Marc Rosenberg

The defendants, commercial trucking companies, were charged under s. 84.1 of the Highway Traffic Act after wheels separated from their vehicles on a highway.

The offence is one of absolute liability, expressly precluding the defence of due diligence, but carries no risk of imprisonment.

The defendants argued that the creation of an absolute liability offence violated their rights under ss. 7 and 11(d) of the Charter.

The Court of Appeal held that s. 11(d) does not prevent the legislature from eliminating a common law defence.

Furthermore, the court found no violation of s. 7, concluding that the diminished stigma attached to a regulatory offence and the absence of imprisonment do not trigger the security of the person guarantee.

The Crown's appeal was allowed and the defendant's appeal was dismissed.

Following an appeal, the Court of Appeal for Ontario issued an endorsement regarding costs.

The court fixed the costs of the appeal at $3,500, inclusive of GST and disbursements, payable to the respondent.

The father applied to reduce his child support obligations under s. 9 of the Federal Child Support Guidelines because the child was in his physical custody 50 per cent of the time.

The motion judge applied a strict formulaic set-off approach.

The Divisional Court allowed the mother's appeal, holding that the father had to adduce clear and convincing evidence to rebut the presumption that the Table amount was in the child's best interests.

The Court of Appeal allowed the father's appeal, holding that the Divisional Court erred in applying a presumption in favour of the Table amount to s. 9 cases.

The Court of Appeal also held that the motion judge erred in applying a strict formulaic approach, and instead set out a discretionary framework that considers the Table amounts, the increased costs of shared custody, and the conditions, means, needs, and other circumstances of each spouse and the child.

The father applied to reduce his child support obligation because his son was spending 50 per cent of the time with him.

The motion judge reduced the support from over $550 to $100 using a strict formulaic set-off approach.

The Divisional Court overturned this, ordering the Table amount of $688, holding there is a presumption in favour of the Table amount under s. 9 of the Federal Child Support Guidelines.

The Court of Appeal allowed the father's appeal, holding that the presumption does not apply to s. 9.

The Court set out a structured discretionary approach to s. 9, starting with a simple set-off, applying a multiplier to reflect fixed costs, and adjusting for actual spending patterns.

The father was ordered to pay $399.61 monthly.

The appellant owner entered into a construction contract with the contractor, which included a performance bond issued by the respondent surety.

The contract contained a cost-sharing provision for savings achieved during construction.

The contractor ceased operations before paying the owner its share of the savings.

The owner completed the work and claimed the savings from the surety under the bond.

The trial judge found that while the bond covered the cost savings, the owner's claim failed because it did not promptly declare the contractor in default and notify the surety, causing prejudice to the surety.

The Court of Appeal upheld the trial judge's decision, dismissing both the appeal and the surety's cross-appeal regarding the bond's coverage.

The Crown appealed an order quashing a sealing order on search warrants and informations related to an investigation into a meat packing plant.

The Court of Appeal found that the original judge committed a jurisdictional error by denying a media representative an adjournment to seek counsel.

Applying the Dagenais/Mentuck framework, the Court held that a sealing order was not justified merely to prevent the potential tainting of witness statements, but was necessary to protect the identity of a confidential informant.

The appeal was allowed to a very limited extent to permit further redactions to the informations before their public release.

The plaintiff, an experienced investor, invested in special warrants and special shares of two private companies on the advice of his broker.

The broker failed to warn him of the risks associated with these investments, including the risk that the planned initial public offerings might never take place.

The plaintiff lost his entire investment and sued the broker and her firm for negligence.

The trial judge found the defendants liable but reduced the damages by 50% due to the plaintiff's contributory negligence in signing subscription agreements without reading them.

The defendants appealed.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the broker breached her duty to warn and that her misrepresentation precluded the defendants from relying on the subscription agreements to raise an estoppel.

The mother appealed a trial judgment granting sole custody to the father and ordering that her access be supervised until she received a 'clean bill of health' from a psychiatrist and a specific psychologist was involved in the decision.

She also appealed the trial judge's order awarding the father full recovery of costs.

The Court of Appeal allowed the appeal in part, striking the conditions requiring a clean bill of health and the psychologist's involvement as they were too vague and constituted an improper delegation of judicial authority.

However, the court upheld the requirement for supervised access.

The court also refused to admit fresh evidence generated during a confidential appellate mediation process.

The appeal of the costs award was dismissed, as the mother's conduct was unreasonable and the father had made a successful offer to settle.

The appellant was convicted of first and second-degree murder.

On appeal, he argued that the trial judge erred by failing to give a Vetrovec warning regarding the principal Crown witness, an alleged accomplice who had originally been charged with the murders.

The Court of Appeal held that while the trial judge erred in law by failing to give the mandatory warning, the error was cured by the application of the proviso under s. 686(1)(b)(iii) of the Criminal Code, as the jury was sufficiently alerted to the dangers of the witness's evidence.

The court also dismissed several other grounds of appeal relating to bad character evidence, criminal records, reply evidence, post-offence conduct, reasonable doubt, and self-defence.

The appellant tenant appealed a decision interpreting a commercial lease provision regarding the reimbursement of realty taxes.

Following 1997 amendments to the Assessment Act, separate tax assessments for individual businesses in the shopping plaza were abolished, resulting in an 'en bloc' assessment for the entire property.

The landlord applied a formula in the lease designed for such an eventuality to allocate taxes.

The Court of Appeal upheld the application judge's finding that the clear language of the lease anticipated this scenario, and the formula was correctly applied since the tenant had not obtained a separate assessment.

The mother appealed a trial decision granting primary residence of the child to the father.

The parties had previously shared a split residence arrangement, which both agreed was no longer in the child's best interests as he approached school age.

The Court of Appeal found no error in the trial judge's conclusion, which relied on the stability of the father's home, the supportiveness of the father's family, and the strong relationship between the child and the paternal grandmother.

The appeal was dismissed.

The appellant appealed a trial judgment finding that his employer had just cause to terminate his employment.

The appellant had taken a lengthy vacation with no notice and without arranging a replacement, despite a clear warning not to do so.

The appellant argued that the employer condoned his misconduct by initially providing termination letters citing restructuring and offering severance pay.

The Court of Appeal dismissed the appeal, holding that the trial judge properly assessed the breakdown of the employment relationship and that the employer's initial generosity and lack of resolve did not amount to an intention to condone the misconduct.

Following the release of the judgment in two related appeals, the respondents submitted written submissions on costs.

The appellant elected not to file responding submissions.

The Court of Appeal awarded costs to the respondents for the leave application, the application to introduce fresh evidence, and both appeals, fixing the total amount at $50,000 all inclusive.

The appellant appealed an order interpreting the terms of a settlement.

The Court of Appeal found no ambiguity in the settlement terms and agreed with the motion judge's interpretation.

The appeal was dismissed with costs fixed at $7,500.

The appellant father appealed a trial judgment permitting the respondent mother, the children's primary caregiver, to relocate with the children to Germany.

The appellant argued the trial judge failed to properly assess the children's best interests and misapprehended the section 30 assessment.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the Gordon v. Goertz framework and made no palpable error in concluding that the loss of the primary caregiver would be more detrimental than the loss of familiar surroundings.

Fresh evidence regarding the appellant's employment was also rejected as it would not have altered the outcome.

The appellants appealed a trial judgment, arguing the trial judge made a palpable and overriding error by failing to reconcile the lack of documentary evidence supporting the respondent's claim for sweat equity.

The Court of Appeal dismissed the appeal, finding that the case turned on credibility and the trial judge was entitled to accept the respondent's evidence.

Applying the standard of review from Housen, the court found no palpable and overriding error in the trial judge's assessment.

The appellant corporation issued share certificates as part of a stock roll program, representing them as fully paid when they were not.

A third party pledged one of these certificates to the respondent bank as collateral for a loan.

When the borrower defaulted, the bank sought to realize on the shares, but the appellant refused to acknowledge the bank as the valid owner.

The trial judge found the bank was a good faith purchaser and granted an oppression remedy.

The Court of Appeal dismissed the appeal, holding that the bank was a good faith purchaser, the appellant was estopped from denying the validity of the certificate, and the restriction on transfer did not prevent the transfer to the bank.

The court also dismissed the third-party claim against a credit union for vicarious liability.

The appellants appealed an order allowing the plaintiffs to substitute Dr. Petrasek for a 'John Doe' defendant under Rule 26.

The Court of Appeal allowed the appeal, finding that the statement of claim did not point the 'litigating finger' at Dr. Petrasek, as there was no evidence he was responsible for the positioning of the plaintiff for surgery.

The motion to substitute was dismissed.

The appellants were convicted of second degree murder.

The Crown's case was entirely circumstantial, relying on hair comparison, footwear impressions, voice identification, and possession of the deceased's property.

On appeal, the appellants challenged the admissibility of the footwear, voice identification, hair, and jewellery evidence, as well as the reasonableness of the verdicts and the jury instructions.

The Court of Appeal found that the footwear evidence was irrelevant and improperly admitted, as it required circular reasoning to connect the appellants to the scene.

The voice identification evidence also lacked foundation.

However, the court held that the remaining admissible evidence was sufficient for a reasonable jury to convict.

The appeals were allowed, the convictions quashed, and a new trial ordered.

The parties signed Minutes of Settlement in 1996 providing for child and spousal support, which could be varied upon a material change in circumstances.

Shortly after signing, the appellant husband cashed in significant stock options and received a substantial salary increase, but failed to disclose this to the respondent wife.

The trial judge found these events constituted a material change in circumstances, implied a duty to disclose, and awarded retroactive child and spousal support.

The Court of Appeal upheld the trial judge's findings on the characterization of the stock options as income, the material change in circumstances, and the implied duty to disclose.

However, the Court allowed the appeal in part, finding the trial judge erred in awarding the Federal Child Support Guidelines table amount for the period prior to the Guidelines coming into force in May 1997.