Karen Bernofsky

Marc Gauthier appealed his conviction for first-degree murder of Tammy Avery.

The appeal raised two main issues: the admissibility of a voicemail left for his doctor (Dr. Morrison) and the voluntariness of confessions made to police and correctional officers.

The Court of Appeal found no reasonable expectation of privacy in the voicemail, as it constituted criminal harassment, and thus it was admissible.

While the court found the trial judge erred in admitting the confessions due to an inadequate evidentiary record regarding voluntariness, it applied the curative proviso, concluding that this error did not impact the verdict as the confessions only confirmed the undisputed fact of the killing, not the mens rea for first-degree murder.

The appeal was dismissed.

The appellant, Alexander Shaulov, appealed a decision from a case management judge that effectively removed "Non-LSO parties" from his lawsuit against the Law Society of Ontario.

Shaulov had sued the LSO and other parties after repeatedly failing the barrister exam.

The case management judge had previously struck claims against the Non-LSO parties and stated that to re-plead against them, Shaulov would need consent or leave of the court under Rule 26.02 of the Rules of Civil Procedure.

The Court of Appeal quashed the appeal, finding it lacked jurisdiction because the case management judge's decision was interlocutory, not a final order, and therefore an appeal would require leave to the Superior Court.

The plaintiff, Kamran Sheeraz, brought a motion under Rule 30.10 for production of documents from non-parties Hina Rizvi and Rizvi Legal Professional Corp. The action arose from a failed mortgage brokerage partnership where the defendant, Shoaib Seathi, allegedly diverted funds and claimed his computer records were corrupted.

The non-parties, a real estate lawyer and her firm, opposed production, citing privilege, the need for client notice, and inconvenience.

The court granted the motion, finding the documents relevant and necessary for a fair trial, especially given the defendant's inability to produce them.

Privilege claims were rejected as the information was either previously disclosed or could be addressed by redaction of client identifiers.

The court also dismissed the argument for personal service on clients, noting the anonymization would protect their identity.

Costs were reserved to the trial judge.

The Gendelman Defendants sought to vary a Mareva order for the third time, requesting authorization to sell a property (Ravel Property) and access proceeds for legal fees, increased living expenses, and repayment of third-party debts.

The Plaintiff opposed the variation.

The court applied the four-part Credit Valley test for varying Mareva injunctions, finding that the Gendelman Defendants failed to establish they had no other assets available, were not fully transparent about their finances and income, and did not adequately explain significant discrepancies in their net worth statements or the nature of the debts they sought to repay.

The court dismissed the motion, emphasizing the strong prima facie case of the Plaintiff regarding alleged misappropriation of funds.

The Law Society of Ontario (LSO) brought a motion to strike the plaintiff's administrative law claims, which challenged the LSO's licensing examination structure and procedural fairness.

The court dismissed the LSO's motion, finding that the claims disclosed a reasonable cause of action and were better suited for summary judgment or trial.

The court also addressed the plaintiff's attempt to re-add previously struck non-LSO defendants, confirming that these defendants were no longer parties to the action as all claims against them had been struck without leave to amend and they were not necessary parties.

The appellant, Alexander Shaulov, appealed the dismissal of his claims against the Law Society of Ontario (LSO) and other respondents, and sought leave to appeal a costs order.

Shaulov, a prospective lawyer, was removed from the LSO's licensing process after failing the Barrister Licensing Examination multiple times.

He sued, alleging discrimination under the Canadian Charter of Rights and Freedoms and the Human Rights Code, and challenging the LSO's processes.

The motion judge dismissed most claims.

The Court of Appeal partially allowed the appeal, granting leave to amend the discrimination claims against the LSO and remitting the administrative law claims for determination of dismissal under Rule 21.01(1)(b).

The appeal from the costs order was dismissed.

This is a costs endorsement from the Court of Appeal for Ontario.

The appellants were ordered to pay the respondents $25,000, all-inclusive, for the costs of the appeal.

The decision follows an appeal from an order of the Superior Court of Justice.

The defendants sought costs following their largely successful motion to strike the plaintiff's statement of claim.

The self-represented plaintiff also sought costs, arguing divided success.

The court found the defendants were entirely justified in bringing the motion and were entitled to costs.

The court awarded the defendants partial indemnity costs in the all-inclusive amount of $12,500, finding the amount fair, reasonable, and consistent with the parties' expectations.

The appellants, a Township and its officials, appealed the dismissal of their anti-SLAPP motion seeking to dismiss a defamation and misfeasance in public office action brought by the respondents, owners of a community newspaper.

The Court of Appeal dismissed the appeal, finding no reviewable error in the motion judge's application of the anti-SLAPP test under s. 137.1 of the Courts of Justice Act, including the weighing of public interest in expression versus harm to reputation, and the assessment of available defences.

The court affirmed that the motion judge correctly applied the legal tests and that anti-SLAPP motions are not the forum for definitive determinations of complex defences.

The defendants moved to strike the plaintiff's statement of claim, alleging no reasonable cause of action under the Charter or Human Rights Code, and that certain claims were ultra vires the Law Society Act.

The plaintiff, a self-represented individual who failed the bar exams multiple times, alleged discrimination based on cognitive disability and racial/ethnic/cultural background, and challenged the Law Society's authority.

The court struck the plaintiff's claims under section 7 of the Charter and claims related to cognitive disability (actual or perceived) under section 15 of the Charter and the Code without leave to amend.

Claims against the Non-LSO Defendants were struck entirely.

Claims related to racial, ethnic, and cultural discrimination under section 15 of the Charter and the Code against the Law Society were struck with leave to amend, provided they relate to the plaintiff's specific characteristics.

The court also found it lacked jurisdiction over the "Non-Charter Claims" (ultra vires, unreasonableness, procedural fairness) as these belong to the Divisional Court for judicial review.

The court issued a costs endorsement following the dismissal of the defendants' anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

Both parties sought costs.

The defendants claimed over $250,000 for eight different court steps, arguing the self-represented plaintiffs caused unnecessary legal expenses.

The plaintiffs sought $30,000 for successfully defending the motion.

The court awarded the defendants $34,000 for various interlocutory steps, finding the plaintiffs' litigation strategy was disproportionate and caused unnecessary expenses.

The court declined to award costs to the plaintiffs for the s. 137.1 motion, applying the statutory presumption against costs for successful responding parties due to their conduct.

The Crown appealed the acquittal of the respondent for second-degree murder, arguing the trial judge made errors of law in evaluating evidence, specifically regarding witness testimony, a formal admission about a substance trail, and speculation about blood evidence.

The Court of Appeal dismissed the appeal, finding no legal errors in the trial judge's analysis and reiterating that appellate review on a Crown appeal is limited to questions of law, not the reasonableness of an acquittal or reweighing of evidence.

The applicants sought to enforce two letters rogatory issued by the U.S. District Court for the District of Columbia to compel documentary and oral evidence from the respondent, a non-party in the underlying U.S. patent infringement litigation.

The respondent opposed, arguing the requests were overly broad, moot due to discovery deadlines, and contrary to public policy as they sought proprietary source codes.

The court granted the applications, enforcing the letters rogatory but narrowing their scope and imposing protective conditions, including compliance with a supplemental protective order and the deemed undertaking rule.

The plaintiff brought a motion in writing for an order compelling the defendants to produce a further and better affidavit of documents.

After the defendants filed their responding record and factum, the plaintiff filed multiple supplementary motion records containing new expert requests, which the defendants had no opportunity to review before leaving the country.

The court adjourned the motion sine die, directing the plaintiff to file a single, consolidated motion record and factum in compliance with the Rules of Civil Procedure before the motion could proceed.

The appellants appealed a motion judge's decision dismissing their action against the respondent insurance company for denial of accident benefits.

The action was commenced on August 25, 2015, more than two years after the respondent's final denial of benefits on January 29, 2013.

The Court of Appeal upheld the motion judge's conclusion that the action was statute barred under the applicable limitation period.

The appellants' assertion of bias against the motion judge was rejected as having no merit on the record.

The appellant appealed a summary judgment decision dismissing her claims against Minto Group Inc. (her penthouse landlord) and Fasken Martineau DuMoulin LLP (her lawyers).

The appellant had been defrauded by a man she met online who misrepresented his age, wealth, and background.

She sought damages from various parties, alleging they failed to protect her from the fraudster.

The Court of Appeal upheld the summary judgment, finding that the appellant's claims against both Minto and Faskens lacked merit.

Against Minto, the court found no genuine issue requiring trial on claims for intrusion upon seclusion, breach of contract, negligence, negligent misrepresentation, or infliction of mental distress.

Against Faskens, the court found that the lawyer had no obligation to conduct background investigations on the appellant's fiancé absent explicit instructions, and that the scope of the retainer did not include such duties.

The appellants appealed from a Superior Court order that set aside a Master's decision permitting amendment of the Statement of Claim to substitute the Regional Municipality of York and Brennan Paving and Construction Ltd. for the originally named defendants based on misnomer.

The original claim arose from an accident allegedly caused by a pothole on McCowan Road.

The Court of Appeal dismissed the appeal, finding that the Master's inference that the substituted defendants would have known they were the intended defendants was not available on any reasonable view of the evidence.

The Notice of Claim and Statement of Claim, even when read together, were not capable of supporting such an inference without further inquiry.