure and the circumstances surrounding communications between counsel.

The court found that plaintiff’s counsel failed to provide notice of the intention to note the defendants in default and failed to respond to correspondence from new defence counsel.

In the interests of justice, the court set aside the noting in default and the default judgment and ordered the defendants to deliver a statement of defence within 20 days.

The applicant, facing multiple drug trafficking and breach of recognizance charges, applied for a bail review after being detained on secondary grounds.

He argued the justice of the peace erred in law and that a material change in circumstances occurred due to the withdrawal of some outstanding charges and a revised electronic monitoring plan.

The Superior Court found no error in law but agreed the withdrawn charges constituted a material change.

However, upon reviewing the secondary grounds, the court dismissed the application, finding a substantial likelihood the applicant would continue committing offences and that the proposed sureties lacked the necessary judgment to supervise him effectively.

The defendant brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike the plaintiff’s claim on the basis that it disclosed no reasonable cause of action and constituted an abuse of process.

The plaintiff argued the defendant lacked standing due to alleged default and that the motion was not brought promptly.

The court rejected these arguments, finding the defendant was not in default and could bring the motion.

The court held the statement of claim disclosed no reasonable cause of action and duplicated earlier pleadings previously struck as abusive.

The pleadings were struck without leave to amend and the defendant was awarded $5,000 in costs.

Following a motion for leave to appeal temporary family law orders and a request for a stay pending appeal, the court determined the issue of costs.

The moving party had been granted leave to appeal and obtained a partial stay of orders relating to child support, spousal support, and a prior costs award.

The responding party argued that no costs should be awarded because the moving party was only partially successful.

Applying Rule 24 of the Family Law Rules and considering the factors under Rule 24(11), the court held that the moving party was the successful party overall and was therefore entitled to costs.

Following an extensive family law trial involving property division, business ownership, support, and tort claims between former spouses, the court considered competing claims for costs.

The respondent argued he was substantially successful and relied on a prior offer to settle, while the applicant sought substantial indemnity costs alleging misconduct, fraud, and disclosure failures during litigation.

The court found the respondent was largely successful on major issues but had behaved unreasonably during the proceedings, contributing to mistrust and prolonged litigation.

Applying the Family Law Rules, the court held that the respondent should be deprived of costs but that the conduct did not amount to bad faith warranting an award of costs against him.

Given the conduct of both parties and the overall circumstances, the court ordered that each party bear their own costs.

The applicant brought a motion seeking to strike the respondent’s pleadings and to vest his one-half interest in the matrimonial home in her, alleging breaches of prior court orders including a non-dissipation order and failure to pay spousal support and costs.

The respondent had sold assets listed in his financial statement to fund the purchase of a property in Florida and withdrew funds from an investment account despite a court order restraining dissipation of assets.

Although the court accepted that the withdrawal of funds from the investment account was used for urgent medical treatment for the parties’ child, it found that the purchase and encumbrance of the Florida property constituted a blatant violation of the prior court order.

The court concluded that striking the pleadings would be disproportionate but that protective relief was required.

The respondent’s interest in the matrimonial home was vested in the applicant pending trial, subject to the trial judge’s ultimate determination.