Marc Rosenberg

The Superintendent of Bankruptcy appealed an order approving the fees and disbursements of a trustee in bankruptcy on a final basis prior to the conclusion of the bankruptcy.

The Superintendent argued that the court lacked jurisdiction to do so before the completion of the statutory approval process involving inspectors and the Superintendent.

The Court of Appeal dismissed the appeal, holding that section 192 of the Bankruptcy and Insolvency Act confers broad jurisdiction on the court to pass accounts and fix remuneration at such time as may be appropriate in the circumstances of a particular case.

The appellant trustee in bankruptcy retained the respondent law firm as estate solicitor to collect funds held in trust.

After the respondent performed significant work laying the foundation for recovery, the appellant terminated the retainer without cause, settled the matter, and sought to use its statutory priority under s. 136 of the Bankruptcy and Insolvency Act to pay its own fees, which would exhaust the estate and leave the respondent unpaid.

The Court of Appeal dismissed the trustee's appeal, holding that while unjust enrichment did not apply, the trustee's conduct amounted to equitable fraud.

Equity will not permit a statute to be used as an instrument of fraud, and it would be unconscionable to allow the trustee to take unfair advantage of its legal rights in these circumstances.

The applicant appealed his conviction for assault, which arose from an attack by a group of skinheads on an unidentified black man.

The trial judge convicted the applicant based on a process of elimination, relying on the testimony of an accomplice and independent witnesses to conclude the applicant was the third participant in the chase.

The Court of Appeal found the independent evidence regarding the number of participants was too contradictory and unsatisfactory to form a safe basis for conviction.

The appeal was allowed, the conviction set aside, and an acquittal entered.

The Court of Appeal for Ontario issued an endorsement on costs following an appeal.

The respondent was awarded partial indemnity costs fixed at $50,000, inclusive of disbursements and GST.

The appellant appealed a trial judgment finding it breached an exclusive supplier agreement and awarding the respondent nearly $5 million in lost profits.

The appellant argued the trial judge erred by failing to imply a term requiring customer consent, finding a breach regarding a specific contract, and excluding certain evidence on damages.

The respondent cross-appealed, seeking an additional $1 million in damages, arguing the trial judge arbitrarily increased the calculation of incremental overhead expenses.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge's factual findings were supported by the evidence and his legal conclusions were correct.

The appellant appealed his conviction and sentence, arguing that his initial detention lacked articulable cause and that evidence obtained during a subsequent search should be excluded under s. 24(2) of the Charter.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's conclusion that articulable cause existed.

Furthermore, the court held that the arrest preceding the search was lawful, and the evidence would not have been excluded even if the initial detention was unlawful.

The appellants suffered losses in their margin accounts with a securities dealer and sued the dealer.

They later sought to amend their claim to add the Investment Dealers Association of Canada (IDA) as a defendant, alleging negligence in its regulatory oversight.

The motions judge dismissed the motion, finding no reasonable cause of action.

The Court of Appeal dismissed the appeal, holding that the IDA, as a voluntary regulator, owes its duty to the public at large rather than to individual investors, and that policy considerations such as indeterminate liability negate any prima facie duty of care.

The appellant appealed his convictions, which included a charge of endangering the safety of an airplane.

The parties made a joint fresh evidence application on appeal.

Based on the fresh medical evidence, the Court of Appeal found the appellant was not criminally responsible.

The convictions were set aside, findings of not criminally responsible were substituted on all three counts, and the matter was referred to the Review Board for disposition.

The appellant appealed the sentence imposed for offences that terrorized his former wife and others, arguing for a conditional sentence.

The Court of Appeal dismissed the appeal, finding that a conditional sentence was inappropriate given the seriousness of the offences and the appellant's disregard for court orders.

The sentence was held not to be manifestly unfit.

The appellant appealed a summary judgment dismissing his action for solicitor negligence.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial on the issue of damages.

The court held that even on the appellant's new theory, there was no evidence that he suffered any damages due to the negligent advice, as the theories were based on speculation and contradicted by his own affidavit.

The appellants appealed the decision of the trial judge.

The Court of Appeal found that the trial judge's findings of fact were supported by the evidence and that the law was properly applied.

The appeal was dismissed with costs fixed at $12,500.

The appellant tenant sought to renew a cottage lease with the respondent municipality.

The municipality argued the renewal clause was void for uncertainty regarding the duration of the term, and that it lacked the power to enter the renewal without Ontario Municipal Board approval.

The application judge found the renewal clause void for uncertainty.

The Court of Appeal reversed, holding that the duration of the renewal term could be ascertained from the lease's express terms.

The Court also held that the municipality was exercising its proprietary powers, not divesting legislative powers, and that OMB approval was not required because no costs were to be raised in a subsequent year.

The respondent pleaded guilty to mischief to property and cruelty to animals after videotaping the torture and killing of a cat.

He was sentenced to 90 days intermittent on the cruelty charge and a consecutive 18-month conditional sentence for mischief.

The Crown appealed, seeking an additional 10 months of incarceration.

The Court of Appeal dismissed the appeal, finding that the trial judge properly focused on the cruelty to the cat, which carried a maximum penalty of six months, and that the total sentence adequately reflected the seriousness of the conduct.

The appellant, Congrès Ibéroaméricain Du Canada Inc., appealed an order denying it leave to intervene in an application challenging the constitutionality of the Radiocommunication Act under s. 2(b) of the Charter.

The Court of Appeal upheld the motion judge's findings that the appellant lacked a distinct perspective, did not have a real and substantial interest, lacked special expertise, and that its intervention would unduly delay and prejudice the proceedings.

The appeal was dismissed.

The College of Physicians and Surgeons appealed a Divisional Court order quashing an Amended Notice of Hearing.

During an ongoing discipline hearing against the respondent physician, the College's Registrar signed an Amended Notice of Hearing to add new allegations from a different complainant without following the statutory referral process.

The Court of Appeal dismissed the appeal, holding that professional discipline legislation must be strictly construed.

The Registrar lacked statutory authority to amend the notice or join new complaints mid-hearing, and the procedure violated the physician's right to prior notice under the Statutory Powers Procedure Act.

The Crown appealed the accused's acquittal on charges of dangerous driving and impaired ability causing bodily harm.

The Court of Appeal dismissed the appeal, finding that the trial judge properly directed himself on the elements of dangerous driving and considered the totality of the evidence.

The Court also held that the trial judge applied the correct legal test for impaired ability causing bodily harm, recognizing that even slight impairment of ability is sufficient to make out the offence.

The appellant, who was 14 years old at the time, was convicted of sexually assaulting a seven-year-old child while babysitting.

The complainant did not disclose the incident until months later, after her father, who was separated from her mother and harboured animosity toward the appellant, suggestively questioned her.

The Court of Appeal found that the trial judge misapprehended the defence's theory, which focused on the reliability of the child's account given the father's suggestive questioning, rather than deliberate fabrication.

The appeal was allowed, the conviction quashed, and an acquittal entered, as the father's unreliability made it impossible to properly assess the reliability of the complainant's disclosure.

The appellant appealed his conviction and sentence for selling cocaine, arguing that he was deprived of the effective assistance of counsel because he represented himself at trial.

The Court of Appeal dismissed the appeal, holding that ineffective assistance claims do not apply to self-represented accused.

The Court found that the appellant, though unfamiliar with criminal procedure, intelligently advanced his defence of mistaken identity and received a fair trial.

The sentence appeal was also dismissed as the sentence was not unfit.

Dalimpex Ltd. appealed a Divisional Court order staying its civil action against Agros and others pending arbitration in Poland, and a Superior Court judgment provisionally recognizing a Polish arbitral award in favour of Agros.

The Court of Appeal dismissed the first appeal, holding that the identity of the arbitral tribunal and the scope of the arbitration clause were matters best left to the arbitral tribunal where it is arguable that the dispute falls within the agreement.

The Court allowed the second appeal, setting aside the provisional judgment and adjourning the enforcement application pending the final disposition of Dalimpex's appeal of the arbitral award in the Polish courts.

The appellant appealed his sentence.

The trial judge had expected the appellant to receive appropriate medical attention, including surgery for a serious eyesight condition, while in custody.

Fresh evidence showed the appellant did not receive this treatment, resulting in deteriorating health and extremely harsh conditions of confinement.

The Court of Appeal granted leave to appeal and reduced the sentence to time served, with no probation term added due to the appellant's age and health.