Kathryn N.M. van Rensburg

This is a costs endorsement from the Court of Appeal for Ontario concerning multiple appeals and a motion.

The court ordered that all parties bear their own costs for the appeals and the motion before the lower court, indicating a balanced outcome on the issue of costs.

Oscar Furtado appealed a decision denying him Directors and Officers insurance coverage and relief from forfeiture.

The Ontario Securities Commission (OSC) initiated an investigation against Furtado's real estate development business, Go-To, during the policy period.

While a confidentiality order initially prevented disclosure to the insurer, the law changed in December 2019 to permit such disclosure.

Furtado was explicitly notified of this change in February 2021 but did not report the investigation to Lloyd's Underwriters until February/March 2022, after the OSC commenced formal proceedings.

The Court of Appeal upheld the application judge's finding that Furtado's failure to report the investigation once legally permitted constituted non-compliance with a condition precedent to coverage, rather than imperfect compliance.

Consequently, relief from forfeiture was unavailable, as granting it would extend coverage beyond the bargained-for terms of the claims-made and reported policy.

The appeal was dismissed.

The appellant, Michael John William Ball, appealed his conviction for first-degree murder, challenging the trial judge's jury charge on two grounds: the standard of proof regarding the cause of death and the adequacy of the Vetrovec warning for an unsavoury witness.

He also argued that the trial judge erred in handling the jury's request to review expert evidence.

The Court of Appeal dismissed the appeal, finding no reversible errors.

The court concluded that the jury charge, when considered holistically, adequately equipped the jury, and the Vetrovec warning fulfilled its purpose.

Furthermore, the trial judge's decision to cease playback of expert testimony upon the jury's indication that their questions were resolved was deemed a reasonable exercise of discretion, as the reviewed evidence was uncontroversial and did not require further contextualization.

The Court of Appeal for Ontario heard motions for leave to adduce evidence and for a confidentiality order in the context of a reference regarding the legality of an online provincial lottery scheme permitting international play.

The court granted leave to the Attorney General of British Columbia and the Canadian Lottery Coalition Members to file their proposed evidence, finding it potentially helpful for the reference panel.

The court dismissed the Canadian Gaming Association's motion for a confidentiality order, ruling that alleged reputational harm was a private interest insufficient to override court openness, especially as the information was largely public.

The appellant, J.F., appealed his convictions for multiple offences including assault, sexual assault, forcible confinement, uttering death threats, and careless storage of firearms.

The appeal challenged the trial judge's assessment of the complainant's credibility, specifically regarding the explanation of memory gaps due to trauma, reliance on testimonial demeanour, and the use of lack of exaggeration.

The appellant also argued insufficient reasons for the convictions.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge properly applied the principles of credibility assessment, did not reverse the burden of proof, and provided sufficient reasons for the verdict.

The appellants, Thulani Chizanga and Shamar Meredith, appealed their convictions for second-degree murder and Mr. Meredith appealed his sentence.

The main issues on appeal included the admissibility of a "Super 8 Video" as prior discreditable conduct evidence, the trial judge's jury instructions on joint enterprise liability, post-offence demeanour evidence, and defence theories, as well as sentencing errors related to aggravating factors and mitigating circumstances.

The majority dismissed all appeals, finding no legal errors in the trial judge's decisions regarding evidence admissibility, jury instructions, or sentencing.

A dissenting judge would have allowed the conviction appeals and ordered a new trial, arguing the Super 8 Video was improperly admitted and instructed upon, particularly concerning its probative value for joint enterprise to kill.

This appeal addresses whether limited partners can bring a common law derivative action on behalf of a limited partnership.

The Court of Appeal for Ontario held that while limited partners have direct causes of action against a general partner for breach of fiduciary duty or contract, negating the need for a derivative action in such cases, a common law derivative action may be available against third parties who have harmed the limited partnership, particularly when the general partner is in a conflict of interest and refuses to act.

The court dismissed the derivative action against the general partner and its director but granted leave for a derivative action against the three third parties, establishing a test for such leave.

The appellant, Daniel Wright, appealed a three-and-a-half-year custodial sentence for sexual exploitation of his stepdaughter, committed between 1988 and 1990.

He argued the sentence was excessive, the judge erred in applying contemporary sentencing principles to a historical offence, and sought to introduce fresh evidence regarding a risk assessment and prior willingness to take responsibility.

The Court of Appeal dismissed the appeal, finding no error in principle or palpable and overriding error of fact, and that the sentence was fit.

The court also denied the fresh evidence application, concluding it would not have affected the outcome, and declined jurisdiction over the SOIRA order given the sentence was not reduced.

The appellant, Narman Abri, appealed a motion judge's decision to grant a nunc pro tunc order, deeming a statement of defence and counterclaim issued on the date of filing, despite not being formally issued before the limitation period expired.

The Court of Appeal affirmed the motion judge's decision, distinguishing the case from precedents requiring leave to commence an action.

The court found the lack of issuance to be a procedural irregularity under Rule 2.01, not undermining the purposes of limitation periods, as the appellant had notice of the counterclaim.

The appellant, a nurse, was convicted by a jury of attempted murder of her 19-month-old daughter (E.) and her mother (I.F.) by administering insulin, and aggravated assault of E. The attempted murder of E. resulted in severe, permanent brain damage.

The appellant appealed both convictions and sentences.

The Court of Appeal dismissed the conviction appeal for the attempted murder of E. and the sentence appeal, finding the life sentence for E.'s attempted murder fit given the severe harm and breach of trust.

However, the Court allowed the appeal for the attempted murder of I.F. and ordered a new trial, finding that the trial judge erred in jury instructions by not sufficiently distinguishing attempted murder from aiding suicide, particularly regarding the mens rea and causal link if I.F. had self-administered the insulin.

The appellant, David Lanktree, appealed his 5-year prison sentence for drug and weapons offences, arguing the trial judge erred by not imposing a conditional sentence, treating community drug problems as an aggravating factor, and failing to consider Duncan credit for harsh pre-sentence custody conditions.

The Court of Appeal dismissed the appeal, finding the sentencing judge correctly determined a conditional sentence was inappropriate given the appellant's history of re-offending and breaches.

The court also found the judge did not err in principle by considering the community impact of drug trafficking for denunciation and deterrence, and that the discretion regarding Duncan credit was properly exercised.

The appellant appealed his convictions for drug trafficking and breach of bail, and the imposed sentence.

The conviction appeal was dismissed because the s. 8 Charter issue regarding the search was not raised at trial, and the evidentiary record was insufficient for appellate review under the R. v. Reid test.

The sentence appeal was allowed in part, granting an additional two months of Duncan credit in recognition of the harsh conditions served during pre-sentence custody, thereby reducing the global sentence from 51 months to 49 months.

The appellant was convicted of sexual assault and overcoming resistance by choking.

He appealed both the convictions and the sentence.

The Court of Appeal dismissed the appeals, finding that the trial judge's assessment of the complainant's credibility and the minor inconsistencies in her evidence was entitled to deference.

The court also affirmed that corroboration is not a requirement for conviction in such cases.

The sentence appeal was not pursued.

The appellant, Peter Knelsen, appealed his convictions for sexual assault, sexual interference, and child luring.

The central issue was whether the trial judge erred in admitting text messages between the appellant and the complainant, which the trial judge found were obtained in violation of the appellant's s. 8 Charter rights but admitted under s. 24(2).

The Court of Appeal dismissed the appeal, finding that the trial judge erred in concluding the appellant had standing to assert his s. 8 rights, as he had no objectively reasonable expectation of privacy in the text messages exchanged with the 15-year-old complainant, especially given the messages constituted the offence of child luring.

The appellant, convicted of domestic assault and breaches of orders, appealed the non-communication order prohibiting contact with his child, who was present during the assault.

The Court of Appeal for Ontario dismissed the appeal, upholding the non-communication orders during incarceration and probation.

The court found the orders warranted due to the traumatic circumstances and prior family court orders, clarifying that any future contact with the child would be determined by family court or the Children's Aid Society based on the child's best interests.

The appellant appealed his convictions for manslaughter and aggravated assault, primarily on the ground of ineffective assistance of counsel (IAC).

The Court of Appeal reviewed the materials and submissions, concluding that the IAC claim lacked merit as it was not supported by the factual record and failed to meet the established test for IAC.

The court specifically addressed the appellant's concern regarding certain video evidence, accepting trial counsel's assertion that it would not have aided the defence, and noting that the appellant's identity was otherwise compellingly established.

The appeal was dismissed.

The Crown applied to quash a motion by the appellant to re-open his conviction appeal.

The appellant, convicted of multiple aggravated assaults and assaults with a weapon, sought to re-open his dismissed appeal, alleging insufficient preparation time and improper consideration of grounds, particularly regarding video evidence and identity.

The Court of Appeal found no reasonable prospect of success for the appellant's motion, concluding his arguments were fanciful and the evidence of guilt overwhelming.

The Crown's application was granted, and the motion to re-open was quashed.

This is an appeal from an order dismissing an action, primarily sounding in defamation, under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act).

The motion judge had dismissed the action, finding that the plaintiff (appellant) had not discharged his burden under s. 137.1(4).

The Court of Appeal found that the motion judge erred in his consideration of the respondents' defences to the defamation claims and in his weighing of the public interest in the expressions against the plaintiff's interest in proceeding.

The Court of Appeal concluded that the plaintiff had established grounds to believe the action had substantial merit and the respondents had no valid defence, and that the public interest in permitting the action to continue outweighed the public interest in protecting the impugned expressions.

The appeal was allowed, and the action was permitted to proceed in its entirety.

The appellant appealed his sentence, arguing that the sentencing judge failed to consider the unusually harsh conditions of his pre-sentence detention (lockdowns and triple-bunking) as a mitigating factor, relying on fresh evidence.

The Crown did not oppose the admission of fresh evidence but asserted the original sentence was fit.

The Court of Appeal admitted the fresh evidence and found it warranted a two-month reduction in the appellant's sentence for sexual abuse offences committed against his stepdaughter.

The appellant was convicted of multiple sexual offences and possessing child pornography, receiving a 10-year prison sentence.

He appealed his conviction, arguing ineffective assistance of counsel and that the trial judge failed to adequately address inconsistencies in a complainant's evidence.

The Court of Appeal dismissed the appeal, finding that the appellant did not meet the factual threshold for ineffective assistance of counsel and that the trial judge properly characterized the inconsistencies in the complainant's evidence as "peripheral" distinguishing the case from precedents where inconsistencies were deemed "profound."