Marc Rosenberg

The City of Toronto appealed a decision declaring its amending by-law unlawful.

The by-law purported to retroactively and prospectively require the municipal pension plan to pay the City's internal administrative costs out of the pension fund.

The Court of Appeal dismissed the appeal, holding that the pension plan constituted a true trust in favour of the employees.

The court found that the City did not reserve a power of revocation, and a general power of amendment does not include the power to revoke.

Therefore, the by-law constituted an unlawful partial revocation and breach of trust.

Following the dismissal of the appellants' appeals, the respondents sought costs of $44,648.23 for the appeal, a fresh evidence application, and two motions.

The Court of Appeal found the requested amount excessive, noting the issues involved and that respondents' counsel had acted throughout the Superior Court proceedings.

The Court fixed total costs at $21,500 on a partial indemnity basis.

The applicant sought a review of a Superior Court decision denying him bail on a murder charge.

The Court of Appeal found that significant changes in circumstances had occurred since the initial bail hearing, including the reduction of the charge to second degree murder, clarification that his travel to the US was with police permission, and the fact that the Crown's case was not overwhelming.

The application was granted and the applicant was released on conditions.

The appellant was convicted of sexual assault.

At trial, the Crown introduced evidence of the appellant's propensity for violence while intoxicated.

The trial judge did not provide a specific limiting instruction to the jury regarding this evidence.

Additionally, the trial judge permitted both counsel to comment on the evidence to the jury after the jury charge was completed.

The Court of Appeal held that the propensity evidence was inadmissible and highly prejudicial, and the failure to provide a limiting instruction was a reversible error.

The post-charge comments by counsel were also found to be improper.

The conviction was set aside and a new trial ordered.

The applicant, JPMorgan Chase Bank, sought leave to appeal.

The Court of Appeal for Ontario refused leave to appeal for oral reasons and awarded costs on a partial indemnity basis to the respondents, totaling $22,500.

The appellant, representing unsecured noteholders, sought leave to appeal orders approving a CCAA reorganization plan for the GT Group of Companies.

The appellant argued the plan was unfair because it excluded the parent company, required the parent to transfer assets to subsidiaries, and deprived noteholders of rights to sue.

The Court of Appeal dismissed the application for leave, finding the asset transfer complaint illusory as the assets would be lost to secured creditors anyway, and the loss of rights to sue unsubstantiated.

The Court also noted the appellant's delay and failure to propose an alternative plan.

The appellant, Union Gas Limited, appealed an order made in CCAA proceedings regarding its right to set off amounts owed by the respondent, Algoma Steel Inc., against a rebate owed to the respondent.

The motions judge had denied legal set-off and limited equitable set-off to only one of two contracts.

The Court of Appeal upheld the decision on legal set-off but allowed the appeal regarding equitable set-off, finding a close connection between the contracts that made it manifestly unjust to enforce payment of the rebate without taking into account the full cross-claim.

The appellants, indirect purchasers of homes containing concrete bricks coloured with the respondents' iron oxide pigment, sought to certify a class action alleging a price-fixing conspiracy.

The motion judge certified the action, but the Divisional Court set aside the certification.

On appeal, the Court of Appeal upheld the Divisional Court's decision, finding that the appellants failed to provide a sufficient evidentiary basis to show that loss could be proved on a class-wide basis.

Because liability required individual proof of loss, a class action was not the preferable procedure.

The appellant, a young person, fled from police and knocked on the door of an acquaintance's residence.

A child let him in, and the appellant asked him to pretend he lived there before going upstairs, where he was subsequently arrested.

He was convicted of forcible entry under s. 72(1) of the Criminal Code.

On appeal, the Court of Appeal held that the offence of forcible entry requires a taking of possession that interferes with the peaceable possession of the occupant, and that the manner of entry itself must be likely to cause a breach of the peace.

As the appellant entered peacefully with permission and did not interfere with the occupants' possession, the elements of the offence were not met.

The appeal was allowed and an acquittal entered.

The Crown appealed a one-year sentence imposed on a 19-year-old first offender who pleaded guilty to importing almost four kilograms of cocaine.

The trial judge had departed from the established sentencing range of six to eight years, citing legislative changes and the offender's belief that he was importing marijuana.

The Court of Appeal held that the trial judge erred in disregarding the established range, and that a three-year sentence would have been appropriate given the mitigating factors.

However, because the offender had already served the custodial portion of his sentence and was employed, the court declined to reincarcerate him and dismissed the appeal.

The appellant was injured in a motor vehicle accident.

In a prior arbitration for accident benefits, the arbitrator found the appellant was uninsured at the time of the accident.

The appellant subsequently brought an action against the tortfeasor for negligence and against his insurer for breach of contract and negligence.

The motions judge dismissed both actions on the basis of abuse of process and issue estoppel.

The Court of Appeal allowed the appeal, finding that the tort action was separate from the contractual dispute, and the negligence claim against the insurer raised different issues than those decided in the arbitration.

The appellant sued her gynaecologist for negligence after she fainted and injured her ankle while left unattended following a pelvic examination.

A jury found the physician was not negligent and the action was dismissed.

The appellant appealed, arguing that defence counsel's opening and closing addresses were inflammatory and that the trial judge's charge to the jury was inadequate.

The Court of Appeal dismissed the appeal, finding that the trial judge's correcting instructions adequately remedied any prejudice from counsel's inappropriate comments, and that the jury charge, while not perfect, sufficiently identified the issues and related them to the evidence and legal principles.

The appellant client was awarded fixed costs in matrimonial proceedings.

Her solicitor claimed the fixed costs as its solicitor and client account, and the client applied to have the account assessed.

The motion judge ruled that the doctrine of issue estoppel applied.

On appeal, the Court of Appeal held that neither issue estoppel nor abuse of process applied, as the solicitor and client are allied in interest when costs are fixed but opposed in interest on an assessment.

The appeal was allowed, permitting the client to have the accounts assessed.

The appellant, a Canadian citizen, was convicted of offences in Wisconsin and transferred to Texas, where he escaped custody.

He was arrested in Canada on a provisional warrant.

The Minister of Justice issued an authority to proceed for the Wisconsin charges, to which the appellant consented.

Later, a second authority to proceed was issued for the Texas escape charge, and a straight arrest warrant was executed.

The appellant appealed his committal on the Texas charge, arguing he should have been discharged under s. 14 of the Extradition Act due to missed time limits, and that the second proceeding was an abuse of process.

The Court of Appeal dismissed the appeal, holding that s. 14 applies only to provisional arrests, not straight arrests under s. 16, and that the second proceeding was not an abuse of process as no assurances were given that the Texas charge would be dropped.

The appellant solicitor was retained by the respondent for medical malpractice lawsuits.

After a dispute over unpaid fees, the respondent granted mortgages on her properties as security.

When the respondent failed to pay, the appellant commenced power of sale proceedings.

The respondent obtained an injunction and a motions judge ordered the discharge of a $25,000 mortgage upon payment of funds into court.

The Court of Appeal allowed the appeal in part, holding that the mortgage should not be discharged unless principal, interest, and costs were paid, and clarified that the funds paid into court stand as security for the appellant.

The appellant, a Nigerian citizen, was committed for extradition to the United States for breach of supervised release conditions.

He appealed the committal order and sought judicial review of the Minister of Justice's surrender order.

The Court of Appeal dismissed the committal appeal but granted the application for judicial review.

The Court found that the Minister failed to consult with the Minister responsible for immigration regarding the appellant's refugee claim, failed to consider the lengthy time spent in Canadian custody, and failed to address the appellant's claim that he left the United States at the direction of immigration authorities.

The matter was remitted to the Minister for redetermination.

The appellant insurer appealed a jury verdict awarding the respondent insured disability benefits, aggravated damages, and punitive damages following the denial of a disability claim.

The Court of Appeal allowed the appeal and directed a new trial, finding fatal defects in the trial judge's charge to the jury.

Specifically, the charge on aggravated and punitive damages was wholly inadequate, failing to explain the legal requirements or direct the jury to relevant evidence.

Furthermore, the trial judge erred in law by instructing the jury that a six-year limitation period applied for breach of contract rather than the one-year limitation period mandated by the insurance policy, and failed to instruct the jury on the discoverability principle.

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

The court determined that costs should be awarded against the respondent Sudbury Downs Holding, as it stood in an adversarial relationship to the appellant, unlike the Ontario Racing Commission.

Costs were fixed on a partial indemnity scale for the application for judicial review, the motion for leave to appeal, and the appeal itself, totaling $42,880 in fees plus disbursements and GST.

The appellant appealed his convictions for attempted murder and aggravated assault, as well as his sentence.

He argued the trial judge misdirected the jury on the mens rea for attempted murder, failed to adequately answer a jury question on intent, and erred in not instructing the jury that his rage could raise a reasonable doubt about intent.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions were correct and adequate, noting that the mens rea for attempted murder is an intention to kill.

The sentence appeal was also dismissed, with the court noting the severe nature of the domestic abuse.

The appellant appealed his custodial sentence.

The Court of Appeal admitted fresh evidence in the form of two psychiatric reports indicating that the appellant's risk of re-offending was much lower than the trial judge had concluded, and that his post-conviction counselling was effective.

Based on this fresh evidence, the Court varied the sentence to a 10-month conditional sentence, while upholding the weapons prohibition order.