Marc Rosenberg

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

The court ordered no costs for the motion before Carthy J.A., but awarded the respondents their costs of the appeal fixed at $26,000, inclusive of disbursements and GST.

Before marriage, the respondent wife purchased land using a housing loan under the Income Tax Act and built a house that became the matrimonial home.

Upon separation, the husband argued that the housing loan should be deducted from the marriage date value of the wife's property when calculating her net family property, which would increase her net family property.

The Court of Appeal upheld the trial judge's decision that the housing loan, like a mortgage, should not be deducted from the marriage date value of the property, as doing so would impose an unfair double burden on the spouse bringing the matrimonial home into the marriage.

The appellant developer appealed a judgment granting specific performance of an agreement of purchase and sale for a residential condominium unit.

The application judge had found the developer breached the agreement by improperly setting confirmed occupancy dates and terminating the agreement due to delay.

The Court of Appeal held that the application judge erred in interpreting the agreement and in making factual findings based on inference without a trial.

The judgment was set aside, and the application was converted into an action to proceed to trial on the disputed factual issues.

The Court of Appeal issued a costs endorsement for five related appeals concerning jurisdiction in personal injury cases.

The successful parties sought partial indemnity costs, while the unsuccessful parties argued for no costs or reduced costs.

Noting that the appeals involved a difficult jurisdictional issue with conflicting authorities and that the joint hearing added to the costs, the court departed from the ordinary rule that costs follow the event.

No costs were awarded in four of the appeals, and costs were reserved to the trial judge in the fifth appeal.

The appellant appealed a trial judgment dismissing her solicitor negligence claim against her former family law lawyer.

She alleged the lawyer negligently consented to a non-depletion order, preventing her from selling the matrimonial home at the peak of the real estate market.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the lawyer did not consent to the order, the order could have been varied if a sale was desired, and the appellant did not actually intend to sell the home at that time.

The appellants were convicted of possessing 1,200 kilograms of contraband tobacco and sentenced to the minimum fine under s. 240 of the Excise Act.

They appealed, arguing that the minimum fine provisions constitute cruel and unusual punishment contrary to s. 12 of the Charter.

The Court of Appeal dismissed the appeal, finding that the minimum fine is not grossly disproportionate given the gravity of the offence and the direct connection between the quantity of illegal substance possessed and the size of the fine.

The court did, however, reduce the fine to $132,000 to correct a calculation error by the trial judge.

The appellant appealed his convictions for sexual assault and touching for a sexual purpose against the nine-year-old son of his former girlfriend.

The appellant argued that the trial judge applied an unfairly rigorous standard of scrutiny to his evidence compared to the Crown witnesses.

The Court of Appeal reviewed the record and found ample reason to disbelieve the appellant, noting multiple inconsistencies, exaggerations, and fabrications in his testimony.

The appeal from conviction was dismissed.

The appellant father appealed an order dispensing with his consent to allow the respondent mother to travel to Israel with their two young children.

The mother had been diagnosed with a terminal illness and wished to visit her family.

The Court of Appeal found that the mother's terminal illness constituted a material change in circumstances under s. 17(5) of the Divorce Act.

The court upheld the decision that the trip was in the children's best interests but varied the order to include strict conditions regarding travel safety, medical insurance, and a 21-day limit due to the unstable situation in Israel.

The appellant association appealed a Divisional Court decision dismissing its application for judicial review.

The respondent race track owner had excluded certain licensed members of the appellant from racing at its track, citing private property rights.

The Ontario Racing Commission declined jurisdiction to hold a hearing on the matter, believing it could not interfere with private property rights.

The Court of Appeal allowed the appeal, holding that the Commission's broad statutory powers to govern and regulate horse racing in the public interest necessarily included the power to make decisions that incidentally affect private property rights.

The Commission was directed to hold a hearing.

The appellant borrowed $500,000 from the respondent under an agreement that effectively charged an interest rate exceeding 60 per cent per annum, violating the criminal interest rate provisions of the Criminal Code.

The application judge found the agreement violated the Criminal Code but applied a 'notional severance' to reduce the interest rate to the legal maximum of 60 per cent.

The Court of Appeal allowed the appeal, holding that notional severance is not an available remedy.

Instead, the court applied traditional severance principles, striking out the illegal 4 per cent per month interest provision entirely, while leaving the principal repayment and other valid fees intact.

The appellants, various book publishers, appealed a decision determining that they did not have priority over the Bank of Nova Scotia regarding accounts receivable collected by the distributor, General Distribution Services Inc. (GDS).

The publishers argued that because they retained title to the books, they had priority.

The Court of Appeal dismissed the appeal, finding that the arrangement between the publishers and GDS did not require the segregation of funds, allowing GDS to mingle the proceeds with its own money.

Consequently, the relationship was one of debtor and creditor, not trustee and beneficiary, and the publishers did not hold a priority interest.

The Crown appealed the respondent's acquittal on charges of dangerous driving causing death and bodily harm.

The respondent, a young offender, drove through a stop sign at an allegedly excessive speed and collided with another vehicle, killing three people.

The trial judge found the stop sign was difficult to see and could not determine the exact speed, concluding the driving was a departure but not a marked departure from the standard of care.

The majority of the Court of Appeal dismissed the Crown's appeal, holding that the facts were disputed and the trial judge's conclusion did not amount to an error of law.

The plaintiff, an Ontario resident, was injured in a motor vehicle accident in Alberta involving Alberta residents.

He returned to Ontario, where he received medical treatment and suffered ongoing damages.

He sued the defendants in Ontario, serving them outside the jurisdiction under Rule 17.02(h).

The defendants moved to stay the action, arguing the rule was ultra vires and that Ontario lacked jurisdiction or was forum non conveniens.

The Court of Appeal dismissed the appeal, holding that Rule 17.02(h) is procedural and constitutional.

The court established an eight-factor test for determining whether a real and substantial connection exists to assume jurisdiction over out-of-province defendants, concluding that jurisdiction was properly assumed and Ontario was the appropriate forum.

The plaintiffs, Ontario residents, were injured during a shore excursion in Grenada while on a Caribbean cruise.

They sued the Canadian tour operator, the American cruise line, and the Grenadian excursion provider and driver in Ontario.

The Grenadian defendants brought a motion to stay the action against them on the basis that Ontario lacked jurisdiction.

The Court of Appeal applied the real and substantial connection test and held that Ontario courts could not assume jurisdiction over the Grenadian defendants, as they had no connection to Ontario and it would be unfair to require them to litigate there.

The plaintiffs, Ontario residents, were involved in a motor vehicle accident in New York with the defendants, who were New York residents.

The plaintiffs commenced an action in Ontario against the New York defendants and their own insurer.

The New York defendants successfully moved to stay the action for lack of jurisdiction.

On appeal, the Court of Appeal applied the real and substantial connection test and the eight factors from Muscutt v. Courcelles.

The court concluded that assuming jurisdiction over the out-of-province defendants for a foreign accident would violate principles of order and fairness, and dismissed the appeal.

The appellants, Ontario residents, were injured during an excursion tour while vacationing in Costa Rica.

They brought an action in Ontario against several defendants, including the Costa Rican company that sold the excursion.

The Costa Rican company successfully moved to stay the action on the basis that Ontario courts lacked jurisdiction and, alternatively, that Costa Rica was the more convenient forum.

The Court of Appeal applied the real and substantial connection test and the principles of order and fairness, concluding that the Ontario courts could not assume jurisdiction over the foreign defendant.

The appeal was dismissed.

The appellants, Ontario residents, brought an action in Ontario against a Tennessee corporation for injuries sustained in a slip and fall at the respondent's restaurant in New York.

The respondent moved to stay the proceedings on jurisdictional grounds.

The Court of Appeal applied the factors from the companion case of Muscutt v. Courcelles and held that Ontario courts could not assume jurisdiction over the out-of-province respondent, as the real and substantial connection test was not met and assuming jurisdiction would violate principles of order and fairness.

The appeal was dismissed.

Following an appeal, the court received written submissions regarding costs.

The appellants made no submissions on the quantum of costs.

The court fixed the costs at $13,947.50, finding the requested amount to be reasonable.

The appellant, an insurance broker, was dismissed for cause by the respondent employers who alleged incompetence, primarily based on a failure to secure coverage for a client.

The trial judge found no just cause, noting the employers had condoned earlier alleged errors by offering continued employment, and awarded damages for wrongful dismissal.

The Divisional Court overturned the trial decision, finding the trial judge misapprehended the evidence and misapplied the doctrine of condonation.

The Court of Appeal allowed the appeal and restored the trial judgment, holding that the Divisional Court failed to accord proper deference to the trial judge's findings of mixed fact and law regarding condonation and his assessment of the evidence.

The appellant appealed his conviction, arguing that the trial judge erred in admitting the evidence of several witnesses, including an expert who testified that the complainant suffered from post-traumatic stress disorder.

The Court of Appeal dismissed the appeal, noting that defence counsel at trial had not objected to the evidence and that it was admissible to respond to the defence's attack on the complainant's credibility regarding delayed disclosure.

The court also found the jury charge on credibility to be sufficient.