Marc Rosenberg

Following an appeal, the Court of Appeal for Ontario issued a costs endorsement awarding costs to the respondent, Leather Treaty, fixed in the amount of $15,000 all inclusive.

The appellants appealed a motion judge's decision dismissing their motion to stay or dismiss the respondent's action on the basis of forum non conveniens.

The appellants argued that the motion judge misplaced the evidentiary burden by failing to require the respondent to show why the action should be heard in Ontario, given an exclusive jurisdiction clause favouring Quebec or New York.

The Court of Appeal dismissed the appeal, finding that while the motion judge may have erred in principle regarding the burden of proof under the forum selection clause, order and fairness overwhelmingly favoured Ontario as the appropriate forum due to the existence of multiple related proceedings already before the Ontario courts.

The appellant owner leased a truck to a lessee who was expressly prohibited from driving it under the lease terms and an excluded driver endorsement.

The lessee drove the truck and was involved in a single-vehicle accident, injuring the respondent passengers.

The owner appealed a motion judge's finding that it was vicariously liable under s. 192(1) of the Highway Traffic Act.

The Court of Appeal dismissed the appeal, holding that consent to possession is distinct from consent to operate.

By leasing the vehicle, the owner consented to the lessee's possession, and the owner cannot contract out of its statutory vicarious liability.

The appellant appealed the dismissal of her counterclaim and a subsequent motion to set aside the judgment.

At trial, the appellant asked the trial judge to recuse himself because his former law firm had represented one of the defendants over ten years prior.

The judge refused, noting he had no personal involvement in the file and a significant amount of time had passed.

The appellant and her counsel then left the courtroom, leading the judge to dismiss the counterclaim.

Days later, the judge realized he had a past association with another defendant and informed the parties, but later dismissed a motion to set aside the judgment as he was functus officio.

The Court of Appeal dismissed the appeals, finding no reasonable apprehension of bias and noting that the appellant's abandonment of the trial left the judge with no other option but to dismiss the counterclaim.

The insurers, having been successful on appeal, sought costs for both the appeal and the lengthy trial.

The Court of Appeal awarded the insurers their costs of the proceedings on a partial indemnity scale, fixed at $135,000.

The court also awarded the insurers their costs of the trial on a partial indemnity scale, fixed at $510,000, noting that the trial involved complex factual and legal issues and that the claimed fees were reduced to reflect an appropriate partial indemnity recovery rate of approximately 65%.

The insured was left with quadriplegia following an automobile accident in Jamaica caused by an underinsured motorist.

The insured sought coverage under the underinsured motorist endorsement of their standard Ontario Automobile Policy.

The insurer denied coverage, relying on the territorial limitation in the main policy.

The motion judge found the endorsement ambiguous and ruled in favour of the insured.

On appeal, the Court of Appeal held that the endorsement clearly incorporated the territorial limitation of the main policy.

The appeal was allowed, and the court declared that the endorsement did not provide coverage for the accident in Jamaica.

The appellant appealed the dismissal of her motion to enforce a settlement agreement reached during mediation of a defamation action.

The motion judge had found the agreement was conditional on further elaboration of the words 'disparage' and 'scientific' based on the respondents' subjective intent.

The Court of Appeal allowed the appeal, holding that the motion judge erred in relying on subjective intent rather than an objective reading of the written offer.

Viewed objectively, the written offer contained all essential terms and was not conditional.

The court declared the settlement agreement enforceable.

The appellants appealed an order striking paragraphs of their statements of defence without leave to amend.

The Court of Appeal held that while the paragraphs were properly struck for improperly relying on set-aside Commission findings and lacking clarity, the motion judge erred in refusing leave to amend.

The appeal was allowed in part to grant the appellants leave to amend their statements of defence.

The appellant appealed her convictions for aggravated assault and failing to provide the necessaries of life relating to severe injuries sustained by her premature infant.

The Court of Appeal quashed the conviction for failing to provide necessaries, finding insufficient evidence that a short delay in seeking medical attention permanently endangered the child's health.

The Court also ordered a new trial on the aggravated assault charge, holding that the trial judge misdirected the jury on the mens rea for party liability by suggesting that mere knowledge of the abuse, rather than an intention to aid or encourage the principal offender, was sufficient for a conviction.

The Court also provided guidance on the application of the 'deemed consent' defence in the context of normal child care.

The appellant employment agency placed an employee with the respondent without checking her references.

The employee subsequently defrauded the respondent.

The respondent obtained a civil judgment against the employee and then sued the appellant for negligence and breach of contract.

The trial judge found the appellant liable but reduced damages by 50 percent due to the respondent's contributory negligence in failing to supervise the employee.

The Court of Appeal dismissed the appeal and cross-appeal, finding no error in the trial judge's conclusions on causation, apportionment of liability, or the prevention of double recovery.

The appellant appealed a sentence imposed for driving offences.

The trial judge had rejected a joint submission of two years, imposing a sentence 2.5 times that length due to the appellant's horrendous record of over sixty prior convictions, including twelve for driving while disqualified.

The Court of Appeal held that while rejecting the joint submission was reasonable given the public interest, the resulting sentence was manifestly excessive.

The appeal was allowed and the total sentence was reduced to four years.

The appellant appealed the dismissal of his action.

The action had been dismissed without notice pursuant to Rule 37.07(2) after the appellant failed to comply with a previous affidavit order.

The Court of Appeal found no merit to the appeal, noting the appellant was attempting to re-litigate the affidavit order, an appeal of which had already been quashed.

The appeal was dismissed with costs.

The appellant father sought to suspend a final adoption order for his biological child by challenging the underlying Crown wardship order.

The child was apprehended at birth and made a Crown ward before the father's paternity was known.

After paternity was established, the Children's Aid Society gave the father time to present a parenting plan but ultimately proceeded with adoption when he failed to act promptly.

The Court of Appeal dismissed the appeal, holding that under s. 157(1) of the Child and Family Services Act, the final adoption order precluded any motion to set aside the Crown wardship order, and the father was precluded from bringing a status review application after the child was placed for adoption.

The appellant appealed a decision regarding her bankruptcy discharge, arguing she was entitled to an automatic discharge because the trustee in bankruptcy failed to include a recommendation on her discharge in his report.

The Court of Appeal dismissed the appeal, finding that the appellant had failed to perform several duties and tender required funds, and that the trustee's actions did not invalidate the procedure.

The Crown appealed a decision of a summary conviction appeal court judge who set aside the respondent's guilty plea and sentence.

The Court of Appeal dismissed the appeal, finding no error of law in the lower court's decision to set aside the plea based on the evidence and local circumstances.

The appellant appealed his conviction, arguing the trial judge erred in admitting his statement to police without holding a voir dire or obtaining a clear waiver.

The Crown conceded the error, and the Court of Appeal found the Crown failed to demonstrate no substantial wrong was occasioned.

The Court allowed the appeal and entered an acquittal, noting that the trial judge's reasons suggested the appellant entered the building out of curiosity and only formed the intent to commit an indictable offence once inside, whereas the law requires intent to coincide with entry.

The appellant appealed a trial judgment regarding a contract dispute and termination.

He argued the trial judge erred in calculating amounts owing, finding he contracted with a company rather than individuals, and finding there was cause to terminate his employment.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and noting that the delay in payment due to bankruptcy proceedings is governed by the Bankruptcy and Insolvency Act.

The appellant appealed his conviction and sentence.

The Court of Appeal found no error in the trial judge's appreciation of the evidence or her refusal to impose a conditional sentence.

The appeals from conviction and sentence were dismissed.

The appellant appealed her conviction, arguing the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the trial judge carefully set out the facts and reasonably inferred that the appellant aided or abetted the principal offender with the necessary mens rea.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred regarding the complainant's capacity to consent and competency to testify.

The Court of Appeal dismissed the appeal, holding that capacity to consent and competency to testify are distinct issues.

The court found that even if the trial judge erred on capacity, she accepted the complainant's version of events, which indicated no consent.

Furthermore, the appellant's own testimony showed he failed to take reasonable steps to ascertain consent.