Kathryn N.M. van Rensburg

The appellants appealed a summary judgment ordering repayment of funds advanced by the respondent and dismissing the appellants' counterclaim for defamation.

The Court of Appeal found no error in the motion judge's grant of summary judgment on the loan claim, his rejection of the non est factum defence, or his dismissal of the defamation counterclaim.

However, the court found that the issue of reverse corporate veil piercing to impose liability on the corporate appellants was not properly before the motion judge and may not have been fairly argued.

The appeal was allowed in part: the judgment against the corporate appellants was set aside and remitted for redetermination, but dismissed in all other respects.

The moving party brought a motion under s. 7(5) of the Courts of Justice Act to set aside a single judge's order requiring her to post $50,000 in security for costs of her appeal.

The panel found no error in principle, unreasonable result, legal error, or misapprehension of material evidence in the motion judge's decision.

The motion judge had considered 11 outstanding costs orders totalling over $146,000, the moving party's lack of diligence in perfecting her appeal, and the prejudice to the estate beneficiaries.

The panel declined to consider new affidavit evidence filed after the motion judge's decision.

The motion was dismissed with costs of $10,000 payable to the responding party.

The appellant sought to set aside a default judgment entered seven years earlier after her pleadings were struck for non-compliance with a costs order imposed as a condition of an adjournment.

The motion judge dismissed the motion, finding it was not brought promptly or pursued diligently and disbelieving the explanation offered.

On appeal, the court found no error in the motion judge's application of the test under Rule 19.08 for setting aside a default judgment, including findings of prejudice and tarnishing of the administration of justice.

The appellant appealed convictions for sexual assault, sexual interference, invitation to sexual touching, and possession of child pornography, raising three grounds including that the application judge erred in dismissing his s. 11(b) Charter application.

The Court of Appeal found that the application judge incorrectly characterized multiple periods of delay as defence delay, applying a bright-line rule later rejected by the Supreme Court in Hanan.

Properly calculated, the net delay exceeded the 18-month Jordan ceiling by nearly three months, and the Crown failed to establish exceptional circumstances.

The convictions were quashed and a stay of proceedings entered.

The appellant sought to reduce a global nine-year sentence for armed robbery-related offences by relying on fresh evidence of pre-sentence custody lockdowns and triple bunking.

The court admitted the fresh evidence but held that harsh-custody mitigation required evidence of actual impact, which was not provided.

Applying the governing approach to custody conditions as a mitigating factor within overall fitness analysis, the panel found no error in principle and no demonstrable unfitness.

Given the appellant’s extensive robbery record, parole status at the time of the offences, and the already low-end fit sentence for armed robbery, a reduction would have made the sentence unfit.

The appellant appealed his convictions for two counts of sexual assault, arguing that his Charter rights under ss. 10(a) and (b) were violated, that he received ineffective assistance of counsel, and that the trial judge misapplied the W.(D.) framework for assessing credibility.

The Court of Appeal dismissed the appeal, finding that the appellant was adequately informed of the reasons for his arrest and the jeopardy he faced before speaking to duty counsel.

The court also rejected the ineffective assistance claim due to a lack of evidentiary foundation and found no error in the trial judge's credibility assessments, which were supported by corroborating evidence.

Two appellants challenged convictions for possession of fentanyl and crystal methamphetamine for the purpose of trafficking and possession of proceeds of crime after searches of two suspected stash houses.

The court held the trial judge erred in denying standing to advance a s. 8 Charter challenge because the prosecution theory itself alleged use and control of the properties, which had to be weighed in the totality of circumstances.

The court nevertheless rejected the argument that the verdicts were unreasonable, finding the circumstantial evidence was capable of supporting possession findings for each appellant in relation to White Oak.

The convictions were set aside and a new trial was ordered.

The appellant challenged convictions for sexual assault and sexual interference, arguing the trial judge erred in admitting a child complainant’s hearsay disclosures and related audio recordings.

The court held the trial judge properly applied the principled hearsay framework on necessity and threshold reliability, including evidence of potential trauma if the complainant testified and corroborative forensic evidence.

The court rejected arguments alleging judicial bias and improper treatment of the appellant’s exculpatory account, finding no evidentiary foundation for intervention.

The appeal was dismissed.

The appellant appealed a 12-month custodial sentence, less 5 months pre-sentence credit, imposed for disobeying a court order under the Prevention of and Remedies for Human Trafficking Act, 2017, which prohibited him from contacting or being near the complainant.

He argued the sentencing judge failed to respect the jump principle, as his prior sentences for breach of court orders had never exceeded 90 days.

The Court of Appeal dismissed the appeal, holding that the jump principle is not iron-clad and departure was warranted given the appellant's 18 prior convictions for disobeying court orders, his lack of rehabilitative progress, and the ineffectiveness of previous sanctions.

The sentence fell within the applicable range and was not demonstrably unfit.

The appellant pleaded guilty to numerous offences including break and enter, robbery, dangerous driving, and assault causing bodily harm, and received a global sentence of five years' incarceration pursuant to a joint submission.

On appeal, the appellant challenged only the lifetime driving prohibition imposed for the single count of dangerous driving, which the Crown conceded was not available under the Criminal Code.

The Court of Appeal allowed the sentence appeal in part, reducing the driving prohibition from life to the maximum available period of ten years and nine months, but declined the appellant's request for a work-related carve-out from the prohibition.

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The appellant appealed his convictions for possession of fentanyl for the purpose of trafficking, possession of the proceeds of crime, and obstruction of a peace officer.

He argued the trial judge failed to properly scrutinize the evidence of an unsavoury witness, improperly refused to draw an adverse inference against the Crown for failing to call a witness, and improperly used his silence at trial.

The Court of Appeal dismissed the appeal, finding the trial judge properly assessed the witness's credibility, identified confirmatory evidence, and correctly applied the law regarding the accused's decision not to testify.

The appellants, a wife and a family company, appealed a partial determination of competing applications regarding the company's share structure and the beneficial ownership of a property.

The Court of Appeal allowed the appeal, finding the application judge made palpable and overriding errors by failing to consider relevant evidence, including the company accountant's testimony regarding the share structure, and by failing to address the presumption of resulting trust regarding the property.

The matter was remitted to the Superior Court for a rehearing before a different judge.

The appellant appealed a motion judge's order dismissing his motion to set aside final family law orders and requiring him to obtain leave before bringing further motions until outstanding costs were paid.

He also sought to appeal a $20,000 costs order.

The Court of Appeal dismissed the appeal, finding the appellant misread the leave order and failed to identify any errors by the motion judge.

The Court awarded the respondent $10,000 in costs on a substantial indemnity basis due to the appellant's improper conduct, and directed that the costs order is enforceable by the Family Responsibility Office as a support order.

The respondent sought specific performance of an asset purchase agreement for its restaurant.

At the hearing, the application judge denied specific performance but awarded restitution for unjust enrichment, despite the claim not being pleaded in the Notice of Application.

The application judge had also indicated during the hearing that he would not entertain the unpleaded restitution claim, leading the appellant to make no submissions on the issue.

The Court of Appeal allowed the appeal and set aside the judgment, finding that the application judge's conduct denied the appellant procedural fairness and the right to know the case it had to meet.

The appellant husband appealed a trial judgment ordering him to pay an equalization payment of $353,752.

He argued the trial judge erred in refusing to exclude his 50% interest in a corporation from his net family property as a gift and inheritance from his late father.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the husband failed to meet his evidentiary burden under section 4(3) of the Family Law Act to prove the shares were actually paid for by his father and thus capable of being gifted.

The appellant law firm appealed a motion judge's decision reducing its contingency fee from approximately $4.1 million to $3.25 million following a $14 million medical malpractice settlement.

The motion judge found the 2018 contingency fee agreement was neither fair nor reasonable under the Solicitors Act, noting the client's vulnerability and the agreement's non-compliance with regulatory requirements.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's conclusion that the agreement was not fair at the time it was entered into, given the potential for fees to exceed the client's recovery and the failure to adequately explain the need for court approval.

The appellant, found not criminally responsible for criminal harassment, appealed the Ontario Review Board's disposition ordering his detention in a Secure Forensic Unit and retaining an electronics supervision clause.

The appellant argued the disposition was not the least onerous and restrictive option and that the Board improperly rejected a joint submission to remove the electronics clause.

The Court of Appeal dismissed these grounds, finding the Board's decisions reasonable given the appellant's recent elopements and worsening auditory hallucinations.

However, the appeal was allowed in part to reinstate clauses for indirectly supervised and accompanied privileges, which the Board had mistakenly removed.

In a delayed-diagnosis medical malpractice action, the defendant physician appealed findings on liability only.

The court reviewed the trial judge’s negligence and causation analysis and found no reversible error.

The appeal was dismissed and the liability determination stood.

The appellants appealed an order declaring them vexatious litigants under s. 140 of the Courts of Justice Act.

The application judge found that the individual appellant, who was the sole officer and employee of the corporate appellant, had serially engaged in vexatious litigation since 2017, including bringing proceedings outside the court's jurisdiction and failing to pay significant costs awards.

The Court of Appeal dismissed the appeal, finding no error in the application judge's application of the relevant factors and concluding that the order against both the corporation and the individual directing its litigation was entirely justified.