Kathryn N.M. van Rensburg

This is a costs endorsement following an appeal allowed by the Court of Appeal for Ontario.

The appellants were successful in their appeal from a Superior Court decision dated February 1, 2016.

The court awarded costs of the motion in the court below and of the appeal to the appellants on a partial indemnity basis.

The respondent did not submit costs submissions within the deadline.

The court fixed the appellants' costs at $20,000.00, inclusive of disbursements and HST.

The appellant was convicted of aggravated assault and sentenced to 22 months' imprisonment following a home invasion robbery.

The appellant claimed self-defence after striking the intruder with a shovel, causing significant injuries.

The trial judge rejected the self-defence claim, finding the appellant had the intruder under control and administered a gratuitous beating.

The appellant appealed both conviction and sentence on multiple grounds, including alleged misapprehension of evidence regarding bear spray effects, the timing of acquiring the shovel, and the number of blows struck.

The Court of Appeal dismissed the conviction appeal, finding no material errors in the trial judge's credibility assessments and factual findings.

The sentence appeal was also dismissed, with the court finding the 22-month sentence was within the appropriate range for aggravated assault by a first offender.

The appellant appealed a sentencing decision imposing a conditional sentence of six months followed by one year probation for two Criminal Code offences related to applying for and using a false passport.

The appellant argued the sentencing judge erred in law or principle in refusing to impose a conditional discharge by failing to properly consider the "public interest" factor under section 730 of the Criminal Code.

The Court of Appeal dismissed the appeal, finding the sentencing judge's conclusion that a conditional discharge was not in the public interest was entirely warranted given the appellant's use of a fraudulent passport to make multiple entries into the United States.

The appellant appealed his conviction for sexual assault of his sister-in-law, alleging the conviction was unreasonable.

The complainant alleged approximately 10-50 sexual assaults occurred between 1997 and 1999 when she was 16-17 years old.

The Court of Appeal found that important aspects of the complainant's evidence were demonstrably false, including her claims of being enslaved and controlled.

The trial judge herself had significant misgivings about the complainant's credibility and found that the Crown had not proven most of the alleged assaults beyond a reasonable doubt.

The appellate court determined that the risk of wrongful conviction was too high and set aside the conviction, entering an acquittal.

The appellant appealed his sentence of four years' imprisonment plus 13 months pre-sentence custody for multiple driving-related offences including impaired driving, dangerous driving, flight from police, driving while disqualified, and failing to provide a breath sample.

The central issue was whether the sentence exceeded the statutory maximum of five years when pre-sentence custody was included in the calculation.

The Court of Appeal found the sentence was illegal as it exceeded the maximum by one month and 19 days.

The court established that pre-sentence custody must be considered when calculating sentences against statutory maximums, following the principle established in minimum and conditional sentence cases.

The appeal was allowed and the sentence was reduced to 34 months and 11 days from the date of sentencing.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated April 27, 2016.

The appellant raised two grounds of appeal: first, that the Board should have made further inquiries regarding the cause of the appellant's psychosis (whether from liver disease or bipolar disorder), and second, that the Board erred in rejecting conditions regarding community access and an approved person.

The Court of Appeal dismissed both grounds, finding no error in the Board's acceptance of the joint position that the appellant remained a significant risk to public safety and no error in the Board's decision to impose more limited community access conditions at that time.

This is a costs endorsement following an appeal of a partial summary judgment motion.

The appellants sought rescission of an agreement of purchase and sale and damages, with their claims being representative of 20 other similar outstanding actions.

The Court of Appeal allowed the appeal in part, awarding rescission to one appellant and damages to another (with calculation to be determined by the Superior Court).

The court addressed the costs of the partial summary judgment motions, considering offers to settle that included interest provisions and applied to multiple similar claims.

The court awarded costs to the appellants for the partial summary judgment motions while reducing the amount claimed due to the dismissal of motions against three individual defendants and the ongoing nature of the claims.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated May 13, 2016.

The appellant raised three grounds of appeal: (1) the Board failed to apply the Winko test in concluding the appellant remains a significant threat to public safety and failed to order an absolute discharge; (2) the Board erred in failing to order a conditional discharge; and (3) conditions should be amended to allow community living in Brockville rather than North Bay due to North Bay's inability to receive the appellant.

The Court of Appeal dismissed the first two grounds but allowed the appeal on the third ground, permitting the appellant to live in approved community accommodation in Brockville.

The appellant appealed a disposition of the Ontario Review Board dated April 11, 2016, raising an issue regarding the supervisory powers of the Board between hearings.

The Court of Appeal found the appeal to be moot as the Board's disposition had been implemented and the appellant sought no remedy on appeal.

The appeal was dismissed as moot.

Two youths, aged 16 at the time of the offence, were convicted of first degree murder in the execution-style killing of another youth.

The Crown applied to have them sentenced as adults.

The youth court judge allowed the Crown's application and imposed life sentences with ten years' parole ineligibility.

On appeal, the appellants challenged the adult sentences, arguing that the youth court judge erred in concluding that the intensive rehabilitative custody supervision (IRCS) program would not adequately address their rehabilitation needs and that the presumption of diminished moral blameworthiness had not been properly considered.

The Court of Appeal allowed the appeal, finding that the youth court judge had made reversible errors in his analysis of the IRCS program and that the Crown had failed to overcome the presumption of diminished moral culpability.

The court substituted youth sentences with IRCS orders.

The appellant appealed his convictions for possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime.

The appellant challenged the warrantless search of the vehicle as a breach of his section 8 Charter rights.

The trial judge rejected the Charter claim, though he erred in stating the onus of proof was on the appellant.

The appellate court found this error harmless based on the trial judge's credibility findings.

The court upheld the conviction for possession for the purpose of trafficking but set aside the conviction for possession of proceeds of crime, finding the evidence insufficient to support that finding beyond a reasonable doubt.

The appellant was charged with possession of cocaine for the purpose of trafficking arising from a reverse sting operation conducted by the RCMP in August 1997.

The appellant was initially acquitted in 2000, but the Court of Appeal set aside the acquittal and ordered a new trial.

At the retrial in 2014, the appellant sought a stay of proceedings based on abuse of process, alleging that the lead investigator deliberately misled his superiors and withheld disclosure.

The trial judge rejected these allegations and convicted the appellant.

The appellant appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no material misapprehension of evidence, and dismissed the sentence appeal, finding the 10 years 10 months imprisonment and delayed parole eligibility were fit.

The appellant purchased a commercial property that was contaminated by hydrocarbons that had migrated from an adjacent former gas station property.

The respondents moved for summary judgment to dismiss the action as statute-barred under the Limitations Act, 2002, arguing that the appellant knew or ought to have known of the contamination more than two years before commencing the action.

The motion judge granted the motion, finding that the appellant had knowledge of the claim by March 9, 2012, or alternatively by March 30, 2012.

The Court of Appeal allowed the appeal, finding that the motion judge made palpable and overriding errors by equating the appellant's suspicion of contamination with actual knowledge of contamination, and by failing to consider the relevant circumstances of the multi-property transaction and the waiver of conditions.

The appellant appealed his sentence of 15 months' imprisonment plus two years' probation for possession of 28 grams of cocaine for the purpose of trafficking.

The appellant had pled guilty and was admitted to the Halton Drug Treatment Court program but was expelled after testing positive for cocaine on three occasions and lying about the circumstances of his relapse.

The Court of Appeal found that the sentencing judge erred in principle by treating the appellant's failure to fully engage in the program and his dishonesty as aggravating factors.

The court allowed the appeal and reduced the sentence to nine months' imprisonment, maintaining the probation and section 109 order.

A citizen reported criminal activity by neighbours' sons to police, claiming she was promised confidentiality.

The police officer did not disclose that the interview was being videotaped.

The neighbours' sons were arrested, and the citizen's identity and videotaped interview were included in Crown disclosure.

The citizen was subsequently harassed and threatened by the neighbours, leading to post-traumatic stress disorder and relocation.

The trial judge found the police liable for breach of confidence and awarded general damages of $345,000, plus Family Law Act damages.

The appellants appealed, arguing the trial judge erred in finding a promise of confidentiality, that necessary elements for the claim were not established, and that damages were excessive.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings and damage award.

The appellant was convicted of attempted murder and first degree murder following a street altercation in Barrie, Ontario in which two members of an opposing group were stabbed.

The appellant appealed on four grounds: (1) erroneous jury instructions on after-the-fact conduct; (2) one-sided jury charge on planning and deliberation; (3) insufficient instructions on intent for murder; and (4) failure to redact references to the appellant being bipolar.

The Court of Appeal dismissed the appeal on all counts but substituted a conviction for second degree murder for the first degree murder conviction, finding the trial judge's charge on planning and deliberation was heavily weighted toward inculpatory evidence and omitted significant exculpatory evidence.

The appellant appealed his convictions and 20-month sentence for possession and distribution of child pornography.

He argued the trial judge failed to properly apply the W.(D.) test to his defence of innocent possession, misapprehended evidence regarding deleted files, and provided insufficient reasons.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly applied the law and relied on compelling evidence of knowledge, including the sophisticated organization of the files.

The sentence appeal was also dismissed, as the 20-month term was within the appropriate range and the trial judge made no errors in assessing aggravating factors.

The appellant appealed his convictions for sexual offences against two young children who attended his home daycare.

The trial judge had admitted the children's unsworn statements under the principled exception to the hearsay rule and rejected the appellant's testimony.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred by relying on defence counsel's trial tactics to impugn the appellant's credibility and by finding the necessity criterion for hearsay met without expert evidence of psychological trauma or a proper voir dire on the children's ability to recollect.

The appellant was convicted of dangerous driving causing bodily harm and assault with a weapon following a road rage incident.

On appeal, he argued his s. 10(b) Charter rights were breached when police failed to provide a second opportunity to consult counsel after informing him of the additional assault charge.

The Court of Appeal agreed, finding the new charge significantly increased his jeopardy and moral blameworthiness.

Applying the Grant framework, the court excluded the appellant's police statement under s. 24(2), allowed the appeal, and ordered a new trial.

The appellant appealed a finding of civil contempt and a 30-day jail sentence for failing to comply with a default judgment requiring him to provide an accounting and produce financial documents.

The appellant argued the motion judge failed to articulate the test for contempt, erred in ordering production of documents from a Crown disclosure brief, and violated principles of fundamental justice.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the test for contempt beyond a reasonable doubt, properly rejected the appellant's excuse regarding the Crown brief, and afforded the appellant procedural fairness.