Marc Rosenberg

The appellant appealed an order striking part of its statement of claim that sought a declaration that the respondent airport authority lacked jurisdiction to impose fees and charges on airport users.

The court held it was unnecessary to resolve the pleaded delegation and Crown-operation issues because the respondent's authority arose from its leasehold interest and corporate capacity, as recognized by the applicable federal legislation and regulations.

The court further held Parliament did not intend to create a complete code restricting airport user charges to those set by ministerial regulation.

The appeal was dismissed with costs.

On an appeal from summary judgment dismissing a corporate appellant's crossclaim against a transfer agent, the court rejected the argument that the transfer agent breached either a statutory due diligence duty under s. 91(1) of the Ontario Business Corporations Act or a common law duty by issuing a share certificate after raising concerns with inside counsel.

The court held the respondent had acted in good faith and had not failed in its duty.

The appeal succeeded only to the extent of narrowing an indemnity order as premature and overly broad, limiting contribution and indemnity to the contractual provision and striking a further paragraph of the order.

Costs were awarded to the respondent on a party-and-party basis.

The appellant challenged his conviction for indecent assault and a sentence of two years less one day arising from prolonged historic sexual abuse of his stepdaughter.

The principal issue on conviction concerned refusal of third-party therapeutic records under the post-Bill C-46 production regime in the Criminal Code.

Applying the Supreme Court's decision in Mills, the court held the request was supported only by speculative assertions and lacked a case-specific evidentiary foundation for likely relevance.

The court also rejected an attack on the trial judge's credibility assessment based on the complainant's differential memory of incidents, and dismissed the sentence appeal after granting leave.

The appellant brokerage appealed the dismissal of its commission claim arising from an authority to sell.

The court held that the authority did not apply to a sale to a purchaser who had already been dealing with the respondents before the authority was signed, and that merely showing financial statements did not amount to showing the property in the circumstances.

The court also upheld the trial judge’s conclusion that, although the broker provided some assistance, it was not the effective cause of the sale.

The appeal was dismissed with costs and the money paid into court was ordered paid out to two of the respondents.

The appellant appealed convictions for indecent assault and sexual assault arising from allegations by two complainants in a blended family context.

He argued the trial judge erred by refusing an offence-based challenge for cause, declining to sever counts involving different complainants, inadequately instructing the jury on the use of evidence across counts, and refusing a missing witness adverse inference instruction.

The court held that the challenge for cause issue was governed by existing authority, that severance was properly refused given the factual nexus surrounding disclosure during a custody dispute, that the charge sufficiently guarded against propensity reasoning, and that the trial judge properly exercised discretion on the missing witness issue.

The appeal from conviction was dismissed.

The appellant appealed conviction and sentence arising from substantially the same factual matrix as that of his wife, whose conviction had previously been found unreasonable by the same court.

The court held that the two features relied on by the trial judge to distinguish the appellant's case — the scale of monies connected to him and an alleged retreat when police entered — were not valid distinguishing factors.

The alleged retreat did not reasonably support an inference of consciousness of guilt.

The verdict was therefore unreasonable, the appeal was allowed, the convictions were quashed, and acquittals were entered.

The Crown sought leave to appeal sentence following convictions for incest and indecent assault arising from historical sexual offences against the respondent's daughter and her friend.

The sentencing judge imposed a suspended sentence and probation after considering the respondent's advanced age, frailty, and medical condition.

The majority held that, although the normal sentencing range for incest involving sexual intercourse with a young child was three to five years' imprisonment, the case was unique and any additional custodial sentence might lead to the respondent's death.

A dissenting judge would have found the sentence manifestly unfit and imposed custody.

The appellants sought to restore a motion order extending the time for service of a statement of claim issued within the limitation period but not served before the service deadline expired.

The court held that the controlling question was whether the respondent would suffer prejudice caused by the delay, and confirmed that while the onus remained on the plaintiffs, a defendant asserting prejudice had at least an evidentiary obligation to provide some particulars.

The court further held that a defendant could not manufacture prejudice by failing to take reasonable steps earlier to preserve evidence, and that prejudice unrelated to the delayed service was irrelevant.

The appeal was allowed, the Divisional Court order was set aside, and the original extension order was restored.

The appellant appealed a judgment upholding a retail sales tax assessment imposed on payments made to terminate computer equipment leases after repudiation and default.

The court held the payments were negotiated settlement amounts made in the context of potential damages claims and simultaneous lease termination, not rental payments made under an ongoing lease.

Reading s. 2(1) and s. 2(6) of the Retail Sales Tax Act together, the court concluded sales tax is payable only on each rental payment while the lease remains in operation.

The assessment was vacated, the tax and interest paid were to be repaid, and no costs were ordered.

In a motor vehicle negligence appeal from a jury verdict, the appellants challenged the exclusion of an investigating police officer’s accident reconstruction opinion and the trial judge’s references to an inadmissible police report in the jury charge.

The court held that the trial judge erred in treating expert necessity as absent merely because other experts testified, and also erred by discussing the contents of the excluded report before the jury.

Nevertheless, applying s. 134(6) of the Courts of Justice Act, the court found no substantial wrong or miscarriage of justice because the officer’s observations and the defence expert’s evidence effectively conveyed the same theory, and the impugned charge did not materially affect the result.

The appeal was dismissed with costs.

The appellant appealed convictions for aggravated assault, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace.

He argued that the trial judge misapprehended the evidence and improperly imposed a duty on him to stop his co-accused.

The court held there was ample evidence supporting the convictions and interpreted the trial reasons as finding a joint venture and the requisite intent when the co-accused armed himself.

The appeal was dismissed.

The appellant appealed both conviction and sentence arising from a criminal matter in which he asserted self-defence.

The Court of Appeal held that the trial judge was entitled to find that the rock throwing was a separate act of punishment rather than an act necessitated by self-defence, and that the law of self-defence under s. 34 was properly applied.

The court rejected the submission that the trial judge failed to consider the subjective elements of self-defence.

The court also upheld sentence, finding this was not a proper case for a conditional sentence.

The appellant, a young person, appealed a disposition totaling three and one-half years.

The court held the disposition was illegal because it exceeded the two-year maximum under s. 20(3) of the Young Offenders Act and found the trial judge erred in principle by relying on adult offender factors to the virtual exclusion of youth sentencing principles.

While the offence was very serious and had a serious impact on the complainant and her family, the court concluded that further treatment in custody remained appropriate for public protection.

The appeal was allowed and the disposition was reduced to nine months secure custody and fifteen months probation on the same terms imposed below.

The appellant challenged a jury conviction on the basis that the trial judge inadequately charged the jury on provocation and erred in the self-defence instruction under s. 34(2) of the Criminal Code.

The court held the charge, read as a whole, fully reviewed the evidence and sufficiently conveyed that the jury had to assess the appellant's circumstances in light of the matrimonial dispute.

The court further held that the trial judge properly focused the jury on the central factual dispute concerning who first introduced the hammer into the altercation.

No misdirection was established and the appeal was dismissed.

The appellants challenged the valuation of dissenting shareholders' shares in a closed-end investment holding company, arguing that fair value should have been determined by net asset value rather than stock market trading price.

The court held that the appropriate valuation methodology depends on the facts of each case and accepted expert evidence that market price was the better indicator in light of the issuer's nature, the illiquidity of some portfolio assets, and the trading history of the shares.

The court found it was open to the applications judge to prefer that expert evidence and concluded there was no error in adopting the market value approach.

The appeal was dismissed with costs.

The appellant challenged the constitutionality of s. 810.1 of the Criminal Code, arguing that the child-protection recognizance regime created a status offence, was overbroad, and was impermissibly vague, and further challenged the availability of arrest and detention procedures in such proceedings.

The Court of Appeal held that s. 810.1 is preventive, not punitive, and is directed at assessing present risk of future harm to children rather than punishing status.

The court found the regime sufficiently tailored and procedurally safeguarded, upheld the reading down of 'shall' to 'may' in s. 810.1(2), and confirmed that ss. 507(4) and 515 apply to s. 810.1 proceedings.

The appeal was dismissed.

The appellant sought to recover deposit monies on the basis that they were impressed with a trust if the underlying transaction failed to close.

The court held that the appellant met neither branch of the Quistclose requirements because the monies were advanced and used as a deposit for their intended purpose.

The respondents also had no notice at the time the monies were provided that any trust obligation attached to them.

The appeal was dismissed with costs.

The appellant challenged a partial summary judgment arising from a dispute over whether an oral agreement had been made in the spring of 1997 and whether its terms were breached.

The majority held that the existence and terms of the alleged oral agreement raised a genuine issue requiring a trial.

The court concluded that only after those factual issues were resolved could the legal enforceability of the agreement be determined.

The appeal was allowed, the partial summary judgment was set aside, and the respondent's summary judgment motion was dismissed with costs to the appellant.

Appeal from summary judgment dismissing a negligence action arising from an aircraft landing gear collapse allegedly caused by corrosion in a component part.

The appellant purchaser sought to avoid a contractual warranty package and exclusion clause, arguing that only certain warranty parts were accepted and that the exclusion did not extend to negligence or to a post-sale duty to warn.

The court held that the accepted warranty parts expressly incorporated Part 1, including a broad exclusion of all other liabilities occasioned by the manufacturer's negligence.

Applying the principle that contractual allocations of risk prevail over tort claims, the court concluded that the exclusion barred claims for negligent design, manufacture, and failure to warn.

Appeal dismissed with costs.

The appellant appealed from a summary conviction appeal court decision dismissing his conviction appeal and partially allowing his sentence appeal.

Before the Court of Appeal, he argued that the trial judge unduly intervened and that the record, read as a whole, showed the trial judge was not satisfied of guilt beyond a reasonable doubt.

The court held that most interventions were innocuous and aimed at clarifying ambiguities, and that no legal error arose from the rejection of that ground.

The court also found the record demonstrated the trial judge rejected the primary defence and was satisfied the appellant had the requisite mens rea.

The conviction appeal was dismissed and leave to appeal sentence was refused.