Kathryn N.M. van Rensburg

The appellant operated a commercial parking lot that was not in compliance with the applicable Zoning By-Law.

The appellant sought to establish that the property constituted a legal non-conforming use by demonstrating continuous operation of a commercial parking lot since the By-Law's passage in 1993.

The application judge found that the lot had been used as an accessory lot rather than a stand-alone commercial parking lot from 1993 through 1996, and therefore fell out of compliance when its use changed.

The application judge granted declaratory relief and an injunction restraining operation of the parking lot.

On appeal, the appellant failed to establish a palpable and overriding error.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed orders of the trial judge finding fraudulent misrepresentation and unconscionability in relation to three shareholders' agreements.

The appellants argued that rescission was only justified for the first agreement based on fraudulent misrepresentation.

The Court of Appeal upheld the trial judge's decision, finding that the fraudulent misrepresentation justified rescission of all three agreements, and alternatively, that the second and third agreements were unconscionable and therefore also subject to rescission.

The court also rejected arguments regarding contract interpretation and procedural fairness.

The appeal was dismissed with costs fixed at $25,000 inclusive of HST and disbursements.

The appellant appealed an order from the Superior Court of Justice dated October 5, 2016.

The Court of Appeal found that the order was one for directions under Rule 75.06 and was not final in nature.

The court determined it lacked jurisdiction to hear the appeal and quashed it accordingly.

Costs were fixed at $5,000, inclusive of HST and disbursements, in favour of the respondent.

Crown appeal against sentence imposed on a long-time cocaine distributor for a criminal organization.

The respondent was sentenced to seven years and 69 days imprisonment following guilty pleas to conspiracy to traffic cocaine, trafficking in cocaine, committing an indictable offence for the benefit of a criminal organization, possession of oxycodone, and multiple breaches of recognizance.

The Crown challenged three aspects of the sentencing: the application of pre-sentence custody credit to the criminal organization offence, the concurrent sentencing of breach and possession offences, and the fitness of the five-year sentence for the trafficking offences.

The Court of Appeal dismissed the appeal while granting leave to appeal.

The appellant was convicted by two separate juries of two murders committed in January 2008.

On appeal, the appellant challenged four pre-trial evidentiary rulings: (1) the admissibility of his statements to police on April 15 and 16, 2008; (2) the admissibility of shotgun shells found during a lawful traffic stop on January 15, 2008; (3) the admissibility of a statement made on February 19, 2008 regarding ammunition; and (4) the admissibility of bad character evidence.

The Court of Appeal upheld all evidentiary rulings and dismissed the appeals.

The appellant appealed his conviction for possession of crack cocaine for the purpose of trafficking.

The sole issue on appeal was whether his trial counsel provided ineffective assistance.

The appellant argued that his counsel was in a conflict of interest by representing both him and a potential third party suspect, the owner of the vehicle in which the drugs were found.

The counsel failed to advance a third party suspect defence and did not disclose the conflict to the appellant.

The Court of Appeal found that an actual conflict of interest existed, that the counsel's representation was materially and adversely affected by the conflict, and that a miscarriage of justice occurred.

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

The appellant was charged with speeding under the Highway Traffic Act and was assisted by his brother-in-law, an unlicensed non-lawyer, in proceedings before a justice of the peace.

A stay of proceedings was granted due to the prosecutor's failure to provide proper disclosure in violation of Charter rights.

On appeal to the Ontario Court of Justice, the appeal judge refused to permit the brother-in-law to continue representing the appellant based on general concerns about non-licensed persons representing defendants in provincial offence matters.

The appeal judge set aside the stay.

The Court of Appeal allowed the appeal, finding the appeal judge erred by failing to apply the proper legal test for disqualifying a representative and by relying on a blanket concern rather than examining the particular circumstances and competence of the representative.

The respondent Crown brought a motion to quash an appeal from a Superior Court order requiring the appellant to produce Youth Records under the Youth Criminal Justice Act.

The motion judge had ordered the appellant to produce specified Youth Records or face a stay of his proposed class action proceeding.

The appellant challenged the order as final rather than interlocutory, arguing the Court of Appeal had jurisdiction to hear the appeal.

The Court of Appeal held that the order was interlocutory in nature—a production order with a sanction for non-compliance—and therefore any appeal lay to the Divisional Court with leave.

The appeal was quashed and costs were awarded to the Crown.

An accounting firm filed a corporate client's tax returns after the due date, resulting in the denial of approximately $550,000 in tax credits by the Canada Revenue Agency.

The client received notices of assessment in April 2010 and pursued administrative remedies through the CRA appeal process, with the accountant's assistance, until May 2011 when the CRA advised it intended to confirm the assessments.

The client commenced a negligence action in August 2012.

The motion judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discoverable in April 2010.

The Court of Appeal allowed the appeal, holding that the claim was not discovered until May 2011 when the CRA appeal process concluded, as it would not have been appropriate to commence proceedings while alternative remedies remained available.

The appellant appealed his conviction for possession of fentanyl for the purpose of trafficking and sought leave to appeal his sentence of 48 months' imprisonment.

Following a search warrant execution, police found five 100 microgram fentanyl patches and other drugs.

The appellant pleaded guilty to simple possession but the Crown rejected this plea.

He was convicted after trial of possession for the purpose of trafficking based primarily on expert police opinion regarding the quantity.

The Court of Appeal found that the trial judge improperly abdicated his role by deferring entirely to the expert's opinion on the ultimate issue.

The conviction was set aside and substituted with a conviction for simple possession.

The sentence was reduced to one day of imprisonment in addition to time already served, as the appellant had already served over three years.

The appellant was arrested on a charge of importing cocaine under the Controlled Drugs and Substances Act and was detained in custody.

Following conviction by jury, the appellant filed an application for judicial interim release under section 523(2)(a) of the Criminal Code, alleging a change in circumstances.

The trial judge dismissed the application on the tertiary ground.

The appellant then brought an application in the nature of habeas corpus with certiorari in aid, seeking declarations regarding the court's jurisdiction to review bail and challenging the absence of a review mechanism as violating her Charter rights.

The Superior Court judge dismissed the application.

The Court of Appeal upheld the dismissal, finding that Parliament deliberately chose not to provide a review mechanism for trial judge orders under section 523(2)(a), and that habeas corpus was not an appropriate remedy in these circumstances.

The Crown appealed an acquittal on four counts of sexual offences involving a five-year-old complainant.

The trial judge found the Crown had not proven its case beyond a reasonable doubt.

The Crown advanced four grounds of appeal: (1) erroneous approach to the complainant's testimony; (2) improper imposition of a memory requirement for adoption of the videotaped statement under s. 715.1 of the Criminal Code; (3) reliance on evidence outside the trial record; and (4) findings of fact without evidentiary foundation.

The Court of Appeal dismissed all grounds of appeal, finding no legal error and emphasizing the deference owed to trial judges on credibility findings and evidentiary assessments.

The appellant appealed both his conviction for aggravated assault and his sentence of 18 months imprisonment plus two years probation.

The conviction arose from an incident in which the appellant's motor vehicle struck and severely injured a pedestrian in a parking lot outside a pub, following an altercation with another patron.

The appellant argued the collision was inadvertent, while the Crown alleged it was intentional.

The Court of Appeal dismissed both the conviction and sentence appeals, finding the trial judge's factual findings and credibility determinations were reasonable and entitled to deference, and the sentence was fit and within the appropriate range.

The respondent, Trade Capital Finance Corp., alleged it was defrauded of approximately $6.5 million in a scheme involving the purchase of fictitious accounts receivable.

The majority of lost funds were deposited into bank accounts owned by the appellant, The Cash House Inc., a financial services company.

Trade Capital obtained a Mareva Order freezing assets and ordering financial disclosure.

The appellants were found in contempt for intentionally operating Cash House through a bank account owned by a related entity (2454904 Ontario Inc.) in violation of the Mareva Order, and for failing to produce required documents.

The motion judge sentenced Osman Khan to 90 days imprisonment and struck Cash House's statement of defence and crossclaim.

The appellants appealed, arguing the Mareva Order was ambiguous and that the sanctions were excessive.

The Court of Appeal dismissed the appeal, finding the Mareva Order sufficiently clear and the sanctions justified by the appellants' persistent non-compliance.

The appellant appealed the dismissal of an application challenging the Crown's assumption of a private prosecution and subsequent withdrawal of charges against a police officer for alleged assault in custody.

The appellant had commenced a private prosecution against Constable Labreche, and after a prima facie case was found, the Crown intervened to assume carriage.

The appellant challenged this intervention in the Superior Court, alleging breach of Charter rights and bias.

The application was dismissed.

The Crown subsequently withdrew the charge.

The appellant brought a second application asserting constitutional challenges to the legislative regime permitting Crown intervention.

The Court of Appeal dismissed the appeal on the basis of issue estoppel, finding that both applications raised identical issues regarding the Crown's decision to take over the prosecution and the appellant's exclusion from it.

On appeal from a trial judgment finding the municipal defendants liable for damages arising from a motor vehicle accident on a rural road during winter conditions.

The appellants challenged the trial judge's interpretation and application of the Municipal Act, 2001 duty to clear roads of snow and ice.

The trial judge found the road in a state of non-repair and held the municipality failed to take reasonable steps to prevent or correct the condition.

The appellants argued the trial judge applied an unreasonably high standard of maintenance for a Class 4 rural road, erred in requiring the application of straight salt rather than sand/salt mixture, and excluded relevant evidence regarding financial costs.

The Court of Appeal allowed the appeal in part, set aside the liability findings, and ordered a new trial on liability issues while upholding the damages assessment.

Appeal from a summary judgment dismissing the appellant's action for domain name disputes and an order dismissing the appellant's motion to strike paragraphs of the respondent's statement of defence.

The appellant sought leave to appeal the costs award.

The Court of Appeal upheld the motions judge's decision, finding no error in the refusal to adjourn the summary judgment motion, no error in dismissing the motion to strike, and no basis to interfere with the costs award.

The court found that the appellant had registered domain names confusingly similar to the respondent's marks in bad faith and had engaged in unethical and deceptive conduct.

An employee who was employed as CEO and president for nine years brought an appeal challenging the trial judge's finding that the employer's refusal to pay a bonus on profits from the sale of real estate investments did not constitute constructive dismissal, despite breaching the employment contract.

The Court of Appeal upheld the trial judge's decision, finding that the breach did not substantially alter an essential term of the employment contract and did not evince an intention by the employer to no longer be bound by the contract.

The court applied the two-branch test from Potter v. New Brunswick Legal Aid Services Commission, finding that neither branch was satisfied on the facts.

The appellant appealed his sentence of three years imprisonment imposed following a guilty plea to possession for the purpose of trafficking of two ounces of methamphetamine.

The Court of Appeal found that the sentencing judge erred in principle by failing to give meaningful credit for the early guilty plea, despite acknowledging that substantial credit was warranted.

The court considered the appellant's difficult background, including childhood sexual abuse and early drug addiction, as well as his progress in custody.

The sentence was reduced to two years imprisonment.

The appellant sought leave to appeal his sentence on the basis that the trial judge failed to give credit for restrictive bail terms as required by R. v. Downes.

The trial judge had misapprehended the duration of the bail period, referring to 42 days of pre-bail custody rather than the actual 18 months the appellant spent on restrictive bail conditions.

The Court of Appeal found that had the trial judge understood the true duration and restrictive nature of the bail conditions, he would have granted the five months' credit requested by defence counsel.

Leave to appeal was granted and the sentence was reduced by five months.