Kathryn N.M. van Rensburg

The Court of Appeal for Ontario considered an appeal by Peter Tak Ming Lee and Mun Chung Leung from a judgment granting York Region Standard Condominium Corporation No. 972 possession of their unit and leave to issue a writ of possession, unless the appellants discharged a lien.

The appeal raised issues of trial judge bias, disregard of evidence, and the validity and calculation of the lien.

The court rejected the bias and evidentiary grounds, but found a calculation error in the lien amount, requiring a reduction.

The appeal was allowed in part, with no order as to costs.

The appellants, Jordan Rudiger Zukowski and Rudi Heinz Edwin Zukowski, appealed an order granting summary judgment to the respondent, MarshallZehr Group Inc., regarding the enforceability of a personal guarantee for a project financing loan.

The Court of Appeal dismissed the appeal, finding no error in the motion judge’s refusal to permit cross-examination of the respondent’s representative and no reviewable error in the finding that the respondent did not act in bad faith.

The court held that the issues raised were properly resolved on the record and that the personal guarantee was valid and enforceable.

The Court of Appeal for Ontario dismissed the appeal by the appellants, finding no palpable and overriding error or extricable legal error in the motion judge’s interpretation of minutes of settlement incorporated into a court order.

The court held that the motion judge correctly applied contractual interpretation principles, considered the relevant factual matrix, and properly refused to rely on subjective and contradictory evidence.

The appellants’ argument regarding severance of joint tenancy was rejected.

Costs of $8,000 were awarded to the estate.

The Court of Appeal for Ontario dismissed the appeal of Gavin Bertsch from the Superior Court’s dismissal of his wrongful dismissal action against Datastealth Inc. The court upheld the enforceability of the employment agreement’s termination provision, which limited Bertsch’s entitlements on termination to the minimum requirements under the Employment Standards Act, 2000 (ESA).

The court found the clause to be unambiguous and compliant with the ESA, precluding any claim for common law damages.

Costs of $10,000 were awarded to the respondent.

The Court of Appeal for Ontario dismissed the appeal of Carmela and Vincenzo Di Trapani from a costs order made after an 18-day civil jury trial regarding injuries sustained by William “Bill” Pye in a 2016 motor vehicle accident.

The trial judge awarded Pye costs of $995,854.50 and prejudgment interest at 3%.

The appellants argued the trial judge failed to scrutinize fees and disbursements, did not apply reasonableness and proportionality, and erred in awarding a higher prejudgment interest rate.

The Court of Appeal found no error in the trial judge’s approach, holding the costs and interest rate were reasonable and supported by the record.

The Court of Appeal for Ontario dismissed the appeal of Aliamisse O. Mundulai from a final order in a family law dispute with Ying Huang.

The appeal concerned parenting, property, and financial issues following the parties' separation.

The court found no reversible error in the trial judge’s decisions regarding the child’s therapy, beneficial ownership of an office unit, and the treatment of the respondent’s pension for equalization purposes.

Costs were awarded to the respondent.

The Court of Appeal for Ontario dismissed the Law Society of Ontario’s appeal regarding the respondent’s application for licensure as a paralegal.

The court found that the tribunals below properly considered the respondent’s criminal offence and professional misconduct, and that there was no error in their assessment of her rehabilitation and good character.

The appeal was dismissed with costs to the respondent.

The Court of Appeal for Ontario dismissed motions to reconsider its earlier refusal to grant leave to appeal two decisions related to an arbitral award and its enforcement.

Dr. Bokhari argued that the panel may have been unaware that a key precedent (Aroma) was under reserve at the time of the refusal.

The court held that the relevant rules did not permit reconsideration based on subsequent jurisprudence, only on new facts, and that the interests of justice did not favour reconsideration.

The motions were dismissed.

The appellant, William Gillen, appealed his convictions for trafficking fentanyl, possession of fentanyl and cocaine for the purpose of trafficking, and possession of proceeds of crime.

The appeal focused on the trial judge’s instructions to the jury, specifically whether the judge usurped the jury’s fact-finding role, encouraged propensity reasoning, or permitted the jury to use text messages for a prohibited purpose.

The Court of Appeal found no error in the trial judge’s instructions and dismissed the appeal.

The Court of Appeal for Ontario allowed Wesley James’s appeal in part, setting aside his convictions for possession for the purpose of trafficking fentanyl and crack cocaine due to Charter breaches and police misconduct, and entering acquittals on those charges.

The court found that the trial judge erred in the Grant analysis by failing to properly consider the seriousness and cumulative effect of the Charter breaches and police dishonesty, and by not conducting a final balancing of the Grant factors.

The conviction for trafficking crack cocaine was upheld as the verdict was not unreasonable on the evidence.

The appellant, Jerome Williams, appealed the Ontario Review Board’s decision ordering his continued detention in the High Secure Provincial Forensic Programs Division at Waypoint Centre for Mental Health Care.

Williams argued that he no longer posed a significant threat to public safety and sought an absolute discharge, or alternatively, a transfer to a medium secure facility.

The Court of Appeal for Ontario dismissed the appeal, finding that the Board’s assessment of risk and the necessity of continued detention at Waypoint were reasonable and supported by the evidence, particularly in light of ongoing concerns about medication compliance and substance use.

The appellant appealed her convictions for fraud, uttering forged documents, and breach of probation arising from the purchase of jewellery using fraudulent cheques.

On appeal, she sought to introduce a bank statement as fresh evidence to show she believed she had sufficient funds.

The Court of Appeal declined to admit the fresh evidence, finding it was not genuine based on a sworn statement from a bank investigator.

The Court also rejected the appellant's argument that the trial judge failed to conduct a proper analysis of the circumstantial evidence regarding her mental state, concluding the evidence of her fraudulent intent was overwhelming.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

Following an appeal that was allowed in part with divided success, the parties made written submissions regarding costs in the court below.

The appellants sought to set aside a $20,000 costs award against them, while the respondent argued the costs order should remain.

The Court of Appeal held that the divided success on appeal informed the appropriate disposition of costs below.

The court set aside the $20,000 costs award and ordered no costs of the motion in the court below.

The appellant, an inmate, pleaded guilty to intimidating a justice system participant and uttering threats.

On appeal, he sought to strike his guilty pleas due to procedural irregularities, including a failure to properly arraign him on one count, the failure to apply the Kienapple principle to stay the threatening count, and an insufficient plea inquiry.

The Court of Appeal admitted fresh evidence indicating the appellant was unmedicated and influenced by correctional officers to plead guilty to secure a federal transfer.

The Court allowed the appeal, struck the guilty pleas, and ordered a new trial, finding that maintaining the pleas risked a miscarriage of justice.

The appellant was convicted of robbery following a home invasion and sentenced to four years' imprisonment.

On appeal, he argued the trial judge erred by relying on the rejected testimony of a co-accused and failing to caution himself about unsavoury witness evidence.

He also sought to introduce fresh DNA evidence and appealed his sentence based on the parity principle.

The Court of Appeal dismissed the appeals and the fresh evidence motion, finding no error in the trial judge's assessment of the circumstantial evidence or the differing sentences imposed on the co-accused based on their respective moral culpability.

The appellant appealed his conviction for historical indecent assault against his stepson, arguing the trial judge engaged in uneven scrutiny of the evidence and provided insufficient reasons regarding the reliability of the complainant's evidence.

The Court of Appeal found no error in the trial judge's assessment of the evidence, including the rejection of the appellant's exculpatory explanations.

The court also held that the trial judge's reasons sufficiently addressed the reliability of the complainant's evidence.

The appeal was dismissed.

In supplementary reasons, the Court of Appeal addressed an error in the application judge's formal judgments regarding the continuation of a right of survivorship after a joint tenancy was severed into a tenancy in common.

The court granted the respondent leave to cross-appeal without a formal notice, varied the judgments to extinguish the right of survivorship, and issued a vesting order transferring 100% of the beneficial interest in the property to the respondent as the beneficiary of a resulting trust.

The appellant appealed his convictions for production and possession of methamphetamine for the purpose of trafficking, arguing the trial judge erred in failing to exclude evidence under s. 24(2) of the Charter.

The appellant claimed his ss. 10(a) and 10(b) rights were breached due to a delay in providing a Vietnamese interpreter upon his arrest.

The Court of Appeal found no error in the trial judge's application of the Grant factors, noting the delay was an isolated mistake, the appellant was not mistreated, and the evidence was obtained pursuant to a valid search warrant issued prior to the arrest.

The conviction appeal was dismissed, and the sentence appeal was abandoned.

The appellant appealed her convictions for fraudulent personation and offences related to a forged certificate of stay of probation.

She argued the circumstantial evidence was insufficient to prove she prepared and sent the documents, and that the trial should have been heard in Superior Court because a testifying lawyer allegedly acted as a second prosecutor.

The Court of Appeal dismissed the conviction appeal, finding the trial judge reasonably concluded guilt was the only logical inference, and rejected the jurisdictional argument as meritless.

The sentence appeal was dismissed as abandoned.

The appellant pleaded guilty to several offences, including possession for the purpose of trafficking in fentanyl and cocaine, and was sentenced to a global term of nine years.

He appealed the sentence, arguing it was excessive and seeking a reduction based on fresh evidence of lockdown conditions and triple bunking.

The Court of Appeal found no error in the sentencing judge's reasons, noting the aggravating factors such as the nature and quantity of the drugs and the appellant's criminal record.

The court admitted the fresh evidence but declined to reduce the sentence, concluding it remained fit.