Kathryn N.M. van Rensburg

This is a costs endorsement following an appeal.

The Court of Appeal had previously released its decision and invited written submissions on costs.

Considering the appellant's partial success on one issue and the dismissal of the balance of the appeal, the court fixed costs of the appeal at $20,000, inclusive of HST and disbursements, payable by the appellant to the respondent.

The appellant, G.H., appealed convictions for sexual assault and related sexual touching charges, and sought leave to appeal his sentence.

The trial judge had found the complainant credible but with reliability concerns, which were addressed by confirmatory evidence from the complainant's brother.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of evidence, including the use of confirmatory evidence and the holistic approach to ongoing sexual abuse allegations.

The Court also dismissed the sentence appeal, finding the five-year sentence within range despite a factual error by the trial judge.

However, a lifetime Sex Offender Information Registration Act (SOIRA) order was varied to 20 years in light of recent Supreme Court of Canada jurisprudence.

The applicant sought judicial review of the Minister of Justice's order to surrender him for extradition to the United States on charges of child luring and child pornography production.

The applicant challenged the order on two grounds: whether the Minister failed to independently assess the Cotroni factors and whether the Minister sufficiently addressed the applicant's personal circumstances regarding his s. 7 Charter rights and s. 44(1) of the Extradition Act.

The Court of Appeal found no legal error in the Minister's application of the Cotroni factors, noting the Minister considered multiple factors beyond the Attorney General's opinion.

Regarding the s. 7 and s. 44(1) challenge, the court found the Minister's determination that the high threshold for "shocking the conscience" or "unjust or oppressive" was not met, was reasonable, despite acknowledging potential undue hardship from a longer sentence.

The application for judicial review was dismissed.

This is a costs endorsement following the dismissal of an appeal and cross-appeal in a class proceeding.

The court outlines the disposition of costs, including payments between the Law Foundation of Ontario, the Attorney General of Canada, and the Ontario Health Insurance Plan.

The original appeal by Kathryn Anne Taylor was dismissed, leading to this costs decision.

This is an appeal in a class action concerning an infectious disease outbreak at a pain care centre.

The appellant, Dr. Stephen James, challenged the trial judge's findings of negligence, breach of fiduciary duty, and the application of the limitation period, as well as the award of punitive damages and costs.

The Court of Appeal upheld the trial judge's conclusions that Dr. James breached the standard of care by failing to consistently use aseptic technique and to report/investigate infections.

The court affirmed the use of statistical evidence to establish a rebuttable presumption of causation for the class, and found no error in the breach of fiduciary duty or the appropriateness of punitive damages.

The appeal on costs, including the order for Dr. James to pay the successful co-defendant nurses' costs, was also dismissed.

The appellant insurer appealed a judgment declaring a life insurance policy valid, arguing fraudulent misrepresentation by the insured regarding a criminal conviction.

The policy had been in force for over five years, triggering an incontestability clause under the Insurance Act, requiring the insurer to prove fraud.

The Court of Appeal dismissed the insurer's appeal and motion to admit fresh evidence.

While acknowledging the application judge erred in disregarding admissions of the conviction, the Court found this error did not alter the ultimate conclusion that the insurer failed to prove the misrepresentation was made with the intent required for civil fraud (knowledge or recklessness), concluding it was likely due to mistake or negligence.

The moving party sought a panel review of a prior order by Pardu J.A. that dismissed her motion to set aside a Registrar's order dismissing her appeal for delay and to extend time to perfect the appeal.

The Court of Appeal dismissed the review motion, finding no error in the motion judge's assessment of the moving party's delay or the lack of merit in the underlying appeal.

The appellant, Daniel Castellano, appealed his convictions for various criminal offences, including mischief, careless storage of a firearm, possession of stolen property, explosives, and a weapon for a dangerous purpose.

He raised two grounds of appeal: that the trial judge erred in concluding his police statement was voluntary, and in dismissing his application to cross-examine the affiant on the information to obtain the search warrant (ITO).

The Court of Appeal dismissed the appeal, affirming the trial judge's holistic approach to voluntariness and her discretion in denying cross-examination on the ITO, finding no error in principle or application of the relevant tests.

The Landlord appealed a trial judgment concerning a commercial lease, challenging conclusions regarding rent for a shed area and mezzanine, and the tenant's option to extend the lease, as well as the costs award.

The Court of Appeal allowed the appeal only to correct the limitation period for arrears of "non-lease-based rent" for the shed area from two to six years, finding it fell under the Real Property Limitations Act.

All other grounds of appeal, including the mezzanine rent, the validity of the lease extension, and the costs award, were dismissed.

The appellants sought to appeal a Superior Court order refusing a sealing order, made in the context of a disability settlement approval.

The preliminary issue for the Court of Appeal was to determine if the order refusing the sealing order was a final or interlocutory order for jurisdictional purposes.

The Court found that the order, along with other concurrent orders dismissing claims, constituted a final disposition of the proceeding, thus making it a final order properly appealable to the Court of Appeal.

The appellant was convicted of importing cocaine and appealed on two grounds: the trial judge erred by allowing expert evidence on the likelihood of a drug organization using a blind courier, and by not providing a limiting instruction to the jury.

The Court of Appeal dismissed the appeal, finding no error in admitting the expert evidence, particularly because defence counsel introduced the topic during cross-examination and agreed to the rephrased question.

The court also found no need for a limiting instruction as the evidence was not prejudicial and its exploration was a tactical decision by the defence.

The appellant, representative plaintiff in a class action concerning defective temporomandibular joint (TMJ) implants, appealed the dismissal of her action following a trial of common issues.

She alleged the Canadian government (Health and Welfare Canada, HWC) owed a duty of care to regulate and warn about the devices.

The Court of Appeal upheld the trial judge's finding that no private law duty of care was owed by HWC, either through the legislative scheme or through interactions with class members, and found no palpable and overriding error in the trial judge's factual findings regarding the approval status of the devices.

The Attorney General's cross-appeal on costs was granted leave but dismissed, with the court affirming the trial judge's discretion in awarding costs, particularly considering the public interest nature of the case and the Class Proceedings Fund.

This appeal concerned the interpretation of a forum selection clause in a Share Purchase Agreement (SPA).

The appellants, Savanta Inc. and GEI Consultants, Inc., sought to stay portions of an action and counterclaim, arguing that the clause conferred exclusive jurisdiction on Massachusetts courts.

The clause stated disputes "must be brought in any state or federal court... in Massachusetts, and each Party irrevocably submits and agrees to attorn to the non-exclusive jurisdiction of such court." The motion judge found the clause ambiguous and thus non-exclusive, allowing Ontario to retain jurisdiction.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her interpretation that the term "non-exclusive" applied to the jurisdiction generally, not merely between state and federal courts within Massachusetts.

The appellant, Joan Holmes, appealed a summary judgment granted in favour of the respondents, Aurelio and Maria Acquaviva, in a mortgage enforcement action.

Holmes had defaulted on a mortgage payment and subsequently alleged an elaborate mortgage fraud against the respondents and others in a separate action.

The motion judge found no genuine issue requiring a trial, concluding that Holmes had not provided evidence to support her fraud claims and that the mortgage claims were severable from her fraud allegations.

The Court of Appeal upheld the motion judge's decision, finding no error in his analysis or conclusion that there was no genuine issue requiring a trial.

The appeal was dismissed, and costs were awarded to the respondents on a full indemnity scale.

The appellant, Lalendra Desilva, appealed his convictions for possession of controlled substances for the purpose of trafficking and possession of proceeds of crime.

He argued that the trial judge erred in finding reasonable grounds for his arrest, the lawfulness of subsequent searches, and in assessing breaches of his Charter right to counsel (sections 8, 9, and 10(b)).

The Court of Appeal dismissed the appeal, upholding the trial judge's finding of reasonable grounds for arrest and the lawfulness of the searches.

While the Court found an additional breach of the appellant's right to counsel due to a one-hour delay in facilitating access, it concluded that, applying the Grant test, the evidence should not be excluded under section 24(2) of the Charter, given the seriousness of the crime and the minimal impact of the breach on the appellant's protected interests.

The appellant, Danny Correa, appealed his convictions for attempted sexual assault and possession of a weapon for a dangerous purpose, as well as his designation as a dangerous offender.

The Court of Appeal for Ontario dismissed the appeal, finding that the trial judge did not err in instructing the jury on the intent required for attempted sexual assault, nor were the verdicts unreasonable or inconsistent.

The court also upheld the dangerous offender designation, finding no material misapprehension of evidence or error in accepting the psychiatric risk assessment, despite a six-year gap in the appellant's offence history.

The appellant, convicted of importing cocaine, sought leave to appeal her sentence of six years and three months.

She argued the trial judge erred by failing to consider collateral consequences related to her children's care by the Catholic Children's Aid Society and the impact of systemic discrimination and racism.

The Court of Appeal granted leave but dismissed the appeal, finding the trial judge adequately considered family circumstances as a mitigating factor and that systemic factors, while relevant to responsibility, do not diminish the gravity of the offence.

The sentence was at the low end of the established range for such offences.

MBM Intellectual Property Law LLP, the successful party in an appeal, sought substantial indemnity costs of over $76,000 or partial indemnity costs of over $51,000 from Kevin Drizen.

The Court of Appeal for Ontario denied substantial indemnity costs, finding MBM's justification focused on lower court conduct and the amount sought was disproportionate to the $50,000 at issue in the underlying dispute and the non-complex appeal issue.

The court fixed costs at $7,500, inclusive of HST and disbursements, payable by Mr. Drizen to MBM.

The appellant, Miriam Young, appealed the application judge's interpretation of the residue clause in the last will and testament of Saul Jonas, specifically the meaning of 'in equal shares per stirpes' for the 60% portion of the estate designated for grandchildren and great-grandchildren.

The appellant argued for an interpretation that would benefit the children more, while the Office of the Children's Lawyer (OCL) advocated for an equal division among the grandchildren.

The Court of Appeal applied the 'armchair rule' and upheld the application judge's decision, finding no palpable and overriding error in her assessment of the testator's intention to ensure equal distribution within the beneficiary classes.

The appeal regarding the will's interpretation was dismissed.

The appellant also sought leave to appeal a costs order, which was granted, but that appeal was also dismissed, with a portion of the costs payable personally by the appellant.

The appellant, Kevin Bedard-Morin, appealed his 22-month sentence for receiving material benefits from the commission of an offence under the Criminal Code.

He argued the sentence was excessive, citing an expectation of time served due to pre-sentence custody, the non-violent nature of his offence compared to cited cases, and insufficient credit for harsh COVID-19 conditions during pre-sentence custody.

The Court of Appeal dismissed the appeal, affirming that pre-sentence custody attributed to an unrelated Quebec offence could not be double-counted for the Ontario offence.

The court found the sentencing judge properly considered aggravating factors, including exploitation of three complainants over months, significant material benefit, and the appellant's criminal record, and appropriately weighed mitigating factors like the guilty plea and COVID-19 conditions.