Kathryn N.M. van Rensburg

The appellant, A.B., appealed his conviction for sexual assault, arguing errors in the trial judge's jury charge regarding prior inconsistent statements, demeanour evidence, and wilful blindness/recklessness.

The Court of Appeal dismissed the first two grounds but found that the trial judge erred in instructing the jury on the mens rea requirement for sexual assault, specifically regarding recklessness and wilful blindness.

The trial judge's instruction incorrectly suggested an objective standard ("should have inquired") rather than the required subjective standard of knowledge.

The court found this error was not harmless, especially given the jury's acquittal on other counts, suggesting a potential reasoning error based on what a reasonable person ought to have known.

The appeal was allowed, and a new trial was ordered.

This appeal concerned an alleged contract for the purchase and sale of goodwill in an investment business, with an alternative claim for unjust enrichment.

The trial judge found a binding contract or, alternatively, unjust enrichment.

The appellant challenged the trial judge's findings on contract formation (intention and essential terms), unjust enrichment, and mitigation of losses.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding of a binding contract and declining to rule on the unjust enrichment finding.

The court also upheld the trial judge's finding on mitigation, noting the appellant failed to meet the onus to show mitigation was possible.

The appellant, a taxi driver, appealed convictions for sexual assault with a weapon, sexual interference, and invitation to sexual touching involving a 9-year-old child.

The appeal centered on whether the trial judge misapprehended the complainant's evidence regarding the assailant's smoking and coffee-drinking habits, which the defence argued were central to identity.

The Court of Appeal dismissed the appeal, finding the trial judge did not misapprehend the evidence and that the details were peripheral to the complainant's core, credible, and reliable testimony.

The sentence appeal was dismissed as abandoned due to lack of submissions.

The appellant, Selvin De Flores Bermudez, appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching.

The Crown cross-appealed the three-year concurrent sentence imposed at first instance.

The Court of Appeal dismissed the conviction appeal, finding no error in the admission of bad character evidence (due to defence counsel's tactical decision) or the trial judge's approach to emotional response evidence.

The court granted leave to appeal sentence, concluding that the trial judge erred in declining to apply the sentencing principles from R. v. Friesen to historical offences.

The Court of Appeal substituted a four-year custodial sentence, emphasizing that the effects of the sentence on the offender and his prospects for rehabilitation, while considered, cannot take precedence over the harm caused to the child victim.

The Court of Appeal for Ontario issued a costs endorsement following an allowed appeal.

The appellant sought $18,760 in partial indemnity costs for the proceeding below, having filed an offer to settle for dismissal of the motion without costs.

The respondents proposed $6,000.

The court considered the time spent by both parties and fixed costs at $15,000, all-inclusive, to be paid by the respondents to the appellant for the lower court proceedings.

The appellants appealed a trial judgment that found a beneficial interest of 26% in a house for a deceased's estate, based on a purchase money resulting trust.

The appeal addressed whether the trial judge erred in applying the legal requirements for a resulting trust, particularly the "acted as a purchaser" requirement and the onus of proof regarding loans versus gifts.

It also considered the application of the corroboration requirement under s. 13 of the Evidence Act.

The Court of Appeal clarified that the presumption of resulting trust places the onus on the title holder to rebut it by proving the money was a loan or gift, and that the "acted as a purchaser" requirement applies only at the time of advancement.

The court found no reversible error in the trial judge's findings on the resulting trust or the application of s. 13, as the trial judge rejected the loan evidence on credibility grounds.

The appeal was dismissed.

The appellant, Kensky Dautruche, appealed two convictions for possession of cocaine and crack cocaine for the purpose of trafficking.

The appeal challenged the validity of a vehicle search incident to arrest for flight from police under s. 8 of the Canadian Charter of Rights and Freedoms, and the trial judge's inference regarding the appellant's possession of cocaine found outside the vehicle.

The Court of Appeal upheld the trial judge's finding that the search was a valid search incident to arrest, as the officer had a reasonable subjective belief that the search might uncover evidence explaining the flight.

The court also determined that even if a Charter breach occurred, the evidence would not be excluded under s. 24(2).

Furthermore, the Court affirmed the trial judge's inference of possession of the second bag of cocaine, finding it to be the only rational inference from the circumstantial evidence.

The conviction appeal was dismissed, and leave to appeal sentence was denied.

The appellant, Mr. Zaidi, appealed the dismissal of his application to enforce a settlement agreement against the estate of his uncle and the estate trustee.

The application judge had rescinded the settlement on grounds of innocent misrepresentation, unconscionability, and undue influence.

Mr. Zaidi argued procedural unfairness, that a trial should have been directed due to credibility issues, that his alternative claim for unjust enrichment was overlooked, and that the principle of settlement finality was not respected.

The Court of Appeal dismissed the appeal, finding no procedural unfairness as the issues were squarely before the lower court, upholding the summary determination as agreed by parties, confirming the unjust enrichment claim was not properly advanced, and reiterating that settlements, while generally final, can be rescinded on valid contractual grounds.

Leave to appeal costs was also denied.

This appeal concerned a dog bite injury where the appellants sued the dog owners and the landlords of the property.

The motion judge granted summary judgment to the landlords (Crisols), dismissing the action against them, based on an interpretation of the Dog Owners' Liability Act (DOLA) s. 3(1) that it entirely ousted the Occupiers' Liability Act (OLA) for non-dog owners when a bite occurs on the dog owner's premises.

The Court of Appeal found the motion judge erred in this interpretation, clarifying that DOLA s. 3(1) only determines the liability of the dog owner under DOLA, not precluding OLA or common law claims against other parties.

However, the Court of Appeal upheld the summary judgment dismissal against the landlords on the alternative ground that there was no genuine issue for trial regarding their liability under the OLA or common law, as absentee landlords who had no prior knowledge of the dog's temperament and no responsibility for the dog or its behaviour, and where the injury was not causally linked to any failure in property maintenance or repair.

The appellant, convicted of sexual assault and assault with choking, appealed his convictions, arguing the trial judge provided inadequate reasons for rejecting his main defence of fabrication and accepting the complainant's evidence.

The defence posited the complainant fabricated allegations to conceal a consensual encounter from her boyfriend, citing evidence like shared location data, friendly post-incident texts, and the complainant's shifting testimony on her boyfriend's potential reaction.

The Court of Appeal found the trial judge's reasons insufficient, noting a failure to grapple with key defence evidence, mischaracterization of text messages, and an inadequate assessment of the complainant's credibility regarding motive to fabricate.

The appeal was allowed, and a new trial ordered.

This appeal concerned the enforceability of a restrictive covenant in the context of a dentistry practice sale.

The appellants, Dr. Cooke, 6326471 Canada Inc., and Dr. B. Zaricniak Dentistry Professional Corporation, challenged a five-year, 15 km non-competition covenant after Dr. Cooke terminated his association and began working at a nearby practice.

They argued the trial judge erred in applying the burden of proof and in finding the covenant's duration and geographic scope reasonable.

The Court of Appeal dismissed the appeal, affirming that restrictive covenants in commercial contexts are presumed valid and attract less scrutiny than in employment, and upheld the trial judge's assessment of the covenant's reasonableness.

The appellant mortgagor brought a motion to review a single judge's order denying a stay of a Superior Court order in mortgage enforcement proceedings, and also appealed the underlying order.

The Court of Appeal dismissed both the review motion and the appeal.

The court found that Rule 37.14, which the appellant relied upon to set aside a consent judgment, did not apply as he was represented at the original hearing.

Furthermore, there was no basis to reopen the mortgage enforcement proceedings given the established default and the appellant's inability to refinance or sell the property.

This appeal concerned a solicitor's negligence claim where the appellant alleged his former lawyers settled an estates dispute without his instructions, specifically regarding his ability to sue another lawyer involved in the estate.

The trial judge found that the settlement document did not preclude such a claim and that the lawyers had acted within instructions.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the settlement terms did not prevent subsequent litigation against the third-party lawyer and that the limitation period argument was not a bar to commencing an action.

The court emphasized that the objective intention of the parties, not a default "standard form release" determines the scope of settlement terms.

The appellant, a homebuilder, appealed a summary judgment that granted the respondent relief from forfeiture of an $82,916.19 deposit for a home purchase.

The transaction did not close, and the appellant claimed the respondent breached the contract and forfeited the deposit.

The motion judge found it appropriate to relieve the respondent from forfeiture.

The appellant argued the motion judge applied the wrong legal test, asserting that relief from forfeiture is unavailable if the breach was entirely the party's fault.

The Court of Appeal dismissed the appeal, affirming that the correct test, as per Redstone Enterprises Ltd. v. Simple Technology Inc., focuses on whether the forfeiture is out of proportion to damages and if retention would be unconscionable, without making the applicant's fault a precondition.

The court upheld the motion judge's findings regarding the parties' sophistication, lack of loss to the vendor, and the appellant's misleading conduct.

ID Inc. brought a motion to quash part of an appeal by the Toronto Wholesale Produce Association (TWPA), arguing the appeal was out of time because the judgment for damages was "pronounced" earlier than the final judgment date.

The TWPA opposed and brought a cross-motion for an extension of time if necessary.

The Court of Appeal dismissed ID Inc.'s motion, finding that there was only a single judgment, not two, and therefore the appeal was not out of time.

The TWPA's cross-motion was dismissed as moot.

The appellant, Gianluca Salvati, appealed his convictions for multiple drug offences, possession of proceeds of crime, and breach of a bail recognizance.

The Court of Appeal for Ontario dismissed the appeal.

The court upheld the trial judge's findings regarding constructive possession of drugs and proceeds, finding no misapprehension of evidence or reversal of the burden of proof.

On the breach of recognizance charge, the court found that an uncertified photocopy of the bail recognizance was properly admissible under the common law public or judicial documents exception to the hearsay rule, despite the trial judge having admitted it under the principled exception.

This is a motion by Gary Curtis to review an order of a judge of the Court of Appeal for Ontario that provided directions for the perfection of an appeal brought by The Bank of Nova Scotia (BNS).

The original order dispensed with immediate filing of the order under appeal, required BNS to file a draft order for deemed perfection, and set a timeline for Mr. Curtis's factum.

Mr. Curtis argued he was prejudiced and that the motion judge erred in the directions and costs award.

The Court of Appeal panel found no error in principle or unreasonable result, dismissing Mr. Curtis's motion to review, but granted him an extension of time to file his responding materials and perfect his cross-appeal.

The appellant sought leave to appeal his sentence for multiple driving offences, including impaired driving by drug, dangerous driving, impaired driving by alcohol, failure to stop at the scene of an accident, and driving while prohibited.

He received a global sentence of 46 months imprisonment, less credit, and a 10-year driving prohibition.

The Court of Appeal granted leave but dismissed the appeal, finding that the sentencing judge properly considered the principles of totality and proportionality.

The court rejected arguments that the judge failed to consider the principle of gradualism or imposed an excessive sentence, emphasizing the appellant's serious criminal record and the nature of the offences, especially in light of legislative changes increasing maximum penalties for driving offences.

The Court of Appeal for Ontario heard an appeal from a jury verdict and costs endorsement in a personal injury action.

The appellants (defendants) challenged the admissibility of a SPECT scan, the exclusion of attendant care forms for credibility, and jury instructions on causation and damages.

They also appealed the trial judge's refusal to deduct non-earner benefits from the tort award and the costs award.

The Court dismissed the appeals regarding the SPECT scan, attendant care forms, and jury instructions.

However, it allowed the appeal in part, ruling that non-earner benefits are deductible from the past income loss award, clarifying the "silo" approach under the Insurance Act.

The appeal on costs was dismissed, and the respondent was awarded costs for the appeal.

The appellants, gynecologic oncologists, appealed a Superior Court decision that dismissed their application seeking continued funding from the Academic Medical Organization of Southwestern Ontario (AMOSO).

AMOSO, an unincorporated not-for-profit, had decided to discontinue their funding.

The appellants argued breach of contract and sought a contractual remedy or alternative dispute resolution, asserting they were third-party beneficiaries of a funding agreement.

The application judge dismissed their claim, finding no contractual right and that AMOSO's decision-making process was fair.

The Court of Appeal upheld the dismissal, confirming that the appellants were not parties to the agreement, nor were they intended third-party beneficiaries, and that the court's review of AMOSO's discretionary decision was limited to procedural fairness, which AMOSO had met.