Kathryn N.M. van Rensburg

This is a costs endorsement following a successful appeal.

The appellant's appeal was allowed, and costs of the appeal were awarded to the appellant.

The parties subsequently reached an agreement on the costs of the proceedings in the Superior Court, fixing them at $30,000 all inclusive, to be paid by the respondent to the appellant.

The respondent's husband died during a follow-up angiogram as part of a clinical trial.

The respondent sued the principal investigator, Dr. Strauss, for negligence and breach of fiduciary duty.

The jury found breach of standard of care but no causation in negligence.

The trial judge found breach of an ad hoc fiduciary duty and awarded damages, stating causation was removed from the analysis in the fiduciary context.

The Court of Appeal allowed the appeal, holding that the trial judge erred by not examining causation in the fiduciary context.

The Court found no causal link between the alleged fiduciary breach and the loss, relying on the jury's finding on causation in the negligence claim, as the claims were based on substantially the same conduct.

The action was dismissed.

The appellant, 2484234 Ontario Inc., appealed the dismissal of its application for rectification and specific performance of a transfer agreement with the respondent, Hanley Park Developments Inc. The agreement concerned an easement over parts of the respondent's adjacent property for an access road to a proposed subdivision.

The appellant sought to rectify the agreement to include a fifth part of the property, which was essential for the access road and which the respondent knew was necessary but did not include in the formal agreement.

The application judge had dismissed the claim, finding no prior agreement on the fifth part and that the appellant had "unclean hands." The Court of Appeal allowed the appeal, finding that the application judge erred in interpreting the prior agreement, which, based on business efficacy and the duty of honest performance, implied an an obligation to include the necessary fifth part.

The Court also found the "unclean hands" finding was based on a misreading of the agreement.

Rectification was granted, and specific performance was ordered due to the uniqueness of the property.

The commercial tenant made an assignment in bankruptcy and the trustee disclaimed the lease.

The landlord filed a proof of claim for three months' accelerated rent as a preferred claim, and an unsecured claim for the balance of the unexpired term, including unpaid tenant inducements.

The trustee disallowed the unsecured claims.

The Court of Appeal held that under Ontario law, the disclaimer of a commercial lease by a trustee in bankruptcy ends the tenant's obligations, precluding the landlord from claiming damages for the unexpired term.

However, the landlord was entitled to claim the unrecovered balance of its preferred claim for accelerated rent as an unsecured creditor under the Bankruptcy and Insolvency Act.

The Court of Appeal for Ontario issued a costs endorsement following an appeal hearing related to the Companies’ Creditors Arrangement Act (CCAA) proceedings of Urbancorp Cumberland 2 GP Inc. and related entities.

The panel reviewed the costs requests from the appellants and respondents and found the amounts reasonable.

Specific costs were ordered to be paid out of the Estate of the Cumberland Group to the appellants (Toro Aluminum, Speedy Electrical, Dolvin Mechanical) and two respondents (Guy Gissin, Tarion Warranty Corporation).

The Monitor and the Attorney General of Ontario did not seek costs.

This case involves three appeals arising from matrimonial proceedings.

The Court of Appeal addressed the validity of a stay of execution obtained by a third-party creditor (the husband's father) against the matrimonial home, the striking of the husband's pleadings for non-compliance with court orders, and the interpretation of a domestic contract concerning the wife's interest in the matrimonial home and equalization payments.

The court found that the stay of execution was justified under the Courts of Justice Act, despite not meeting the Family Law Act criteria, as the creditor's objective was to defeat the wife's claims.

The decision to strike the husband's pleadings was upheld due to his wilful non-compliance and history of defaults.

The trial judge's interpretation of the domestic contract, granting the wife a one-half interest in the matrimonial home, and the valuation of the husband's debt to his father at zero for equalization purposes were affirmed.

However, the costs award from the lower court was varied to credit the husband for interim payments already made.

The appellants commenced an action in nuisance and negligence against the respondent municipality for property damage allegedly caused by heavy truck traffic vibrations.

The action was commenced after the Ontario Municipal Board declined jurisdiction over the appellants' injurious affection claim.

The motion judge dismissed the civil action as statute-barred under the two-year limitation period.

On appeal, the Court of Appeal upheld the application of the two-year limitation period and the finding that it was not legally appropriate to wait for the OMB decision before commencing the civil action.

However, the Court allowed the appeal in part, finding a genuine issue for trial regarding whether the municipality engaged in ongoing wrongful conduct causing damage within the two years prior to the statement of claim.

The appellant, Global Work & Travel Co. Inc., appealed a motion judge's decision that dismissed its motion to dismiss or stay an action based on lack of jurisdiction simpliciter and forum non conveniens.

The action was brought by the respondents (plaintiffs) following a tragic motor scooter accident in Thailand that resulted in the death of one sister and serious injury to another, who had travelled there through the appellant's "Teach in Thailand" program.

The Court of Appeal upheld the motion judge's finding of a real and substantial connection to Ontario, particularly regarding claims of negligent misrepresentation and negligence committed in Ontario, and affirmed the application of the "good arguable case" test.

The appeal was dismissed.

The appellant insurer appealed a motion judge's decision that it had a duty to defend the respondents under a professional liability insurance policy.

The respondents, an appraiser and his company, were sued for vicarious liability arising from the alleged negligence of another appraiser (Barkley).

The respondents sought coverage under their own insurance contract (Van Huizen contract).

The Court of Appeal found that the motion judge erred by conflating a master policy with individual insurance contracts.

The court clarified that the master policy merely sets out terms, while individual certificates evidence separate contracts.

The Van Huizen insurance contract only covered the professional negligence of the named insured (Van Huizen), not vicarious liability for another appraiser's actions.

Therefore, the appellant had no duty to defend under the Van Huizen contract.

However, the court declined to grant summary judgment to the appellant, noting that the question of coverage under the other appraiser's (Barkley's) insurance contract remained a live issue to be determined.

The appellants appealed a motion judge's order striking out a Superior Court proceeding that sought to appeal Provincial Offences Act (POA) convictions of Murray Brown, which were decided by a Justice of the Peace.

The appellants argued they had standing as the Greenworld Trust, the property owner, and that the Justice of the Peace exceeded jurisdiction.

The Court of Appeal dismissed the appeal, affirming that the Superior Court was the incorrect forum for appealing POA convictions (which should be appealed to the Ontario Court of Justice) and that the Greenworld Trust had no freestanding Charter right to assert in the Superior Court in this context.

The court also found no clear error in the costs award from the motion below.

In a group of six child protection appeals, the appellant J.B. brought a motion to reconstitute the panel, seeking to replace one of the judges due to her involvement in a prior unanimous decision that had reinstated a no-access order against J.B. The appellant argued for a reasonable apprehension of bias.

The Court of Appeal denied the motion, reaffirming the strong presumption of judicial impartiality and the high burden on the party alleging bias.

The court held that a judge's prior ruling against a party on a legal issue in a different case does not create a reasonable apprehension of bias for a new case involving different legal issues, even if the parties are the same.

This appeal concerned the liability of Children's Aid Societies (CAS) and the Ontario government for damages arising from flawed hair follicle drug and alcohol test results from the Motherisk Drug Testing Laboratory (MDTL) used in child protection proceedings.

Family members (parents and siblings) of children apprehended by CASs sued for negligence, negligent investigation/supervision, intentional infliction of mental distress, bad faith, breach of fiduciary duty, misfeasance in public office, and Charter breaches.

The motions judge dismissed these claims, finding that CASs and Ontario did not owe a private law duty of care to parents or family members, as their primary duty is to the child's best interests, creating an untenable conflict of interest.

The Court of Appeal upheld the motions judge's decision, affirming that the CAS's duty is solely to the child, and Ontario's duties are general public duties, not private law duties to individuals in child protection matters or related to laboratory oversight.

The court also rejected claims of bad faith and Charter breaches as being disguised negligence claims, and dismissed claims for breach of fiduciary duty and s. 35(1) of the Constitution Act, 1982, finding these duties are owed to the Indigenous child, not the Indigenous parent.

This appeal concerns the effectiveness of a statutory trust under s. 9(1) of Ontario's Construction Lien Act (CLA) in Companies' Creditors Arrangement Act (CCAA) insolvency proceedings.

Unpaid contractors (appellants) claimed a trust over proceeds from the sale of condominium units by the insolvent developer (Cumberland Group).

The motion judge denied the trust, relying on Re Veltri Metal Products Co., reasoning that the CCAA Monitor's involvement prevented the trust from arising.

The Court of Appeal allowed the appeal, clarifying that a s. 9(1) CLA trust can be effective in CCAA sales processes and is only displaced by federal paramountcy if it conflicts with a specific CCAA priority.

The court distinguished Veltri, stating it did not prevent a s. 9(1) trust when proceeds exceed mortgage debt and expenses, and confirmed the "deemed receipt" rule.

The appellant, Manuel Esquivel-Benitez, appealed his conviction for sexual assault.

The Court of Appeal for Ontario allowed the appeal, set aside the conviction, and ordered a new trial, finding three errors by the trial judge: (1) an R. v. W.(D.) error in assessing credibility by treating it as a contest between the complainant and the appellant, failing to consider reasonable doubt on the evidence as a whole; (2) failure to meaningfully address the complainant's possible motive to fabricate; and (3) improper reliance on the appellant's presence in the courtroom to negatively assess his credibility, suggesting he tailored his evidence.

The appellant appealed a summary judgment that granted judgment on two promissory notes and dismissed its counterclaim.

The Court of Appeal found no error in the motion judge's discretionary decision to refuse leave for a further affidavit, noting it was proffered late and would be unfair.

The court agreed that the evidence did not raise a genuine issue requiring a trial, as the appellant's assertions were unsubstantiated.

The proposed fresh evidence on appeal also failed to meet the admission test.

The appeal was dismissed.

The appellants appealed a summary judgment that found their professional negligence action was not statute-barred by the Limitations Act, 2002.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent neither knew nor ought to have known that its loss was caused by the appellants' acts or omissions.

The appellants sought to set aside a partial summary judgment.

The motion judge had dismissed their r. 37.14(1)(b) motion, finding their defences lacked merit.

The Court of Appeal found the motion judge erred by narrowly focusing on "non est factum" and "equitable set-off" and failing to consider the broader defence regarding the legitimacy of the promissory notes, which was raised in pleadings and affidavits.

The appeal was allowed, the order below and the partial summary judgment were set aside, and the matter was remitted to the Superior Court with specific terms for further proceedings, including document production, amended pleadings, and a potential new summary judgment motion.

The appellants appealed a trial judgment finding them jointly and severally liable for breach of contract for non-payment of a real estate commission.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that a binding contract for commission was formed, that the action was not barred by the Real Estate and Business Brokers Act, 2002, and that the corporate and individual appellants were jointly and severally liable as parties to the contract.

This appeal concerned a property dispute between neighbours over a two-foot wide strip of land.

The application judge had declared a prescriptive easement over a driveway portion and ownership by adverse possession over a backyard portion in favour of the respondents (original applicants).

The Court of Appeal found that the application judge made palpable and overriding errors.

Specifically, the court determined that the alleged prescriptive easement over the driveway was not "reasonably necessary" for the better enjoyment of the dominant tenement, but rather a personal convenience.

For the adverse possession claim, the court found the application judge misapprehended evidence regarding the true owner's exclusion from the backyard portion.

The appeal was allowed, setting aside the lower court's judgment and declaring the appellants' title unencumbered.

The appellant landlord appealed a summary judgment finding it liable for injuries sustained by the respondent motorcyclist, who collided with donkeys that had escaped from the appellant's tenanted property.

The motion judge found the landlord negligent for failing to inspect or repair fences and for permitting an unlocked gate.

On appeal, the Court of Appeal upheld the liability finding, noting the landlord had admitted responsibility for the condition of the fence.

However, the Court found the motion judge erred by granting judgment without determining the issue of contributory negligence.

The appeal was allowed in part, and the issue of contributory negligence was remitted to trial along with damages.