Kathryn N.M. van Rensburg

The appellant appealed a judgment of the Superior Court of Justice determining that fencing and a retaining wall along Greenfield Avenue in Ottawa constituted "Shared Property" under a Co-Tenancy Agreement dated December 15, 1998, governing a townhouse development known as Kings Landing.

The Court of Appeal upheld the lower court's contractual interpretation, finding no palpable and overriding error and no extricable question of law.

The application judge had correctly articulated and applied the principles of contractual interpretation and read the contract as a whole.

The appeal was dismissed with costs fixed at $20,500 including HST and disbursements.

The appellant appealed a motion judge's order declaring a Russian divorce invalid.

The parties were Russian citizens and permanent residents of Canada who separated in Canada in 2015.

The appellant obtained a divorce in Russia in 2016 without properly serving the respondent, who was living in Canada.

The motion judge declared the Russian divorce invalid based on lack of notice.

The appellant argued the motion judge erred by not first determining whether the parties had a real and substantial connection to Russia.

The Court of Appeal dismissed the appeal, holding that the motion judge properly focused on the denial of natural justice (lack of notice) and was not required to analyze the real and substantial connection issue first.

The appellant was convicted of first degree murder in the death of George Washington Burnett.

The appellant appealed on the grounds that the trial judge erred in his instructions on the elements of second degree and first degree murder, and in his instructions regarding after-the-fact conduct evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge's instructions on planning and deliberation were properly tailored to the live issues at trial, that the after-the-fact conduct evidence was admissible and relevant to planning and deliberation, and that the jury was adequately instructed on the limited use of such evidence.

The Monitor of a CCAA-protected company appealed a motion judge's decision dismissing its motion to disallow a creditor's claim secured by a guarantee.

The creditor, Speedy Electrical Contractors Ltd., had provided a personal loan and performed electrical work for Urbancorp entities.

When Speedy threatened legal proceedings and held a construction lien, the parties entered into a debt extension agreement whereby Speedy agreed to discharge its lien and extend the loan in exchange for a secured guarantee from King Residential Inc. (a related Urbancorp entity) over condominium units.

The Monitor argued the guarantee was a transfer at undervalue under section 96 of the Bankruptcy and Insolvency Act and a fraudulent conveyance under the Fraudulent Conveyances Act.

The motion judge found Speedy and KRI were dealing at arm's length and that fraudulent intent was not established.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings.

The moving party sought to reopen a Court of Appeal decision disposing of appeals concerning guardianship of an incapacitated person.

The moving party alleged that new information had been deliberately concealed, consisting of quarterly reports revealing a $43,000 payment to Section 3 Counsel for appeal work and a $442,000 transfer between accounts.

The moving party contended these payments evidenced an improper litigation agreement and breach of fiduciary duty.

The court dismissed the motion under Rule 2.1.02 as frivolous, vexatious, and an abuse of process, finding the information was not genuinely new and could not have affected the original decision.

AgriMarine Holdings Inc. and AgriMarine Industries Inc. appealed a decision dismissing their application for a declaration that Akvatech AS was in breach of contract and not the holder of a license to fish-rearing technology.

The parties had entered into a Letter Agreement dated November 20, 2012, whereby Akvatech would acquire ownership and licensing rights to the technology for certain territories in exchange for a $200,000 pre-payment.

The transaction was not completed by the target closing date, and the parties terminated the agreement by mutual conduct.

Akvatech demanded repayment of the pre-payment amount, issued a default notice when not repaid, and exercised its right under the agreement to obtain a perpetual, irrevocable, exclusive license to the technology in the Northern Europe Territory.

The application judge found neither party was in breach, the agreement had been terminated by mutual consent, and Akvatech was entitled to the license.

The appellants argued the application judge erred in permitting Akvatech to take advantage of its own breach, that there was no default by AgriMarine, and that the license was unenforceable due to unlimited duration and no royalty provisions.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding errors of fact or reversible errors in contract interpretation.

Four accused were convicted of drug trafficking offences committed for the benefit of a criminal organization (the Five Point Generals), conspiracy to traffic controlled substances, and firearms offences following a three-month jury trial based largely on intercepted communications.

The appellants challenged their convictions on five grounds: jury selection procedures, cross-examination limitations of the Crown's expert witness, exclusion of defence expert evidence, admission of extrinsic misconduct evidence, and alleged imbalance in the jury charge.

They also appealed their sentences, primarily challenging the credit awarded for pre-sentence custody.

The Court of Appeal dismissed all conviction appeals and three of four sentence appeals, allowing only Shane Evans' sentence appeal based on inadequate credit for pre-sentence custody.

The appellant, a small jewelry business, appealed the dismissal of its action against CIBC following a summary judgment motion.

The appellant claimed that Advantex and CIBC misrepresented a marketing agreement entered into in June 2012, whereby the appellant agreed to pay 14% of sales made through CIBC credit card customers.

The appellant alleged it discovered the misrepresentation in December 2015 when it noticed payment irregularities.

The motion judge found the claim was statute-barred under the Limitations Act, 2002, as it was discoverable no later than December 2012.

The Court of Appeal upheld the dismissal on the merits but reduced the costs award from $50,000 to $25,000, finding the motion judge failed to apply the principle of proportionality in a simplified procedure case.

The Attorney General of Canada sought an adjournment of a judicial review application regarding a surrender order to Romania dated March 4, 2019.

The applicant had been in custody in Canada since October 31, 2016, and was subject to a three-year sentence in Romania with credit for time served.

The court granted the adjournment to permit the Minister of Justice to reconsider the surrender decision in light of alleged violations of the Extradition Act, directing reconsideration to occur as soon as possible.

The appellants appealed the dismissal of their application in contested estate proceedings challenging the validity of powers of attorney executed by their mother in 2013.

The appellants sought to invalidate the 2013 powers of attorney and reinstate 1995 powers of attorney.

The central issue was whether the testator had the requisite capacity to execute the 2013 powers of attorney.

The application judge found that the appellants failed to rebut the presumption of capacity with clear evidence on a balance of probabilities.

The Court of Appeal upheld the dismissal, finding no error in the application judge's assessment of the evidence or exercise of discretion.

The appellants appealed a trial judgment finding them liable for a fuel oil spill at the respondents' home.

The trial judge found that the appellants negligently failed to identify that the respondents' fuel oil tank, which was labelled for indoor use, was installed outdoors, and failed to tag it as non-compliant.

The appellants argued the trial judge erred by applying the 'material contribution' test for causation instead of the 'but for' test.

The Court of Appeal dismissed the appeal, holding that while the trial judge articulated the wrong test, she effectively applied the 'but for' test by finding the spill would not have occurred if the appellants had fulfilled their regulatory obligations.

The Court also upheld the trial judge's apportionment of liability, finding of contributory negligence, and damages assessment.

An appeal from an Ontario Review Board disposition granting a conditional discharge to an NCR accused.

The appellant sought an absolute discharge, arguing he no longer posed a significant threat to public safety.

The Board found the appellant continued to pose a significant threat and imposed conditions including psychiatric medication compliance, monthly hospital reporting, and substance abstinence.

The Court of Appeal found the Board applied the wrong legal test, conflating the possibility of decompensation with a positive finding of significant threat.

However, fresh evidence of subsequent concerning behaviour (drug use, medication non-compliance, renewed focus on the victim) warranted remission to the Board for reassessment under the correct legal standard.

The Crown appealed the respondent's sentence for sexual interference, arguing it was demonstrably unfit.

The respondent was convicted of sexual interference and sexual assault (conditionally stayed) following a jury trial.

The offences involved sexual contact with a 15-year-old complainant who was severely intoxicated.

The trial judge imposed a sentence of six months' imprisonment, reduced to 90 days intermittent upon credit for pre-sentence custody.

The Court of Appeal found the sentence too lenient and substituted an 18-month sentence, but stayed execution of the remaining custodial portion based on the respondent's rehabilitation efforts and time served in the community without reoffence.

The appellant appealed an order dismissing her Superior Court action under Rule 2.1 of the Rules of Civil Procedure.

The appellant's original Small Claims Court action had been dismissed after a seven-day trial.

She sought to appeal to the Divisional Court but was out of time, and her motion for an extension of time was refused.

The Court of Appeal found that the new Superior Court action was an attempt to relitigate the same issues previously determined and that the respondent had standing to bring the Rule 2.1 motion.

The appeal was dismissed with costs.

The appellants sought review of a chambers order dismissing their request to file a 60-page factum in an appeal.

The Court of Appeal upheld the chambers judge's decision, finding no error in requiring compliance with the Rules of Civil Procedure, which limit factums to 30 pages except in exceptional circumstances.

The court found no exceptional circumstances present and determined the appellants could adequately address the relevant issues within the 30-page limit, noting their statement of facts was not sufficiently concise.

The appellant appealed an order of the Superior Court of Justice dismissing his action against the respondent under Rule 2.1.

The Court of Appeal found that the statement of claim disclosed no cause of action against the respondent and was plainly frivolous and an abuse of process on its face.

The court upheld the dismissal, finding no error in the Superior Court justice's decision to dismiss the claim without inviting written submissions from the appellant.

The court noted that even if written submissions had been provided, based on the appellant's factum and oral argument, there would be no prospect of a different outcome.

The Registrar of Alcohol, Gaming and Racing appealed from a Superior Court declaration that the GotSkill gaming system is not a game as defined under s. 197(1) of the Criminal Code.

The application judge had concluded that GotSkill was not a game of mixed chance and skill because a sufficiently skilled player could ultimately beat the machine.

The Court of Appeal allowed the appeal, holding that GotSkill is a game of mixed chance and skill.

The court clarified that under the Criminal Code, any game containing both elements of chance and skill—regardless of which predominates—falls within the definition of a game.

The presence of a systematic resort to chance when the game is played multiple times, combined with the skill element required in the game task, was sufficient to classify GotSkill as a game of mixed chance and skill.

The appellant developer appealed two summary judgments ordering the return of deposits paid for commercial and residential condominium units in a development.

The respondents had sought to rescind the purchase agreements based on material changes to the development disclosed in revised disclosure statements.

After the developer's financial difficulties led to receivership, the receiver conveyed the units to a third party, making performance impossible.

The motion judge found the agreements were terminated through no fault of the purchasers and ordered return of deposits with interest.

The appellate court upheld both judgments, finding the purchasers had not breached the agreements and were entitled to relief under the contractual termination provisions.

The appellant sought to set aside an order enforcing a settlement agreement.

The appellant was a fully informed participant in the settlement, acting on legal advice, and knowingly entered into the settlement structured in the manner challenged on appeal.

The Court of Appeal found no illegality or impropriety in the enforcement of the settlement and upheld the motion judge's decision to enforce it.

The court also upheld the costs award made by the motion judge.

Judgment creditors of a bankrupt company obtained an assignment of the company's claim against its former director for breach of fiduciary duties and failure to supervise.

The creditors commenced an action against the director more than two years after the company's liability was established by judgment.

The central issue was whether the action was statute-barred under the Limitations Act, 2002.

The court held that while the creditors lacked capacity to sue in the company's name until after bankruptcy, the company itself had discovered the claim when its shareholders received the trial judgment establishing the director's wrongdoing.

The limitation period ran from that earlier date, making the action time-barred.