Howard C. Cohen

The applicant, a licensed racehorse trainer, sought judicial review of a decision by the Horse Racing Appeal Panel.

A horse trained by the applicant tested positive for a banned substance, resulting in an absolute liability offence.

The Panel found the applicant was not at fault and reduced his suspension from 15 days to seven days, but concluded it had no authority to waive the rule entirely.

The Divisional Court dismissed the application, finding the Panel's decision reasonable as the offence is one of absolute liability and due diligence is only relevant to penalty, not liability.

The accused, Ferenc Feher, applied to the Superior Court of Justice for a review of a detention order issued by the Ontario Court of Justice.

The original detention was based on secondary grounds due to an inadequate release plan and concerns about proposed sureties.

On review, the court considered a new proposed release plan featuring an additional residential surety and a plan for daily employment.

The court was satisfied that the revised plan adequately addressed the secondary ground concerns, leading to the overturning of the detention order.

The accused was released on terms, including three sureties pledging a total of $25,000 without deposit, continuous supervision, non-contact orders, and prohibitions on possessing firearms.

The offender, a lawyer and real estate developer, was convicted of two counts of theft over $5000 for misappropriating approximately $1.8 million in mortgage proceeds from two jointly-owned corporate projects.

The court found the offender abused her position of trust as a corporate director and engaged in a sophisticated pattern of collateral dishonesty to cover up the thefts.

Applying the principles of general deterrence and denunciation for large-scale commercial frauds, the court sentenced the offender to three years' imprisonment and imposed a fine of $220,286 in lieu of forfeiture.

Intact Insurance Company moved for summary judgment to dismiss an action brought by J.P. Towing Service & Storage Ltd. concerning towing and storage fees.

J.P. Towing cross-moved for various declarations and consolidation.

The court dismissed Intact's motion, finding that while most of J.P. Towing's claims (vexatious litigant, prohibitive order, consolidation, and monetary/punitive damages) were not viable, its claim for a declaration that the daily storage rate of $70.00, as determined in a prior Small Claims Court decision (Sherwood), was res judicata against Intact, was valid.

The court allowed J.P. Towing's cross-motion and granted summary judgment on this specific declaration, holding that Intact was bound by the Sherwood decision regarding the daily storage rate when acting on behalf of its insureds.

The accused, charged with fraud and theft relating to real estate investments, brought an application to stay the proceedings as an abuse of process and subpoenaed Crown counsel and civil litigators.

The Crown brought a motion to summarily dismiss the abuse of process application on the basis that it had no reasonable prospect of success, and applications were brought to quash the subpoenas.

The court analyzed the six grounds of alleged abuse of process, including claims of compelled self-incrimination, improper coordination between civil and criminal proceedings, and lack of independent police investigation.

The court found all grounds to be speculative, factually misconceived, or legally unfounded.

Applying the Cody and Babos tests, the court summarily dismissed the abuse of process application and quashed the subpoenas.

The Bernstein Defendants brought a motion seeking to dismiss the crossclaim of Norma Walton and Ronauld Walton (the "Waltons") for damages due to their failure to pay a $32,000 costs award.

Alternatively, they sought to stay the crossclaim until costs were paid and the Waltons posted $200,000 security for costs.

The court ordered the Waltons to pay the outstanding $32,000 costs plus an additional $12,000 for the current motion within 60 days, failing which their crossclaim for damages would be dismissed.

If these costs were paid, the Waltons were then required to post $200,000 security for costs for their damages crossclaim within another 60 days, failing which it would also be dismissed.

The Waltons' claims for contribution and indemnity were permitted to proceed irrespective of these conditions.

The appellant, Daniel Raymond Lavigne, appealed his conviction for failing to provide a breath sample and his sentence.

The trial judge found an 8-minute delay in demanding a breath sample was justified for officer safety and investigation, satisfying the "forthwith" requirement under s. 254(2)(b) of the Criminal Code.

The appeal court upheld the conviction, finding no reviewable error in the trial judge's factual findings or application of the law.

The court declined to hear the appeal from sentence, noting it was not properly advanced in the appellant's factum or oral arguments.

The defendant brought a motion for summary judgment seeking to dismiss the plaintiff's claims of defamation and libel.

The defendant argued that the statements were true, protected by qualified privilege or fair comment, and that the libel claim was barred due to lack of proper notice.

The court dismissed the motion, finding that there were genuine issues requiring a trial, particularly concerning the truth of the allegations and the presence of malice, which necessitated credibility assessments.

The court also determined that the lack of specific notice for the libel claim was not an absolute bar given the circumstances where the defendant's identity was initially unknown and the publisher promptly retracted the advertisement.

The applicant, an insurance agent, filed a request for hearing with the Financial Services Tribunal five days after the 15-day statutory deadline to dispute a proposal to revoke his licence and impose an administrative penalty.

The respondent requested the matter be dismissed for lack of jurisdiction.

The Tribunal held that it had no independent authority to extend the statutory time limit without the consent of both parties under the Statutory Powers Procedure Act.

As the respondent did not consent, the Tribunal dismissed the request for hearing without a hearing.

The accused was charged with trafficking cocaine, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime.

Following a police surveillance operation, the accused was observed meeting with a known drug purchaser at a mall, exchanging a bag containing drugs for a bag containing over $42,000 in cash.

The court found the accused guilty on all counts, concluding beyond a reasonable doubt that he had knowledge of the drugs and the proceeds of crime, and alternatively was willfully blind.

The court also admitted intercepted communications under the co-conspirator's exception to the hearsay rule.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had set aside a Hearing Panel's 18-month suspension and substituted a penalty of licence revocation for professional misconduct.

The Appeal Panel had also overturned the dismissal of two particulars of misconduct, finding the appellant had misled investigators and filed false reports.

The Divisional Court dismissed the appeal, holding that the Appeal Panel's decisions on both the penalty and the findings of misconduct were reasonable and entitled to a high degree of deference.

The Crown applied for a pre-trial ruling on the voluntariness of statements made by the defendant, C.C., during a police interview concerning charges of sexual assault and sexual interference.

The defence sought to exclude statements made after C.C.'s arrest, arguing they were involuntary due to emotional, physical, and psychological condition, oppressive questioning, and inducements.

The court found no evidence that C.C.'s will was overborne, noting his consistent reliance on the right to silence regarding the allegations, the non-oppressive nature of the interview, and the absence of a "quid pro quo" inducement.

The court ruled the statements were voluntarily made and admissible.

Following a finding of civil fraud against the respondents, the applicants sought costs on a substantial indemnity basis.

The court awarded the applicants $550,832.92 in substantial indemnity costs due to the respondents' frivolous counter-application, concealment of information, and failure to deliver financial information.

The court also resolved costs claims from other involved parties, awarding various amounts on partial and substantial indemnity scales based on their respective offers to settle and participation in the proceedings.

The applicants, Dr. Bernstein's corporations, moved for judgment against Norma Walton, Ronauld Walton, and their companies for $66.9 million, alleging civil fraud and fraudulent misrepresentation, and sought a declaration that the debt would survive bankruptcy.

The Waltons brought a counter-application for damages and a cross-motion for a trial on the fraud issue.

Christine DeJong Medicine Professional Corporation and Gideon and Irene Levytam also sought relief regarding their investments.

The court found the Waltons liable for civil fraud and fraudulent misrepresentation, awarding the applicants $66.9 million plus interest, and declared the debt non-dischargeable in bankruptcy under s. 178(1)(d) and (e) of the BIA.

The Waltons' counter-application was struck as frivolous and vexatious.

The applicants' claims against Schedule C Companies for knowing assistance and knowing receipt were dismissed.

DeJong was granted constructive trusts over specific Schedule C properties for their investments due to the Waltons' breach of fiduciary duties.

The appellant appealed his convictions and sentences for sexual interference and invitation to sexual touching involving an 11-year-old complainant.

The appellant argued the trial judge misapplied the W.(D.) framework, misapprehended evidence, rendered an unreasonable verdict, provided insufficient reasons, and imposed a harsh sentence.

The summary conviction appeal judge dismissed all grounds of appeal, finding no error in the trial judge's credibility assessments or application of legal principles.

The consecutive sentences totaling ten months were upheld as fit, considering the totality principle and the aggravating factor of the victim's age.

The appellant appealed his conviction for assault and his suspended sentence.

At trial, he admitted punching the complainant but claimed self-defence, alleging she was the aggressor.

The trial judge rejected this defence, relying on neighbours' testimony that the complainant was on the ground in a defensive position while the appellant punched her, concluding the force used was excessive.

The Court of Appeal found no error in the trial judge's assessment of the evidence and dismissed the conviction appeal.

Leave to appeal the sentence, which was exactly what the appellant had requested at trial, was refused.

A ruling on the voluntariness of a statement made by an accused charged with sexual offences against a child.

The accused was interviewed by police for approximately three hours following his arrest.

The Crown sought to admit the entire statement at trial, while the defence argued that portions of the statement were involuntary due to police inducements and the use of coercive interrogation techniques.

The court found that the initial portion of the statement was voluntary but excluded statements made after the police officer presented the accused with a stark choice between admitting to a one-time mistake or being investigated as a serial predator, which constituted a quid pro quo inducement that overbore the accused's will.

A youth was charged with invitation to sexual touching contrary to s. 152 of the Criminal Code and committing an indecent act by exposing his genital organs to a person under the age of 16 years contrary to s. 173(2) of the Criminal Code.

The allegations arose from incidents that occurred when the complainant was between two and five years old while attending an unlicensed daycare operated by the accused's mother.

The complainant did not disclose the incidents until Grade 5, when prompted by a classroom discussion about inappropriate sexual touching.

The trial judge found the complainant's testimony credible and reliable, and rejected the accused's denials as marked by inconsistencies and implausibilities.

The accused was convicted on both counts.

The plaintiff brought an undefended action seeking repayment of loans advanced to the defendants for financing a film project.

The loans were evidenced by a promissory note executed in 1997, providing for repayment of $78,000 with interest at 21% per annum.

Evidence established that the corporate defendant and its principal executed the promissory note and that the individual defendant personally guaranteed the debt.

The court accepted testimony and documentary evidence confirming the loan, partial repayments totalling $10,500, and an acknowledgment of the debt.

Judgment was granted for the outstanding balance of $67,500 plus contractual interest and substantial indemnity costs.

Addendum to a previously released judgment addressing a limitations defence raised by the defendant.

The defendant argued that the action was barred by the Limitations Act, 2002.

The court held that the combined effect of s. 24(5) of the Limitations Act, 2002 and ss. 45(1) and 50(1) of the predecessor Limitations Act, R.S.O. 1990 meant the action was not statute barred.

The court relied on appellate authority interpreting the interaction of the two statutes.