Howard C. Cohen

The plaintiff commenced a civil action seeking repayment of an alleged unsecured loan dating back to the mid‑1990s, together with interest.

The defendant denied any personal indebtedness and asserted that certain payments referenced by the plaintiff were donations or related to third‑party obligations.

The court considered documentary evidence including cheques, correspondence, and a handwritten acknowledgment dated April 9, 1997, as well as witness testimony regarding the parties’ financial dealings.

The court accepted independent witness evidence that the defendant acknowledged a personal debt in 1997 but rejected certain amounts claimed as personal loans where the payments appeared to be donations to a third‑party organization.

Judgment was granted for the plaintiff in the reduced amount of $17,724 with interest at 21% from September 9, 1997.

The appellants appealed an order appointing a Receiver Manager over several corporations, arguing that secured creditors should have received notice and that the application judge improperly exercised his discretion.

The Court of Appeal dismissed the appeal, finding that the appellants had not requested notice for secured creditors at the original hearing and that the application judge's findings of oppression and misappropriation of funds justified the extreme remedy of appointing a Receiver Manager.

The applicants sought further relief in an ongoing Commercial List proceeding involving the appointment of a manager over several corporations.

A respondent argued that the court was functus officio because the earlier order appointing the manager was final, invoking cause of action estoppel.

The court rejected this argument, emphasizing that receivership or management orders are inherently ongoing and include come‑back clauses allowing parties to seek further directions.

The judge held that such orders are intended to function as a “living declaration,” and that additional relief or amendments to the application could be considered without requiring a new proceeding.

The preliminary objection was dismissed and the court retained jurisdiction to hear further matters in the proceeding.

The defendants moved to set aside a default judgment obtained by the plaintiffs in a fraud action.

The court found that the default judgment had been obtained after procedural irregularities, including the plaintiffs noting the defendants in default and obtaining judgment without notice while a motion to strike the statement of claim was pending and after the action had been dismissed as abandoned.

Relying on established authority, the court held that where a default judgment is obtained while a motion affecting the pleadings is before the court, the defendant is entitled to have the judgment set aside as of right without demonstrating a defence on the merits.

The court declined to require the defendants to pay security despite the plaintiffs’ concern about a potential bankruptcy affecting the fraud claim.

The judgment was set aside and procedural deadlines were imposed requiring the defendants to either bring their motion to strike or deliver a statement of defence within 30 days.

The applicant, owner of the Scruffy Duck Restaurant, appealed a Notice of Proposal by the Registrar of Alcohol and Gaming refusing to remove conditions from its liquor licence.

The conditions restricted indoor and patio hours and prohibited live or amplified music on the patio.

The applicant argued a change in circumstances since purchasing the establishment in 2008 and that removing conditions was not contrary to the public interest.

Objectors raised concerns about noise and patron behaviour.

The Tribunal found a change in circumstances, noting the new owners had no compliance issues and had implemented sound control measures.

The Tribunal allowed the appeal in part, extending indoor and patio hours, but retained the prohibitions on live and amplified music on the patio due to proximity to residential neighbours.

The appellant was convicted by a jury of trafficking in cocaine and possession of property obtained by crime.

He appealed his conviction, alleging five errors in the trial judge's charge to the jury, including a slip of the tongue where the judge referred to him as 'Mr. Guilty', the absence of a limiting instruction on bad character evidence, and errors in the W.D. instruction.

The Court of Appeal dismissed the appeal, finding no merit to the alleged errors and concluding that the jury was properly instructed and no miscarriage of justice occurred.

The accused pleaded guilty to three counts of possession of firearms while subject to a lifetime weapons prohibition order contrary to s. 117.01(1) of the Criminal Code.

The defence sought a conditional sentence based on rehabilitation efforts and compliance with bail conditions over several years.

The Crown argued that denunciation and deterrence required a custodial sentence given the deliberate breach of a lifetime prohibition order and the presence of stolen firearms and ammunition.

The court held that imposing a conditional sentence would constitute an error in principle because it would inadequately address denunciation and deterrence for breaches of weapons prohibition orders.

A custodial sentence was imposed together with probation and a forfeiture order.

The appellant, a standardbred licensee, appealed a Notice of Proposed Order issued by the Director of the Ontario Racing Commission suspending his licence for 5 years and imposing a $10,000 fine.

The suspension was based on the appellant making false statements on licence applications regarding pending charges and past suspensions, as well as attempting to race a horse that was unfit and on the long-term veterinarian's list.

The Commission confirmed the Director's decision to suspend the appellant for 5 years, finding his actions demonstrated willful blindness and a lack of integrity, but reduced the fine to $5,000 on compassionate grounds.

The appellant appealed his conviction, arguing the trial judge erred in her credibility assessments and misapprehended evidence.

He also sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding the trial judge gave substantial reasons for accepting the complainant's evidence and that any minor misapprehension of peripheral evidence did not affect the overall credibility assessment.

The court also declined to admit the fresh evidence, noting it would not assist the appellant's credibility.

The appellant appealed his custodial sentence, arguing the trial judge erred by not imposing a conditional sentence.

He submitted the trial judge failed to give sufficient weight to the fact he drove to flee an attacker, the victim's prognosis, and his compliance with stringent bail conditions.

The Court of Appeal dismissed the appeal, finding the trial judge thoroughly balanced the mitigating factors against the catastrophic injuries caused to the child victim and the appellant's choice to continue driving when he could have stopped.

The appellant, a licensed driver/trainer/owner, requested a hearing after a horse he trained tested positive for Darbepoetin-Alpha (Aranesp) during out-of-competition testing.

The Executive Director of the Ontario Racing Commission had proposed a 12-year suspension and a $40,000 fine.

At the hearing, the parties presented a joint resolution agreement.

The Commission accepted the agreement, imposing a 12-year suspension and a reduced fine of $25,000, noting the appellant's lower level of industry involvement compared to previous cases.

The Registrar of the Alcohol and Gaming Commission of Ontario and the licensee agreed to rescind the interim suspension of the licensee's liquor licence following a fatal shooting outside the premises.

The Board ordered the suspension rescinded subject to strict conditions, including mandatory video surveillance, third-party security personnel, patron searches, and a 4:00 a.m. clearing time.

The appellant, a standardbred licensee, appealed penalties imposed for his driving actions.

At the hearing, his counsel sought an adjournment due to alleged incomplete disclosure and the appellant being out of the country.

The Ontario Racing Commission granted the adjournment to allow the appellant to attend, but ruled that the Administration had satisfied its disclosure obligations.

The Commission directed that the hearing be rescheduled for January and ordered that the stay of penalty would terminate if the matter did not proceed on that date.

The licensee, a standardbred driver, appealed a Notice of Proposed Order and an Order of Immediate Suspension issued by the Executive Director.

At the hearing, the licensee requested an adjournment, which was granted on consent.

The hearing was rescheduled for November 2009.

The applicant, charged with first-degree murder, sought a review of a detention order under s. 680 of the Criminal Code.

The reviewing judge upheld the detention on both the secondary and tertiary grounds.

The applicant had a history of violent behaviour and there were concerns for witness safety, justifying detention on the secondary ground.

Furthermore, the tertiary ground was met as the combined effect of the strength of the Crown's case and the circumstances of the offence made detention necessary to maintain public confidence in the administration of justice.

The application was dismissed.

The appellant appealed the trial judge's findings of fact and credibility assessments, as well as the costs award.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual findings were reasonably open to him on the evidence and that the appellant failed to demonstrate palpable and overriding error.

The court also upheld the costs award, noting that costs should follow the result of the trial.

The appellant, a wholesale distributor of fresh fruit, suffered produce spoilage due to a widespread power failure that caused its refrigeration equipment to stop working.

The respondent insurer denied the claim based on exclusion clauses for mechanical/electrical breakdown and changes of temperature.

The motion judge granted summary judgment for the insurer and refused the appellant's request for an adjournment to file evidence on the reasonable expectations of the parties.

The Court of Appeal dismissed the appeal, finding that the refusal to grant an adjournment would not have affected the result and that the change of temperature exclusion clause was clear and unambiguous.

The appellant sought leave to appeal his conviction for dangerous driving, arguing the verdict was unreasonable.

The Court of Appeal found no error of law, holding that the trial judge was entitled to accept the complainant's evidence regarding how the appellant's vehicle contacted him.

Leave to appeal was refused.

The appellants appealed a trial judgment, arguing that the trial judge's remarks during closing submissions created a reasonable apprehension of bias and that the respondent failed to mitigate damages.

The Court of Appeal dismissed the appeal, finding that the trial judge's comments were merely instructive cautions to junior counsel and did not indicate pre-determination.

Furthermore, the court upheld the trial judge's finding that the respondent's decision not to proceed with the property purchase was driven by uncertain septic system repair costs, meaning the duty to mitigate was not engaged.

The appeal was dismissed with costs fixed at $10,000.

The appellant appealed his conviction and sentence.

On the conviction appeal, he argued the trial judge erred in drawing an inference of consciousness of guilt from his suicide attempt, in assessing the complainant's cross-examination, and in using prior consistent statements.

The Court of Appeal dismissed the conviction appeal, finding no errors by the trial judge and rejecting the proposed fresh evidence under the Palmer test.

However, the Court allowed the sentence appeal, finding the trial judge focused almost exclusively on the offence itself.

In light of fresh evidence regarding the appellant's medical condition, the sentence was varied to three years.