Marc Rosenberg

The appellant, Apotex Inc., appealed a motion judge's decision allowing the respondents to amend their claim to substitute two Québec representative plaintiffs in an Ontario class action.

Apotex argued that the action lacked a real and substantial connection to Ontario, that Ontario was not the convenient forum, and that the action was an abuse of process due to parallel Québec proceedings.

The Court of Appeal dismissed the appeal, finding that Ontario had jurisdiction simpliciter because Apotex resides and carries on business in Ontario.

The court also held that it was premature to determine forum non conveniens on a motion to amend, and accepted counsel's undertaking that the Québec proceedings would not advance pending the Ontario certification decision, thereby negating the abuse of process claim.

The insured pickle manufacturer suffered substantial spoilage when a regional blackout interrupted the electricity supply to its refrigeration equipment.

The insurer denied coverage under an all-risks policy, relying on an exclusion for loss caused by 'mechanical or electrical breakdown or derangement'.

The motion judge granted summary judgment for the insured, finding the exclusion inapplicable.

The Court of Appeal dismissed the insurer's appeal, holding that 'breakdown' and 'derangement' refer to internal defects or problems within the machinery, not a failure to operate due to an external power outage.

The appellants appealed a trial judgment regarding the calculation of damages for loss of profit.

The Court of Appeal found no palpable and overriding error in the trial judge's admission of business records under section 35 of the Evidence Act, the weighing of expert opinion, or the damage calculation itself.

The appeal was dismissed with costs fixed at $6,500.

The appellant appealed his sentence, arguing the trial judge improperly considered an unproved allegation that he used a beer bottle as a weapon during an attack.

The Court of Appeal accepted this argument for the purpose of the appeal but found that, even disregarding the use of the bottle, the sentences were fully justified.

The assaults were vicious and life-threatening, and occurred in the context of serious assaults on good Samaritans who tried to intervene.

The appeal was dismissed.

The appellant sought leave to appeal his sentence.

The Court of Appeal refused leave, noting that totality was taken into account when the appellant was sentenced for further offences subsequent to this sentence.

Furthermore, three years had elapsed, the appellant was facing new charges, and the appeal would have no practical impact.

The appellants brought a motion to review an order requiring them to post security for costs.

They argued the motion judge misapprehended evidence regarding the corporate appellant's indebtedness and asset valuation.

The Court of Appeal dismissed the motion, finding no error in the motion judge's reliance on the public record and financial statements over unconfirmed assertions and a late-produced tax bill.

The appellants were ordered to post security for costs within thirty days.

The appellants appealed a judgment regarding the interpretation of an amended agreement and the definition of an encumbrance.

The Court of Appeal dismissed the appeal, finding that the clear intention of the parties was for the respondent to receive $61,000 out of the net proceeds of sale.

Costs were awarded to the respondent.

The parties entered into a pre-nuptial agreement one day before their wedding, agreeing to keep all real and personal property separate.

After a 17-year marriage, they separated and the wife successfully applied to set aside the contract at trial.

The husband appealed.

The Court of Appeal allowed the appeal, finding the trial judge erred in setting aside the contract based on an improper application of the test for misrepresentation, the absence of support provisions, and the retrospective application of section 56(4) of the Family Law Act.

A new trial was ordered.

The appellant mother sought an order in Ontario to supersede an Arizona custody order.

The motion judge declined to exercise discretion under s. 42 of the Children's Law Reform Act, focusing exclusively on the parties' prior agreement to return to the Arizona court for variations.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider other material factors, including the children's interests and the factors in s. 42(1)(b).

The matter was remitted to the Superior Court for determination on a full record.

The appellant appealed and the respondent cross-appealed a judgment of the Superior Court of Justice.

Both the appeal and the cross-appeal were dismissed on consent without costs.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal agreed entirely with the reasons of the motion judge and dismissed the appeal, awarding costs to the respondent in the amount of $1,000.

The appellants appealed an order of the Superior Court of Justice.

On consent, the Court of Appeal allowed the appeal and granted the appellants leave to amend their statement of claim in accordance with the Notice of Appeal.

Costs were awarded to the appellants in the cause on a partial indemnity basis.

The appellant sought to appeal an order refusing leave to extend the time to appeal a previous order.

The Court of Appeal dismissed the appeal, finding it frivolous and an abuse of process as the matters had been repeatedly dealt with by other courts.

The court also noted it lacked jurisdiction to order mandatory mediation.

The appellant appealed her conviction for driving 'over 80'.

At trial, the defence failed to object to the admissibility of the Intoxilizer test results until closing submissions, arguing the officer lacked reasonable and probable grounds because she referred to the screening device as an 'Alcotest' rather than an approved screening device.

The Court of Appeal held that the trial judge erred in entertaining the late Charter challenge.

Furthermore, the Court clarified that absent credible evidence to the contrary, an officer's testimony that they used an approved screening device is sufficient to establish reasonable and probable grounds for a breath demand.

The appeal was dismissed.

The appellant brought an action for constructive dismissal, alleging the employer unilaterally changed his working conditions and reduced his wages.

These events occurred after a union was certified but before a collective agreement was reached, triggering the statutory freeze period under the Labour Relations Act, 1995.

The employer successfully moved to strike the action on the basis that the Ontario Labour Relations Board had exclusive jurisdiction.

The Court of Appeal dismissed the appeal, applying the Weber analysis to find that the essential character of the dispute was a breach of the statutory freeze, which falls within the exclusive jurisdiction of the Board.

The appellant father appealed a trial decision regarding child custody and support.

He argued the trial judge erred in not ordering joint custody and parallel parenting, and in awarding lump sum child support based on imputed income.

The Court of Appeal dismissed the appeal, finding the parties' inability to agree on important decisions justified sole custody.

The court also upheld the imputed income of $50,000, noting the appellant's underemployment and failure to make proper financial disclosure.

Costs of $9,000 were awarded to the respondent.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal determined it lacked jurisdiction to hear the appeal under section 19 of the Courts of Justice Act, as the appellant's claim was granted but damages under certain heads were not awarded, keeping the amount in issue below the jurisdictional threshold.

The appeal was transferred to the Divisional Court.

The appellant landowners brought a class action claiming compensation from the respondent pipeline companies for restrictions on the use of their lands imposed by government regulation under the National Energy Board Act.

The motion judge dismissed the action on summary judgment.

On appeal, the Court of Appeal upheld the dismissal, finding that s. 75 of the Act does not create a civil cause of action for compensation, but rather provides a complete code for negotiation and arbitration.

The Court also held that the compensation provisions in the easement agreements were limited to physical damages and did not cover economic losses resulting from regulatory land use restrictions.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that the appellant had received multiple indulgences and failed to demonstrate that the proposed appeal had any merit.

Costs were fixed at $5,000.

The Minister of Finance assessed IBM Canada for payroll tax under the Employer Health Tax Act on moneys paid to expatriate employees working abroad for foreign affiliates.

The Superior Court of Justice held that while the expatriates remained employees of IBM Canada, the payments did not constitute 'remuneration paid' because the foreign affiliates reimbursed IBM Canada.

The Court of Appeal allowed the Minister's appeal, finding that the payments were made in the context of an ongoing employer/employee relationship and thus constituted 'remuneration paid' under the Act, regardless of the ultimate economic burden.

IBM Canada's cross-appeal challenging the existence of the employer/employee relationship was dismissed.