Henry Michael Gilmour Rosenberg

The Court of Appeal for Ontario considered a motion by the Attorney General of Canada to extend the suspension of a declaration of constitutional invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The lower court had found that the "fifth working day review" for administrative segregation violated section 7 of the Canadian Charter of Rights and Freedoms due to the lack of meaningful independent review.

The respondent sought an extension to allow Parliament to enact Bill C-83, which would replace administrative segregation with "structured intervention units." The court granted the extension to April 30, 2019, finding that immediate effect would pose unacceptable danger to correctional personnel and inmates, despite expressing concern about Canada's delay in addressing the constitutional infirmity and the absence of interim measures or adequate explanation of how the proposed legislation would remedy the breach.

The plaintiffs brought a motion for certification of a class action, approval of a $1 million settlement agreement, and approval of class counsel's fees and disbursements.

The action alleged misrepresentations in WesternOne Inc.'s public documents regarding a construction project.

The court granted the motion, certifying the action, approving the settlement as fair and reasonable given the litigation risks, and fixing class counsel's fees and disbursements.

The net settlement fund, after deductions, was directed to the Access to Justice Fund via a cy-près payment due to the impracticality and uneconomical nature of direct distribution to individual class members.

The plaintiff sought leave under s. 138.8 of the Ontario Securities Act to commence an action for secondary market misrepresentation against Pretium Resources Inc. and Robert A. Quartermain.

The plaintiff alleged that the defendants failed to disclose material facts regarding conflicting expert opinions on the validity of a mineral resource estimate for the Brucejack Project, leading to a significant drop in share price.

The court granted leave, finding that the plaintiff established a reasonable possibility of success at trial.

The court determined that the concerns raised by Strathcona Mineral Services, a respected mining consultant, were material facts that a reasonable investor would consider important, despite Pretium's belief that the data was unreliable.

Furthermore, the court found a reasonable possibility that the defendants would not be able to establish the "no reasonable grounds to believe" branch of their reasonable investigation defense under s. 138.4(6) of the OSA.

Her Majesty the Queen in Right of Ontario (HMQ) sought an order to enforce an agreement between counsel to delay examinations under Rule 39.03 pending a motion to quash summonses, or alternatively, to stay the summonses.

The court applied the RJR MacDonald test for a stay, finding a serious issue to be tried regarding the quashing of summonses and the standing of HMQ/OLG to quash summonses for unrepresented witnesses.

The court determined that proceeding with examinations would cause irreparable harm to HMQ's legal interests by rendering the motion to quash moot.

The balance of convenience favoured HMQ, and the motion to stay the summonses was granted.

The plaintiffs' motion for leave to appeal an order discharging a Certificate of Pending Litigation and setting aside an interim injunction was dismissed.

The defendants, as the successful party on the motion, sought costs on a partial indemnity basis.

The court reviewed the defendants' costs outline and found the claimed amount reasonable, ordering the plaintiffs to pay costs fixed at $3,852.87 within 30 days.

The plaintiffs sought leave to appeal an order that discharged a Certificate of Pending Litigation and set aside an interim injunction.

The original order was based on the plaintiffs' failure to make full and fair disclosure of material facts, including the assumption and refinancing of mortgages by the defendants, and misrepresentation of property expense payments.

The court dismissed the motion for leave to appeal, finding no error in law by the motions judge and no matters of general or public importance to warrant an appeal.

At a Rule 48.14 status hearing in a civil action, the defendant appeared but no one appeared for the plaintiff.

The record showed repeated requests by the defendant for an amended statement of claim and particulars following an earlier judicial decision, but the plaintiff’s counsel failed to provide them in a timely manner.

The court found that the delay in advancing the action was largely attributable to the plaintiff’s counsel.

Although the court acknowledged it had authority to dismiss the action for delay, it declined to do so in order to avoid punishing the plaintiff for counsel’s conduct.

Instead, the court ordered the plaintiff’s counsel to provide a compliant amended pleading, particulars, and to engage in scheduling discussions, and directed that a further hearing address costs arising from the delay.

In a Commercial List dispute involving the valuation of shares in a pharmacy business and claims regarding termination pay, the parties brought a refusals and production motion relating to documentary disclosure.

During the hearing, the court concluded that the issues required more extensive argument than appropriate for a brief Commercial List refusals motion.

The judge provided guidance regarding production obligations concerning alleged diversion of business and the use of company funds benefiting related entities.

However, the court determined that detailed refusals disputes should be heard by a Master, whose jurisdiction includes such matters.

The motion was therefore referred to a Master for determination, with further case management to follow once the production issues are resolved.

The applicant sought declarations regarding the interpretation and enforcement of settlement Minutes and a third mortgage registered following a construction lien dispute in a residential townhouse development.

The respondent refused to provide partial mortgage discharges required to permit closings of individual unit sales, arguing the settlement lacked consideration, that defaults under a prior mortgage rendered its mortgage in default, and that the applicant breached standard charge terms.

The court rejected these defences, holding that valid consideration existed and that the mortgage and Minutes clearly required the respondent to provide partial discharges to facilitate sales.

The court granted declarations confirming the applicant’s right to register partial discharges and enjoined the respondent from withholding authorization for those discharges.

A request for a reference to determine damages was dismissed as premature.

The accused brought a pre‑trial motion seeking particulars requiring the Crown to specify the alleged misrepresentations, fraudulent conduct, and false accounting entries underlying charges relating to financial reporting of a public corporation.

The motion relied on s. 587 of the Criminal Code, arguing that the indictment lacked sufficient detail for the preparation of a defence.

The court reviewed the extensive investigations, disclosure, and related regulatory proceedings already known to the accused and concluded that they were aware of the case they had to meet.

The court held that the areas of dispute were sufficiently delineated and that further particulars were unnecessary for trial fairness or evidentiary rulings.

The application for particulars was dismissed.