Kathryn N.M. van Rensburg

In a pretrial ruling in a first degree murder prosecution, the accused sought to challenge prospective jurors for cause on the basis of potential race‑based bias and requested that the court adopt a multiple‑choice formulation of the challenge question derived from prior jurisprudence.

The Crown opposed the request and argued that the traditional Parks question should be used.

The court held that a question permitting prospective jurors to answer in their own words better assists the triers in evaluating sincerity and bias than a structured multiple‑choice response.

The application to conduct a challenge for cause was allowed, but the court declined to adopt the proposed multiple‑choice wording and instead directed that the traditional Parks formulation, or a modified version used in prior authority, be employed.

The court further held that the question would not be provided in writing to jurors in the witness box.

In a pre‑trial evidentiary motion in a homicide prosecution, the accused sought to exclude several items of proposed Crown evidence on the basis that their prejudicial effect outweighed their probative value.

The court applied the common law balancing test governing admissibility and considered whether the evidence would undermine trial fairness or invite improper jury reasoning.

Several graphic autopsy photographs and circumstantial forensic evidence were permitted where they illustrated the nature of the injuries or were relevant to the location and manner of the assault.

Evidence consisting of a written message on a pacifier package was excluded from the Crown’s case due to minimal probative value and risk of prejudice, though it could be used in cross‑examination if the accused testified.

A baseball bat potentially linked to the killing and a partial fingerprint found at the scene were admitted, with concerns about evidentiary weight left for the jury.

In a joint first‑degree murder prosecution, one accused brought a pretrial motion seeking to exclude the police statements of a co‑accused or, alternatively, to sever the trials.

The applicant argued that the statements implicated him in the killing and would be highly prejudicial because the jury might improperly use them as evidence against him despite limiting instructions.

The court held that the statements were highly probative against the co‑accused and formed an important part of the Crown’s case.

Applying the principles governing severance under s. 591(3) of the Criminal Code and the presumption favouring joint trials, the court concluded that any prejudice could be managed through editing of the recordings and strong jury instructions.

The motion to exclude the statements or order severance was dismissed.

The respondent mother brought a motion challenging the jurisdiction of the Ontario court over custody proceedings, arguing that the child was habitually resident in India under s. 22 of the Children’s Law Reform Act.

The parties had travelled to India for a temporary visit, after which the mother remained there with the child.

The court found the child’s habitual residence remained Ontario because the father had not consented to or acquiesced in the child’s continued residence in India and had promptly commenced proceedings seeking the child’s return.

The court therefore assumed jurisdiction over custody and access and ordered the mother to return the child to Ontario within 60 days.

Temporary arrangements provided for the child to reside primarily with the mother upon return, with child and spousal support payable by the father.

A third party moved for summary judgment dismissing a third party claim for contribution and indemnity arising from an oil tank fuel leak at a residential property.

The claim alleged the third party was vicariously liable for the negligent installation of the tank by an employee.

The court held that the uncontroverted evidence established the employee installed the tank independently as a personal favour outside working hours and contrary to the employer’s policies.

Because the plaintiff dealt with the employee in a personal capacity and the employer’s enterprise did not contribute to the risk, vicarious liability could not arise.

Summary judgment was granted and the third party claim dismissed.

The appellant, a municipal election candidate, appealed a decision of the Ontario Court of Justice directing a compliance audit of her campaign finances.

The applicant elector had alleged the candidate undervalued her campaign office rent, thereby exceeding expense limits.

The compliance audit committee had initially refused the audit, finding no reasonable probability of a breach.

The Divisional Court allowed the appeal, holding that the OCJ judge erred in his application of the reasonableness standard of review by substituting his own interpretation of the valuation requirements under the Municipal Elections Act.

The committee's decision to accept the candidate's explanation and refuse the audit was reasonable and was restored.

The accused was charged with attempted murder and aggravated assault after attacking his former common-law spouse's new partner with a machete.

The accused admitted to the physical act but denied having the specific intent to kill, claiming he only intended to injure the victim before committing suicide.

The court rejected the accused's testimony, finding that his prior writings, preparations, and actions demonstrated a clear, deliberate plan to kill the victim.

The accused was found guilty of attempted murder.

The defendants brought a motion to amend the class definition in an Ontario securities class action to exclude persons who would be bound by a pending settlement in parallel U.S. class proceedings.

The U.S. settlement was conditional on the Ontario court granting this amendment.

The court applied the Currie factors and recognized the U.S. court's judgment approving the settlement, finding that the U.S. court had a real and substantial connection to the claims, and that the absent class members were accorded procedural fairness and adequate representation.

The court further determined that amending the class was the preferable procedure, as it would facilitate access to justice for the overlapping class members without unfairly prejudicing the remaining class members.

The motion was granted and the class definition was amended.

The offender pleaded guilty to manslaughter after originally being charged with second degree murder in the death of his common law spouse.

Psychiatric evidence established that the offender suffered from a persecutory-type delusional disorder that significantly diminished his moral culpability.

The court considered the sentencing range for domestic manslaughter and the mitigating effect of mental illness, concluding that denunciation and deterrence carried reduced weight where the offence arose from severe psychiatric impairment.

The court imposed a custodial sentence within the agreed range and addressed the proper credit for pre‑sentence custody under s. 719 of the Criminal Code following amendments introduced by the Truth in Sentencing Act.

The offender received enhanced credit of 1.2:1 for time spent in pre‑sentence custody based on the particular circumstances of detention, including mental health considerations and institutional conditions.

The moving parties sought leave to appeal an interlocutory order that granted retroactive child and spousal support and a charging order against the respondent father, who had repeatedly failed to provide financial disclosure.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions that applied different legal principles and no good reason to doubt the correctness of the motion judge's order, given the father's egregious conduct and failure to disclose.

A shareholder and director brought a crossclaim alleging that another director diverted corporate revenues and misappropriated funds through his separate company.

The court found that the defendant breached his fiduciary duties under the Ontario Business Corporations Act by diverting customer revenues, withdrawing corporate funds for personal use, and engaging in oppressive conduct that harmed the corporation and its other shareholder.

The court held that the conduct constituted fraud, breach of fiduciary duty, and oppression under the OBCA.

Damages were awarded to the corporation for diverted revenues and improper payments, and punitive damages were awarded to the shareholder.

The court also ordered the sale of the defendant’s shares to the other shareholder at fair market value as of the date of exclusion from the business.

The defendant brought a motion to strike the plaintiff's Statement of Claim, which sought to impose a resulting or constructive trust over a camp property.

The court found that the plaintiff, having been incorporated in 2011, could not maintain causes of action based on historical events that occurred prior to its incorporation.

The court struck the Statement of Claim and dismissed the action without leave to amend, but without prejudice to the commencement of a fresh proceeding under the Charities Accounting Act or the court's inherent jurisdiction over charities.

The applicants brought an application under s. 140 of the Courts of Justice Act to declare the respondent a vexatious litigant.

The respondent had commenced multiple proceedings against his employer and its employees regarding alleged workplace exposure to hazardous substances, despite his claims having been previously dismissed by the WSIB and the courts as an abuse of process.

The court found that the respondent had persistently and without reasonable grounds instituted vexatious proceedings and conducted them in a vexatious manner.

The application was granted, and the respondent was prohibited from instituting or continuing proceedings without leave of the court.

The appellant appealed a Small Claims Court order dismissing her motion for a new trial and brought a separate application challenging the same proceedings.

The respondent moved to quash the appeals, dismiss the application, and obtain an order prohibiting the appellant from bringing further proceedings without leave.

The Divisional Court dismissed the appeals, finding it lacked jurisdiction under section 31 of the Courts of Justice Act because the amount in dispute was less than the $2,500 prescribed limit.

The application was also dismissed as an abuse of process constituting a collateral attack on the Small Claims Court order.

The court declined to make a vexatious litigant order, noting such relief must be sought by way of an originating application rather than a motion, but directed that garnished funds held in court be paid out to the respondent.

In a securities class proceeding, the plaintiffs sought costs following successful motions in which they opposed summary judgment and obtained nunc pro tunc relief permitting pursuit of a statutory claim despite the expiry of a limitation period under the Securities Act.

The defendants argued that no costs should be awarded due to alleged delay by the plaintiffs, the alleged unnecessary nature of the cross‑motion, and the claim that the plaintiffs succeeded on grounds not advanced by their counsel.

The court rejected these arguments, finding no delay attributable to the plaintiffs and confirming that the cross‑motion seeking nunc pro tunc relief was appropriate.

The court held that the plaintiffs succeeded on their arguments regarding the court’s nunc pro tunc authority and the interpretation of the Court of Appeal’s Timminco decision.

Applying the general rule that costs follow the event, the court awarded the plaintiffs their claimed partial indemnity costs.

The appellant seller appealed a trial judgment awarding the respondent buyers $25,000 in damages for misrepresentation.

The seller had answered 'no' to a question about flooding on a Seller Property Information Statement, despite knowing of a severe water accumulation problem in the backyard.

The Divisional Court upheld the trial judge's findings that the misrepresentation was fraudulent or negligent, that the defect was latent, and that the 'entire agreement' clause did not exclude liability because the SPIS was incorporated into the agreement.

The appeal was dismissed.

In a family proceeding concerning custody and access to a cognitively impaired adult child, the court supervised the implementation of a prior trial judgment governing residence and access arrangements.

During the supervision process, court-appointed counsel for the child brought a motion seeking removal and replacement after the child retained different counsel and refused to continue working with existing counsel and a social worker.

The court considered the child’s wishes, the issuance of a legal aid certificate, and the ability of new counsel to fulfil the responsibilities required by the earlier judgment.

Finding it impractical for the existing representatives to continue in their roles, the court granted the motion and appointed replacement counsel.

Additional directions were provided to support the implementation of access and communication between the parents.

Following separation after an eight‑year marriage with three children, the applicant commenced proceedings after the respondent unilaterally reduced child and spousal support agreed to in minutes of settlement.

The principal issue at trial was the respondent’s income for support purposes, where evidence showed undeclared gratuities and reduced post‑separation employment.

The court found the respondent intentionally under‑employed and imputed income based on historical earnings and earning capacity.

Child support was recalculated based on imputed income, and spousal support continued at the amount agreed in the parties’ settlement.

The applicant’s claim for equalization of alleged missing cash kept in the matrimonial home was dismissed for insufficient proof.

The defendants moved for summary judgment to dismiss the plaintiffs' statutory claims for secondary market misrepresentation under the Securities Act, arguing the claims were statute-barred by the three-year limitation period in s. 138.14.

The plaintiffs had brought a motion for leave to assert the statutory claims within the limitation period, but the limitation period expired while the court's decision on the leave motion was under reserve.

The court held that it had inherent jurisdiction and authority under the Rules of Civil Procedure to grant the leave order nunc pro tunc (retroactively) to the date the leave motion was argued, applying the actus curiae maxim to prevent injustice caused by the court's delay.

The defendants' motion for summary judgment was dismissed, and the plaintiffs were permitted to amend their statement of claim effective the date the leave motion concluded.

The defendants sought leave to appeal a decision dismissing their motion to appoint a monitor over the plaintiff charity's financial affairs, as well as the associated costs award.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions under Rule 62.02(4)(a) and no good reason to doubt the correctness of the motion judge's decision under Rule 62.02(4)(b).

The court also found no error in principle in the motion judge's discretionary costs award.