Kathryn N.M. van Rensburg

This appeal arose from high-conflict divorce litigation, addressing three issues: the division of post-valuation date increase in the matrimonial home's value, the determination of parties' incomes for child support, and the s. 7 expense order.

The Court of Appeal found the trial judge erred in applying proprietary estoppel to divide the post-separation increase in the matrimonial home's value, as the respondent did not demonstrate detrimental reliance.

The appeal on income imputation and s. 7 expenses was dismissed, with clarification provided for the latter.

The appellant, Ivan David Lira, appealed his convictions for robbery and firearms offences, and his sentence.

The conviction appeal centered on an alleged s. 10(b) Charter breach due to delayed access to counsel.

The Court of Appeal upheld the trial judge's finding that the delay was justified under the *Rover* exception due to police and public safety concerns and preservation of evidence, and that even if there was a breach, the evidence seized prior to the delay would not be excluded under s. 24(2) due to lack of causal link.

The sentence appeal argued insufficient credit for harsh pre-sentence confinement conditions.

The Court affirmed the trial judge's approach of applying 1.5:1 *Summers* credit and treating harsh conditions as a mitigating factor in the global sentence calculation, consistent with *Marshall*, without a specific mathematical quantification.

Both the conviction and sentence appeals were dismissed.

The appellant, Michael Fournier, appealed his conviction for trafficking fentanyl-carfentinil and manslaughter in connection with the overdose death of a fellow inmate.

He argued that the trial judge erred in rejecting his defence of duress and in finding legal causation for manslaughter.

The Court of Appeal dismissed the appeal, affirming that the trial judge correctly found the appellant acted willingly, had safe avenues of escape, and that his trafficking was a significant contributing cause of the victim's death, despite the victim's voluntary drug consumption.

The appellant appealed his sentence for convictions including possession of a loaded prohibited firearm, aggravated assault, and possession of a firearm while prohibited.

His primary grounds were that the trial judge failed to consider his Indigenous roots (Gladue factors), the impact of contracting COVID-19 in pre-sentence custody, and his rehabilitation efforts.

The Court of Appeal found that the record did not support these submissions, as the trial judge had indeed considered these factors when accepting a lenient joint submission.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant, Mario Inacio, appealed his dangerous offender designation and indeterminate sentence following convictions for robbery, unlawful confinement, assault, threatening death, and extortion.

He argued the trial judge erred by finding a pattern of repetitive aggressive behaviour, concluding the behaviour was intractable, and imposing an indefinite term of imprisonment.

The Court of Appeal dismissed the appeal, finding the trial judge correctly identified a behavioural pattern based on the appellant's consistent use of weapons, threats, and violence for financial gain, and that the finding of intractability was supported by compelling expert testimony regarding his high risk of reoffending violently.

The indeterminate sentence was upheld based on the totality of evidence, including the appellant's poor insight, lack of remorse, and long history of anti-social and violent conduct.

The appellant, Mario Inacio, appealed his convictions for robbery, unlawful confinement, assault, threatening death, and extortion, stemming from a dispute over a $400 rent payment.

The appellant argued that the trial judge failed to adequately assess the reliability of the complainant's evidence, given her admitted drug use and memory problems.

The Court of Appeal found no error in the trial judge's assessment of reliability, noting that the judge was aware of the complainant's issues but nonetheless accepted her evidence.

The appeal was dismissed.

The appellant sought leave to appeal his convictions for assault causing bodily harm and breach of recognizance, following the dismissal of his summary conviction appeal by the Superior Court of Justice.

The appellant's claims of ineffective assistance of counsel were rejected at the Superior Court level, which found no factual basis or merit to the allegations.

The Court of Appeal denied leave to appeal, determining that the proposed appeal raised issues of fact and credibility, not law alone, and lacked significance for the administration of justice or merit, failing to meet the high threshold for a second appeal in summary conviction matters.

The appellant, Norman Perry, appealed his conviction for assault with a weapon, arguing that the trial judge provided insufficient reasons for accepting the complainant's evidence and rejecting his own, especially given his acquittal on a related break and enter charge.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons were discernable in context, allowed for meaningful appellate review, and that the two verdicts were reconcilable.

The appellant, found not criminally responsible (NCR) for attempted murder and assault, appealed a DNA order granted by the trial judge under s. 487.051(3) of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the test for imposing a DNA order on an NCR offender and did not err in granting the order based on stereotypical reasoning or speculation, as the conclusions were anchored in evidence.

This decision addresses two related appeals.

In the main appeal (C70874), Physicians’ Dialysis Center Inc. (PDC), and Drs.

George Wu and Gordon Wong appealed a trial judgment that found them unjustly enriched at the expense of Drs.

Perkins and Boll, and liable for general and punitive damages due to abuse of trust and breach of fiduciary duty.

The appellants argued errors in the interpretation of a Memorandum of Understanding (MOU) concerning compensation for clinic space and services, and that the claims were statute-barred.

The Court of Appeal dismissed this appeal, upholding the trial judge's findings on unjust enrichment, contract interpretation (clarifying payments were for overhead, not extra billing), and the application of the limitations period.

In the second appeal (COA-22-CV-0392), Dr. Donald Kim appealed the denial of his share in interpleaded funds, and this appeal was granted.

The appellant, Robert Sowell, appealed his dangerous offender designation and indeterminate sentence for child luring, transmitting explicit material to a child, possessing child pornography, and failing to comply with a recognizance.

The sole ground of appeal was the sufficiency of the sentencing judge's reasons for rejecting a determinate sentence followed by a long-term supervision order in favour of an indeterminate sentence.

The Court of Appeal found the sentencing judge's reasons, though brief, were sufficient and responsive to the key issue of the intractability of the appellant's risk and treatability in the community, particularly regarding his willingness and ability to take sex drive reducing medication.

The appeal was dismissed.

The appellant, Ian Reid, appealed his convictions for multiple firearm-related offences, alleging Charter ss. 7 and 9 violations and insufficient reasons from the trial judge.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the detention was not arbitrary, the police had reasonable and probable grounds for arrest based on confidential informant information, and the trial judge's reasons were sufficient.

The court also rejected the appellant's argument regarding the burden of proof on the Charter application and the trial judge's assessment of police credibility.

The appellant, Oslyn Lewis, appealed the dismissal of his action for a real estate commission, which was granted by a motion judge on summary judgment due to the expiry of the limitation period.

The appellant argued that the motion judge erred in finding no tolling agreement, in not allowing him to adduce evidence of psychological incapacity, and in applying the discovery rule.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision.

The court affirmed the strict test for tolling agreements, found the fresh evidence regarding incapacity insufficient and inconsistent with the appellant's prior actions, and distinguished the case from situations involving running accounts for limitation purposes.

The appellant's motion to adduce fresh evidence was also dismissed.

The appellants appealed the dismissal of their action for damages following a truck fire, asserting claims for breach of contract (failure to provide first-party insurance) and negligent misrepresentation (regarding insurance coverage).

The Court of Appeal dismissed the breach of contract claim, affirming the trial judge's interpretation that the respondent was only obligated to make existing insurance available, not to secure full coverage.

However, the Court allowed the appeal on the negligent misrepresentation claim, finding the trial judge erred in legal principle by not making a definitive factual finding on whether the representation was made and by misapplying the elements of the negligent misrepresentation test.

A new trial was ordered solely for the negligent misrepresentation claim.

The appellant, an international student eligible for a Post-Graduate Work Permit (PGWP), was offered an entry-level engineering position by the respondent employer.

The offer was conditional on proof of permanent eligibility to work in Canada (Canadian citizenship or permanent residency).

When the appellant disclosed he would be working on a PGWP, the employer withdrew the offer.

The Human Rights Tribunal of Ontario found the employer discriminated against the appellant on the basis of citizenship.

The Divisional Court set aside the tribunal's decision.

The Court of Appeal allowed the appeal and restored the tribunal's decision, holding that it was reasonable for the tribunal to find that a policy excluding PGWP-holders—who are legally entitled to work full-time in Canada—constitutes discrimination on the basis of citizenship, even if the policy excepts permanent residents.

The appellants, convicted of first-degree murder and attempted murder, appealed their convictions and sentences.

The Court of Appeal allowed the appeals for first-degree murder convictions, ordering a new trial due to the trial judge's error in restricting routes to liability and failing to leave included offenses (second-degree murder and manslaughter) to the jury.

The court found that the murder and attempted murder charges were not inextricably linked.

The appeals on the attempted murder convictions were dismissed, and leave to appeal the life sentences for attempted murder was granted but the appeals were dismissed, finding no error in principle in the sentencing.

This is an appeal from an order of the Commercial List judge concerning insolvency proceedings.

The appellants, Bryton, sought to exercise an option to purchase a property and obtain orders declaring the option valid and immune from challenge by other creditors under various acts (Fraudulent Conveyances Act, Assignments and Preferences Act, Canada Business Corporations Act oppression remedy, and Bankruptcy and Insolvency Act).

The application judge dismissed Bryton's request for a vesting order and declaratory relief, finding that the claims were not res judicata and that declaratory relief was not the appropriate vehicle to pre-emptively bar unadjudicated creditor claims.

The Court of Appeal upheld the application judge's decision, confirming that the validity of the option was not res judicata and that the refusal to grant declaratory relief was a proper exercise of discretion, as the application procedure was not suitable for dismissing unproven claims.

The appellant appealed an order requiring him to execute a standard form mutual release with a "no claims over" clause, stemming from a 2017 settlement agreement.

The appellant argued procedural errors (motion under r. 49.09), limitation period expiry, and the overbreadth of the release form.

The Court of Appeal affirmed that while r. 49.09 was inapplicable, the motion was properly brought to enforce a settlement in an ongoing action, and no limitation period had expired as the claim arose when the appellant refused to sign.

However, the court found the motion judge erred in not prescribing the specific form of release.

The appeal was allowed in part, directing the appellant to sign a release including a "no claims over" clause but without an indemnity for its breach, and requiring the attachment of a specific undertaking.

The appellants appealed a summary judgment for a mortgage deficiency, arguing that the respondent (mortgagee) failed to take reasonable precautions to obtain the property’s true market value during power of sale proceedings, leading to an improvident realization.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly applied the summary judgment test and that there was no evidence of the respondent failing to take reasonable precautions or of an improvident sale.

The court also rejected the appellants' arguments regarding inadequate evidence and the legal test for a mortgagee's duty, affirming that a mortgagor must show a higher price would have been obtained but for any alleged breach.

This is an appeal from the dismissal of a motion to set aside a noting in default.

The Court of Appeal found that the motion judge erred by failing to consider the balance of prejudice and the full context of the dispute, including the appellants' arguable defence and counterclaim.

The court emphasized the strong preference for deciding civil actions on their merits.

The appeal was allowed, the noting in default was set aside, and the appellants were directed to file their statement of defence and counterclaim.