Kathryn N.M. van Rensburg

The appellant appealed a jury verdict awarding the respondent approximately $700,000 in damages for personal injuries arising from a motor vehicle accident.

The main issue at trial was whether the respondent's post-traumatic stress disorder was caused by the collision or by an earlier sexual assault.

The trial judge excluded surveillance video evidence and Facebook posts that the defence sought to introduce as substantive evidence of the respondent's functionality.

The Court of Appeal found that the trial judge erred in excluding the surveillance evidence by dealing with it as a whole rather than taking a discrete approach to each video excerpt, and by concluding that the evidence could only be admissible if it directly contradicted the respondent's testimony.

However, the Court found that even if the surveillance evidence were admissible, it was not so significant that it would have affected the jury's verdict on damages.

The appeal was dismissed.

The appellant was convicted of kidnapping his friend after a judge and jury trial.

He was sentenced to seven years imprisonment.

On appeal, he challenged the conviction on four grounds: (1) the trial judge erred in her instructions on the actus reus of aiding and abetting by not emphasizing the need for actual assistance when reviewing the evidence; (2) the trial judge erred in failing to leave with the jury the included offence of "attempt to aid" a kidnapping; (3) the trial judge erred in not linking her W.(D.) instruction to the defence of duress; and (4) the trial judge erred in failing to correct Crown counsel's improper reference to hearsay evidence in closing arguments.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant was convicted of three counts of possession of drugs for the purpose of trafficking (cocaine, cannabis resin, and oxycodone) and sentenced to ten months custody less three days' presentence custody.

He appealed both conviction and sentence.

The conviction appeal was dismissed.

The Court of Appeal found that the arresting officer had objectively reasonable grounds for arrest based on reliable confidential informant information corroborated by police surveillance, that the trial judge did not apply uneven scrutiny to Crown and defence evidence, and that the trial judge's findings on the trafficking purpose were supported by the totality of the evidence.

The sentence appeal was allowed based on fresh evidence of a serious medical issue, and the custodial portion was reduced to time served (44 days with credit for pre-sentence custody), with the victim surcharge set aside.

The appellant was convicted of possession of a controlled substance for the purpose of trafficking following a vehicle stop and search.

The trial judge dismissed the appellant's Charter application challenging the legality of the arrest and search.

On appeal, the Court of Appeal found that the trial judge erred in law by treating the existence of statutory authority to arrest for driving with a suspended licence as dispositive, without determining whether the officers subjectively formed an intention to arrest for the road safety purpose underlying that authority.

The court held that the trial judge failed to consider whether the traffic stop was a pretext to further a drug investigation.

The conviction was set aside and a new trial was ordered.

The appellant was convicted of sexual assault and threatening death following a trial by judge alone and sentenced to two years in custody, less time served.

On appeal, the court found that a breach of solicitor-client privilege occurred during trial when the trial judge questioned defence counsel about why certain matters were not put to the complainant during cross-examination.

Defence counsel, in breach of privilege, confirmed that the appellant's testimony differed from what counsel expected.

The trial judge then used this privileged information in his reasons for judgment to draw an adverse inference against the appellant's credibility.

Although the trial judge stated the inference was not determinative, the Court of Appeal found that the use of privileged information created an appearance of unfairness constituting a miscarriage of justice, regardless of whether it was essential to the conviction.

The appellant, Nissa Corporation, inherited a solar power generation lease when it purchased two properties in Napanee from the Business Development Bank of Canada.

The respondent tenant sought declarations that the lease was valid and binding, and that it had the right to connect to the electrical utility system via a transformer located on an adjacent property (60A) and to install inverters in the electrical room of the leased building (61A).

The application judge granted both declarations.

On appeal, the court considered two issues: (1) whether the tenant had the right to connect to the transformer at the adjacent property, and (2) whether the tenant could install inverters inside the building rather than on the roof.

The court allowed the appeal in part, finding that the lease did not extend to the adjacent property but that the tenant could install inverters inside the building.

The appellants purchased two parcels of land in an unorganized township in the District of Parry Sound and sought a declaration that Trussler Road, which crossed respondents' private property, was a public highway.

The appellants claimed the road qualified as a public highway under section 261 of the Municipal Act based on colonization road status, statute labour, or dedication and acceptance.

The motion judge dismissed the claims on all grounds.

The Court of Appeal upheld the dismissal, finding no reversible error in the motion judge's conclusion that the appellants failed to establish dedication and acceptance on the evidence.

The court found the use of the road was consistent with neighbourly tolerance rather than public dedication.

The appellant sought a declaration that he was the legal owner by adverse possession of land formerly part of a railway corridor contiguous to his backyard, which was owned by the City of Niagara Falls.

The application judge denied the application, finding that the appellant failed to prove the third element of the adverse possession test: that the City had been effectively excluded from possession of the disputed land in the ten years immediately prior to July 19, 1999.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion and dismissing the appeal with costs awarded to the City.

The appellant abandoned the appeal, leaving only the respondent's claim for costs of the appeal to be determined.

The court found that the appellant's expenditures on legal advice were reasonably incurred and declined to award costs on a substantial indemnity basis.

Following the approach of the judge below, the court fixed the respondent's costs at $1,500.00 all-inclusive, representing 70 percent of legal fees on a partial indemnity basis and 100 percent of disbursements.

No order was made as to costs of the attendance on the hearing date.

The appellant sought a motion to review a decision of the motion judge.

The motion judge had heard both the respondent's motion to stay proceedings and the appellant's motion for an extension of time simultaneously.

The Court of Appeal found no reversible error in the motion judge's discretionary order, as the motion judge had reasonably connected his decision on the respondent's motion to his disposition of the appellant's motion.

The motion to review was dismissed with costs fixed at $2,500.00 all-inclusive.

The appellants appealed a motion judge's decision that the respondent Pezzack Financial Services Inc. was entitled to proceeds of a mortgage action settlement held in escrow pursuant to a Notice of Garnishment.

The appellants claimed that the garnishee held the mortgage in trust for them, either as an express trust or a resulting trust.

The Court of Appeal upheld the motion judge's findings that the claimed express trust was a sham and that the circumstances did not support a resulting trust.

The appeal was dismissed with costs fixed at $10,000.00 all-inclusive.

The appellant was convicted of sexual interference, invitation to sexual touching, and sexual assault involving his stepdaughter between the ages of 6 and 11.

On appeal, the appellant raised two grounds: first, that the trial judge erred in relying on the consistency of the complainant's allegations to address credibility concerns; and second, that the trial judge applied uneven scrutiny to the evidence.

The Court of Appeal dismissed both grounds, finding that the trial judge properly considered the complainant's consistent reporting to multiple authorities over a three-year period as context for assessing the defence's attack on reliability, and that the trial judge's credibility findings were based on corroborating evidence and were open to him on the record.

The appellant sought leave to appeal his sentence on the basis that he should receive a 25-day reduction to account for approximately two months during which he could have been earning remission toward parole eligibility had his sentencing proceeded as originally scheduled in July 2018 rather than September 2018.

The delay was caused by the Crown's personal unavailability.

The Crown opposed the reduction, citing section 719(3) of the Criminal Code, which prohibits awarding credit for time served for a different offence.

The Court of Appeal distinguished prior case law and found that the appellant was not seeking to double-count time or apply time served on one offence to another, but rather seeking relief from an unusual unfairness caused by Crown scheduling difficulties.

The court exercised its discretion to remedy this unfairness and granted the reduction.

The appellant, found not criminally responsible on account of mental disorder for sexual assault and other offences, appealed the Ontario Review Board's disposition ordering his detention pursuant to a hybrid order allowing transition from secure to general forensic unit with community living privileges.

The appellant had been on conditional discharge but was readmitted to hospital after missing his monthly antipsychotic medication injection.

Following rapid decompensation and aggressive behaviour requiring seclusion, the Board concluded a conditional discharge was inappropriate and ordered the hybrid detention.

The Court of Appeal upheld the Board's decision as reasonable, finding the appellant was not in a position to be in the community at the time of the hearing.

Canada Post Corporation appealed an arbitrator's decision that reinstated Christopher Seivright, a temporary postal worker, after his dismissal for failing to demonstrate reasonable availability in accepting work assignments.

The arbitrator rejected Canada Post's use of a peer average acceptance rate (37.8% versus 49.9% peer average) as the sole basis for termination, finding it arbitrary and unreasonable.

The arbitrator considered contextual factors including the 24/7 operation of the York Distribution Centre, high parcel volume, the grievor's seniority, and the actual number of shifts worked (57 shifts, placing him in the top 25-30% of temporary employees).

The Divisional Court upheld the arbitrator's decision as reasonable despite departing from prior arbitral jurisprudence on certain points.

The Court of Appeal dismissed the appeal, finding no binding arbitral precedent for mechanical application of acceptance rate standards and confirming that reasonable availability must be assessed on a case-by-case basis considering relevant workplace circumstances.

The appellant appealed his conviction for party liability in the use of a firearm during a drive-by shooting.

The trial judge found that the appellant, who was driving the vehicle, knew of the shooting moments before it occurred and assisted by positioning his car alongside the victim's vehicle before driving away evasively.

The Court of Appeal upheld the conviction, finding that the trial judge's findings were amply supported by evidence and sufficient to establish party liability under section 21(1) of the Criminal Code.

The appellant's argument that he lacked the requisite mens rea was rejected as an unreasonable verdict argument.

The appellant sought leave to appeal his sentence for robbery, use of an imitation firearm, and breaking and entering in the context of a home invasion.

He received seven and a half years: four and a half years for robbery, four and a half years concurrent for break and enter, and three years consecutive for use of an imitation firearm, which was also consecutive to four remaining years from a prior bank robbery conviction.

The appellant raised four grounds of appeal: that sentences should be concurrent, that mitigating factors were not credited, that the parity principle was not applied with co-accused, and a constitutional challenge that was not pursued.

The court found no error in the trial judge's reasoning or sentencing.

The appellant sought an adjournment to retain counsel but the proposed counsel advised that he had not been retained and did not expect to be.

Duty counsel advised the court that he was abandoning the appeal.

The court found no basis for a further adjournment and dismissed the appeal as abandoned.

The appellant appealed his sentence of three years imposed for robbery and dangerous driving, arguing that the trial judge should have imposed concurrent rather than consecutive sentences.

The Court of Appeal found no error in the trial judge's approach, which balanced denunciation and deterrence with rehabilitation prospects.

The court dismissed the appeal but set aside the $400 victim fine surcharge.

The moving parties sought a stay of a Court of Appeal order pending their application for leave to appeal to the Supreme Court of Canada.

The underlying dispute concerned whether estate files related to the estates of Bernard Sherman and Honey Sherman should remain sealed.

The application judge had ordered the files sealed for two years to protect privacy and safety interests.

The Court of Appeal reversed this order, finding that privacy interests were not properly considered at the first stage of the Sierra Club test and that any risk of harm was speculative.

The motion judge granted the stay, finding that the moving parties had met the test under section 65.1(2) of the Supreme Court Act and that all three factors for a stay were satisfied: a serious question to be determined, irreparable harm if the stay were refused, and a balance of convenience favouring the stay.