Kathryn N.M. van Rensburg

Crown appeal of an acquittal in an impaired driving causing death case.

The trial judge excluded evidence of the accused's blood alcohol concentration under s. 24(2) of the Canadian Charter of Rights and Freedoms, finding that the accused's s. 8 Charter rights were violated when police obtained urine ethanol results without legal authority by asking hospital staff for the information.

The police then used these illegally obtained results to obtain search warrants for the accused's medical records and blood samples.

The trial judge found the officer asked the nurse for the results rather than merely overhearing them, and that without these results the warrant could not have been issued.

The Court of Appeal upheld the exclusion of evidence, finding the trial judge's reasons were sufficient and conducting a fresh s. 24(2) analysis that confirmed exclusion was appropriate.

The appellants appealed a trial judgment finding that Gabriel Kit Chun Fung knew or was willfully blind to the fact that he was purchasing stolen goods or goods fraudulently obtained by Nadia Minetto, the accounting manager of Wescom Solutions Inc. Between early 2012 and July 2014, Fung purchased approximately $6.2 million in iPhones and iPads from Minetto, who had fraudulently obtained them using Wescom's corporate credit card.

The trial judge divided the transactions into three stages and found Fung was not willfully blind in Stage 1, was willfully blind in Stage 2, and had actual knowledge in Stage 3.

The trial judge awarded damages of $5,094,767.72 plus interest.

The appellants argued the trial judge erred by applying an objective standard to the wilful blindness analysis and by making adverse credibility findings.

The Court of Appeal dismissed the appeal, finding that despite the trial judge's mischaracterization of the wilful blindness standard, the factual findings supported a subjective finding of wilful blindness.

The appellants, former clients of a law firm, appealed an order dismissing their application to assess 33 legal accounts issued between November 2010 and July 2013.

The appellants sought assessment on grounds of dissatisfaction with services and alleged overcharging, claiming special circumstances warranted assessment despite the application being brought more than 12 months after the accounts were issued.

The appellants argued they had only received the accounts in 2016 as a package with a demand letter, and cited their unsophistication, the high amount in dispute, and growing dissatisfaction as additional special circumstances.

The application judge rejected these arguments, finding the appellants' claim of non-receipt lacked credibility and noting they were sophisticated individuals who had previously paid substantial amounts and had not expressed dissatisfaction when services were rendered.

The Court of Appeal upheld the dismissal.

The appellant appealed a Superior Court decision dismissing his application arising from a failed agreement of purchase and sale.

The appellant argued the application judge erred in virtually all of her conclusions.

The Court of Appeal found no merit in any of the appeal grounds.

The court upheld the application judge's findings that the respondent had standing to sue, that the appellant was required to pay the second deposit, that the respondent did not breach the agreement by failing to provide the original survey and clear title, that the respondent's failure to discharge an existing mortgage before the appellant's demand letter did not constitute a breach, and that the appellant's letter constituted anticipatory breach which the respondent properly terminated.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed an order dismissing a motion for production under Rule 30.10(1) of the Rules of Civil Procedure.

The motion judge dismissed the motion without prejudice, allowing it to be brought back later.

Volkswagen, a non-party respondent, moved to quash the appeal, arguing the order was interlocutory and required leave to appeal to the Divisional Court.

The appellants contended the order was final and the appeal lay to the Court of Appeal.

The court held that the order was interlocutory because it did not finally dispose of any issue between the parties and the non-parties, and therefore the appeal was quashed.

The Estate Trustee During Litigation (ETDL) moved to quash an appeal on the grounds that it should have been brought to the Divisional Court under section 28 of the Estates Act.

The respondents argued that the ETDL's appointment was made under Rule 75 of the Rules of Civil Procedure or the court's inherent jurisdiction, not the Estates Act.

The Court of Appeal held that the appointment order was made pursuant to the Estates Act and that the allegation of a constructive trust "touches on" the validity of the will or grant of administration within the meaning of section 28.

The appeal was quashed and the matter was directed to the Divisional Court.

In this matrimonial appeal, the husband challenged a motion judge's order allowing the wife to amend her notice of motion to request a set-off of costs and interest owed by the wife against accumulated spousal support and costs owed by the husband.

The motion judge set off $331,533.54 against $479,130.91, resulting in a net amount of $147,597.37 owing from the husband to the wife.

The husband argued that set-off was not available in law and usurped the jurisdiction of the Family Responsibility Office.

The Court of Appeal dismissed the appeal, finding that the amendment was appropriately allowed under the Family Law Rules and that set-off was available under section 111 of the Courts of Justice Act.

Four patients who received Vitek Proplast Teflon Interpositional implants in their temporomandibular joints in the mid-1980s sued St. Joseph's General Hospital and oral surgeons for injuries caused by the defective implants.

The appellants settled with the oral surgeons and obtained Pierringer Orders.

Three actions were dismissed as statute-barred under the Public Hospitals Act's two-year limitation period.

One action (Hearsey) proceeded to trial.

The trial judge found the hospital 5% at fault, the oral surgeons 20% at fault, the manufacturer 50% at fault, and the distributor 25% at fault, limiting recovery to 5% of damages.

The appellants appealed, challenging the limitation period findings, the rejection of a duty to recall, and the apportionment to non-parties.

The hospital cross-appealed on the limitation period and costs.

The appellant, a real estate company, appealed an order enforcing the respondent's rights under fitness equipment leases and general security agreements.

The respondent had leased fitness equipment to numbered companies operating fitness facilities in premises owned by the appellant.

When the lessees defaulted, the respondent sought to repossess the equipment, but the appellant prevented access and removed equipment to undisclosed locations.

The application judge granted broad declaratory relief and repossession rights.

The Court of Appeal upheld the order, finding no procedural unfairness, that the relief was consistent with the lease terms and PPSA provisions, and that the inventory schedules were necessary to account for equipment the appellant had moved among its properties.

This is a costs decision on appeal from a family law matter.

The appellant (father) sought to stay family law claims pending resolution of a constitutional challenge under s. 35 of the Constitution Act, 1982.

The motion judge struck the amended answer as lacking proper pleading of the constitutional claim.

On appeal, the Court of Appeal allowed the appeal in part, granting leave to amend the answer but refusing to stay the interim support order or the family law claims.

The respondent (mother) was found to be more successful on the appeal.

The court awarded costs to the respondent in the amount of $20,000, inclusive of the costs of a stay motion and all disbursements and HST.

This is a costs endorsement following a successful appeal of a spousal support decision.

The appellant appealed a trial judge's order that reduced and then terminated spousal support payments.

The Court of Appeal allowed the appeal and modified the support order.

The court then addressed costs for the trial below, determining that the appellant was the more successful party and entitled to costs despite the respondent's arguments regarding divided success and the appellant's disclosure failures.

The court awarded costs of $24,000 inclusive of HST and disbursements, enforceable by the Family Responsibility Office as support.

The appellants appealed a trial judgment finding them unjustly enriched by the transfer of two valuable licenses without payment.

The appellants argued that where contract negotiations have failed, courts cannot use unjust enrichment to impose a contract on the parties.

The Court of Appeal rejected this submission, distinguishing the case from Skibinski v. Community Living British Columbia.

The trial judge had found as a fact that the appellants had no reasonable expectation of receiving the licenses for nothing.

The appellants also challenged the damages award, but the Court of Appeal found the trial judge's assessment entitled to deference.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed an order of the Superior Court of Justice dismissing her action under Rule 2.1.01.

The motion judge found that the action met the test for dismissal on its face.

The appellant argued that the respondent, having been noted in default, was precluded from taking further steps without leave.

The Court of Appeal upheld the dismissal, finding that even if leave was required, it would have been granted as this was a clear case for application of Rule 2.1.01.

The appeal was dismissed with no costs.

The appellant appealed a decision granting the respondent a declaration that a lease to a competing fitness facility was void and an injunction preventing the appellant from performing development services.

The core dispute concerned the interpretation of a non-competition agreement and a right of first refusal executed in connection with the sale of fitness facilities.

The application judge found that the non-competition agreement took precedence over the right of first refusal and prevented the lease.

The Court of Appeal allowed the appeal, finding that the application judge erred by relying on negotiations to interpret the contracts and by misunderstanding the factual matrix.

The court held that the plain language of the two agreements, read together, permitted the lease while requiring compliance with the non-competition agreement and the right of first refusal.

The appellants appealed an order from the Superior Court of Justice regarding an assessment of legal costs.

The appellants challenged the admission of business records (dockets and accounts) at the assessment hearing and argued that the assessment officer erred in limiting cross-examination on the clerk's dockets.

The Court of Appeal found that the appellants' counsel had conceded the admissibility of the business records and that the assessment officer properly limited cross-examination to the clerk's entries rather than the work performed by the firm.

The appellants were permitted to challenge the work carried out and the assessment officer substantially discounted the clerk's time.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed a summary judgment decision dismissing their counterclaim as statute-barred.

The counterclaim arose from a dispute between parties involved in waste disposal and transportation businesses from 2011 to early 2014.

The respondents claimed over $350,000 in damages and sought a declaration that the appellants had no beneficial interest in their companies.

The appellants counterclaimed for landscaping services and a declaration of beneficial interest.

The motion judge found the counterclaim was time-barred under the Limitations Act, 2002.

The tolling period under section 11 of the Act, which suspended the limitation period during attempted third-party resolution, ended on February 3, 2014 when the respondents unequivocally terminated the resolution agreement.

The counterclaim was issued March 3, 2016, well beyond the two-year limitation period.

The Court of Appeal upheld the dismissal.

The appellants appealed a summary judgment enforcing personal and corporate guarantees of a loan agreement.

The loan agreement specified interest rates of 2.5% per 30 days pre-maturity and an additional 0.416% per 30 days post-maturity, but lacked an express statement of the yearly equivalent rate.

The appellants argued the Interest Act limited recoverable interest to 5% per annum.

The motion judge found the appellants were bound by a forbearance agreement and a subsequent court-ordered agreement in which the borrower waived any Interest Act defences.

The Court of Appeal upheld the judgment, finding the appellants, as directing minds of the borrower, were bound by the borrower's waiver of Interest Act arguments.

The appellant, a former flight attendant employed by Canadian Airlines International Ltd. before its merger with Air Canada in 2000, appealed the dismissal of his application for recognition of seniority by date of hire as a protected right under the Canadian Charter of Rights and Freedoms.

The appellant challenged the seniority integration decision made through arbitration and confirmed by the Canada Industrial Relations Board, which integrated seniority on the basis of relative position on seniority lists rather than date of hire.

The Court of Appeal upheld the application judge's decision, finding no infringement of the appellant's Charter rights under sections 7 and 15, and dismissed the appeal.

The appellant, a bank in liquidation, appealed a decision of the Superior Court of Justice.

Counsel for the appellant advised the court that he was unable to obtain clear instructions from his client and that the instructions received indicated it was not in the appellant's interest to prosecute the appeal.

The Court of Appeal proceeded on the basis of the written record and found no basis to interfere with the motion judge's decision.

The appeal was dismissed with costs awarded to the respondent.

A self-represented litigant sought to extend the time to bring a motion for leave to appeal an order of the Divisional Court that had upheld a master's decision dismissing his action against a commercial landlord.

The applicant had missed the 15-day deadline by three days but delayed nine months before bringing the motion to extend time.

Two motion judges refused the extension.

The Court of Appeal panel reversed both orders and granted the extension, finding that the justice of the case favoured extension based on the applicant's maintained intention to appeal, absence of prejudice to the respondent, and arguable errors in the courts below regarding jurisdiction and the application of the striking rule.