Kathryn N.M. van Rensburg

This is a costs endorsement following an appeal to the Court of Appeal for Ontario in a child protection matter.

The appellant, a foster-to-adopt mother, sought costs against the respondent child protection agency (Valoris Pour Enfants et Adultes de Prescott-Russell) for both the appeal before the Court of Appeal and the prior appeal before the Divisional Court.

The appellant argued that exceptional circumstances existed because the agency had acted unfairly in appealing the motion judge's decision granting her status in the proceedings.

The Court of Appeal declined to award costs, finding that the agency's decision to appeal did not warrant a costs award, particularly as the court's decision provided guidance on relevant factors for adding parties in child protection proceedings.

The appellant appealed from a motion judge's order dismissing his motion to set aside a default judgment dated July 4, 2016.

The appellant had been served with a statement of claim alleging he had provided an oral personal guarantee for $50,000 on a loan agreement.

The appellant failed to defend the action and was noted in default, resulting in a default judgment being entered.

The motion judge dismissed the appellant's motion to set aside the default judgment, finding that the appellant had acknowledged his debt through communications with the respondent and had deliberately delayed responding to the claim.

The Court of Appeal upheld the motion judge's decision, finding no overriding or palpable error or error of law in the exercise of discretion.

The appellants successfully appealed orders from the Superior Court of Justice that had reinstated a default judgment and permitted the sale of certain property.

The appeal was allowed because the respondent failed to make full and fair disclosure of material facts concerning the appellants' alleged default and participation in the action when attending before the court without notice to the appellants.

The appellants were self-represented throughout most of the proceedings and only retained counsel a few months before the appeal was argued.

The court awarded costs to the appellants on a partial indemnity basis, finding their claim for substantial or full indemnity costs to have no basis and their partial indemnity claim to be excessive and disproportionate.

The appellant appealed his convictions for firearm and drug-related offences and his sentence of four and a half years custody.

He claimed ineffective assistance of counsel, primarily arguing that trial counsel failed to seek exclusion of evidence obtained during an allegedly unlawful detention and search.

The Court of Appeal found that trial counsel's decision not to pursue a Charter application was reasonable and that no miscarriage of justice occurred.

The court also rejected the appellant's other claims of ineffective assistance regarding disclosure, witness testimony, and counsel's absence on the first day of trial.

Both the conviction appeal and leave to appeal sentence were dismissed.

A tenant operating a dry cleaning business appealed a summary judgment dismissing his claim for wrongful termination of his commercial lease.

The landlord had terminated the tenancy based on the tenant's failure to complete a government-approved training course in the management of contaminants and wastes, as required by regulation and the lease.

The Court of Appeal found that the landlord failed to comply with the strict notice requirements under the Commercial Tenancies Act by not identifying the specific breach in the termination notice.

The court also found that the tenant had presented uncontradicted evidence that the required course was unavailable and that the Ministry of the Environment had inspected the premises, suggesting the tenant may have satisfied the regulatory requirements through alternative means.

The appeal was allowed, the summary judgment was set aside, and the matter was remitted for assessment of damages.

The appellant appealed his conviction for carrying a concealed weapon (a hunting knife) contrary to s. 90 of the Criminal Code.

The knife was found under the front seat of his pickup truck during a search incident to arrest for an unrelated matter.

The appellant raised three grounds of appeal: that the verdict was unreasonable, that the trial judge failed to adequately warn the jury about circumstantial evidence, and that the trial judge erred in answering a jury question about concealment.

The Court of Appeal dismissed all grounds of appeal, finding that the verdict was reasonable, the jury instructions on circumstantial evidence were adequate, and the trial judge's response to the jury's question on concealment was proper and implicit in the overall jury charge.

The appellant was convicted of firearm-related offences for importing three guns into Canada in her vehicle.

The trial judge found the appellant guilty based on wilful blindness, concluding she deliberately chose not to inquire about the contents of her vehicle despite having her suspicion aroused.

The appellant appealed both conviction and sentence.

The Court of Appeal upheld the conviction, finding no error in the trial judge's application of the wilful blindness doctrine.

The court clarified that wilful blindness does not require knowledge of the specific nature of the contraband (guns versus other criminal items), only that the accused's suspicion was aroused and she deliberately chose not to inquire.

The sentence appeal was also dismissed, with the court finding no basis to interfere with the two-year less a day custodial sentence imposed.

The appellant appealed his convictions for robbery with a firearm and possession of a restricted firearm.

He raised two grounds of appeal: (1) that the trial judge erred in finding his statement voluntary, arguing police threatened to charge his girlfriend with possession of the gun in exchange for his cooperation; and (2) that the trial judge erred in refusing to exclude evidence resulting from a section 8 Charter breach under section 24(2) of the Charter.

The Court of Appeal upheld the trial judge's credibility findings regarding the voluntariness of the statement and found no error in the trial judge's balanced application of the three-prong test from R. v. Grant in determining admissibility of the evidence.

The conviction appeal was dismissed.

The appellant appealed his conviction for sexual assault and touching a minor for sexual purpose, as well as the sentence imposed.

The appellant argued that the trial judge erred in findings of fact and credibility and should have acquitted him.

The Court of Appeal found no error in the trial judge's approach to assessing witness evidence and credibility.

The appellant did not pursue the sentence appeal in oral argument.

The appeal was dismissed.

The appellant appealed both conviction and sentence for drug importation.

The appellant challenged the jury selection process as unrepresentative, argued he was prejudiced by the jury's lack of knowledge of his custodial status during trial, and contended the police failed to properly investigate matters raised in his defence.

The Court of Appeal rejected all grounds of appeal regarding conviction.

The appellant also argued his 13-year sentence (less 2 years 3 months pre-sentence custody credit) for importing 1.98 kg of street-ready heroin was unduly harsh.

The court found no error in the trial judge's sentencing determination and dismissed the sentence appeal.

The Attorney General of Canada appealed a rectification order granted by the Superior Court of Justice that allowed Slate Management Corporation to restructure a single-step amalgamation of three subsidiaries into a two-step amalgamation to obtain a tax bump under the Income Tax Act.

The Court of Appeal found the appeal moot based on the principle established in Norcan Oils Ltd. v. Fogler, as the plan of arrangement had been implemented and third parties had relied on the financial consequences of the rectification order.

The court declined to exercise its discretion to hear the moot appeal and quashed it, awarding costs to Slate.

The appellant appealed her conviction for arson and her sentence.

On the conviction appeal, the sole issue was ineffective assistance of trial counsel.

The appellant alleged that she did not receive Crown disclosure, that her lawyer did not communicate with her, did not advance her defence, and promised acquittal.

The Court of Appeal found that the record did not support these assertions and, in some instances, directly contradicted them.

The appellant had received electronic versions of transcripts and voice recordings, and there was voluminous communication between the appellant and counsel regarding trial strategy and witnesses.

Counsel had clearly advanced the defence that the appellant wished to advance: that she had not set the fires and that her admissions in recorded conversations were play-acting.

The Court found no deficiency in trial counsel's representation and no miscarriage of justice.

The conviction appeal was dismissed.

Leave to appeal the sentence was granted but the sentence appeal was also dismissed, with the Court finding no basis to interfere with the restitution order.

Two appellants, Jemaine Phillips and Drai O'Hara-Salmon, appealed their convictions for first-degree murder in connection with the shooting death of Said Hadbai in a parking lot across from Jack's Bar in London, Ontario on December 27, 2011.

Phillips, who fired the fatal shot, was convicted as the principal offender.

O'Hara-Salmon was convicted as a party to the offence under sections 21(1)(b), 21(1)(c), and 21(2) of the Criminal Code.

Phillips raised multiple grounds of appeal concerning the trial judge's instructions on self-defence, the exclusion of expert psychiatric evidence, the failure to leave provocation with the jury, and various other charging issues.

O'Hara-Salmon raised grounds concerning the adequacy of instructions on party liability, the failure to give a W.(D.) instruction, and the reasonableness of the verdict.

The Court of Appeal dismissed both appeals, finding no reversible errors in the trial judge's conduct or instructions.

Appeal from conviction and sentence for conspiracy to import a narcotic.

The appellant was convicted of conspiring to import cocaine from St. Maarten to Montreal.

The appeal raised three grounds: whether the verdict was unreasonable, whether the jury charge was inadequate, and whether the trial judge erred in dismissing a Charter s. 11(b) application regarding delay.

The court dismissed all grounds of appeal, finding the evidence supported the conviction, the jury instructions were adequate, and the delay was justified under both the Jordan framework and transitional exceptional circumstances.

The sentence of nine years was upheld as fit.

The appellants appealed a motion judge's decision dismissing their action as barred by the two-year limitation period under the Limitations Act, 2002.

The appellants had obtained a trial judgment against e3m Investments Inc. more than two years prior, but commenced an action against the respondent (e3m's president and sole director) within two years of e3m's appeal dismissal and subsequent bankruptcy.

The appellants obtained an assignment of the trustee's cause of action under section 38 of the Bankruptcy and Insolvency Act.

The Court of Appeal found that the limitation issue involved mixed questions of fact and law that could not be properly determined on a Rule 21.01(1)(a) motion with only pleadings on the record, and allowed the appeal.

Crown's appeal of the acquittal of the respondent on charges of conspiracy to import a narcotic and importing a controlled substance (cocaine).

The respondent was jointly tried with a co-accused who was convicted of the conspiracy count.

The Crown raised two issues on appeal: whether the trial judge wrongly excluded evidence tying the respondent to the conspiracy, and whether the trial judge erred by imposing a reasonable doubt standard at step two of the Carter test for conspiracy membership.

The appellate court dismissed the Crown's appeal, finding no error in the trial judge's evidentiary rulings or jury instructions.

The appellants appealed an order from the Superior Court of Justice finding that a transformer easement had expired.

The sole issue was whether the easement continued to be required for an approach lighting system for runway 30 at the Windsor airport.

The Court of Appeal upheld the lower court's decision, finding that the appellants failed to provide evidence supporting their position that the easement remained necessary.

The appellants' own witness testimony, combined with evidence that the easement had not been required since 1965, long-term plans for runway 30 that did not contemplate the lighting system or transformer, and communications from Nav Canada all supported the finding that the easement had expired.

The appellant appealed a motion judge's decision dismissing her action against the York Children's Aid Society arising from child protection proceedings involving her daughter.

The appellant claimed she suffered significant losses and damages and sought to continue the action with witness testimony at trial.

The Court of Appeal upheld the motion judge's dismissal, finding no error in his analysis that certain claims disclosed no cause of action and that others lacked evidentiary support.

The appeal was dismissed without costs.

Crown appeal from the acquittal of Aasif Patel on charges of first degree murder and second degree murder in connection with the fatal shooting of Lorenzo Martinez.

The Crown argued that the trial judge erred in refusing to instruct the jury on party liability under section 21(2) of the Criminal Code (common unlawful purpose) and in his instructions regarding section 21(1) liability (aiding and abetting).

The Court of Appeal dismissed the appeal, finding that the Crown had materially changed its legal theory between trial and appeal, which would be unfair to the respondent and offend double jeopardy principles.

The court also found no error in the trial judge's instructions on causation or on the relationship between the liability of the principal and the party.

On appeal from a summary judgment decision, the husband challenged the characterization of over $1.3 million in investments derived from his parents' advances during a 37-year marriage.

The central issue was whether the funds constituted gifts to the parties or were held in resulting trust for the parents or as loans.

The motion judge found the presumption of resulting trust had been rebutted and characterized the advances as gifts to both parties.

The husband also challenged the suitability of summary judgment, the striking of portions of his affidavit, the treatment of dissipated assets, and the charge placed on the matrimonial home.

The Court of Appeal upheld the motion judge's decision on all grounds.