Marc Rosenberg

The appellant sought to certify a class proceeding against Inco Limited for environmental contamination in Port Colborne, alleging that nickel oxide emissions caused a decline in property values following a 2000 Ministry of the Environment announcement.

The motion judge and Divisional Court refused certification, finding the class arbitrary and individual issues overwhelming.

The Court of Appeal allowed the appeal and certified the action, holding that the narrowed claim focusing solely on property devaluation met all certification requirements under the Class Proceedings Act, including identifiable class, common issues, preferable procedure, and suitable representative plaintiff.

The appellant appealed the dismissal of her action.

The Court of Appeal held that a failed Rule 20 motion for summary judgment by a plaintiff does not preclude a later Rule 21 motion by a defendant, as the issues are different and no issue estoppel arises.

Furthermore, a previous panel of the court had already determined the appellant lacked legal capacity to sue the respondents.

As the current action involved the same parties and factual allegations, it was an attempt to re-litigate the issues and was barred by res judicata.

The appeal was dismissed with costs.

Following an appeal, the appellants sought costs of the motion below on a substantial indemnity basis.

The Court of Appeal rejected the claim for substantial indemnity costs, noting the respondents' conduct was not unreasonable and the novel aspect of the claim.

However, as the appellants were partially successful in maintaining their right of action, the court awarded them partial indemnity costs of the motion below fixed at $10,000.

The appellants appealed a decision granting the respondent specific performance of a right of first refusal contained in a charge on a farm property.

The application judge had found that the right of first refusal survived the balance due date of the charge.

The Court of Appeal allowed the appeal, holding that the application judge erred in interpreting the term of the charge.

The Court concluded that the right of first refusal expired on the balance due date and was not binding when the property was subsequently offered for sale.

The appellant appealed the trial judge's decision, which was based on the credibility of witnesses, surveillance video, and the appellant's failure to disclose relevant information to his doctors and on his CPP application.

The Court of Appeal found no palpable and overriding error in the trial judge's decision and dismissed the appeal with costs fixed at $4,500.

The appellant appealed the dismissal of its motion for a stay of action, arguing that California had exclusive jurisdiction and Ontario was not the appropriate forum.

The Court of Appeal found that the motions judge's conclusion that the appellant failed to establish exclusive jurisdiction was supported by the evidence.

The court deferred to the motions judge's discretionary finding that Ontario was the more appropriate forum and dismissed the appeal.

The Crown appealed a stay of proceedings granted by the trial judge due to unreasonable delay.

The total delay from arrest to the stay was just over 14 months, with 12 months of institutional delay.

The Court of Appeal found that the trial judge did not err in assessing actual prejudice, including psychological harm, strict bail conditions, and additional expenses.

The Court also agreed that the offer of 'Blitz Court' dates did not shorten the systemic period in this case.

The appeal was dismissed.

The appellant appealed his conviction for drug possession, arguing that the police violated his section 8 Charter rights during a vehicle stop.

At trial, the Crown abandoned its position that there were reasonable grounds for arrest and instead argued the stop was a valid investigative detention.

The trial judge accepted this but failed to consider the duration or manner of the detention.

The Court of Appeal allowed the appeal and ordered a new trial, noting the trial judge did not have the benefit of recent Supreme Court jurisprudence on investigative detention and the record was insufficient to resolve the issue.

The appellant, a bartender on the respondent's boat, appealed the dismissal of her action for damages after she fell while descending a ladder and broke her leg.

The trial judge dismissed the claim, finding the appellant was the author of her own misfortune and preferring the respondent's evidence regarding the appellant's footwear.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility findings or his conclusion that the respondent was not negligent under the Occupiers' Liability Act.

The appellant appealed and the respondent cross-appealed the trial judge's equal apportionment of liability in a slip and fall case.

The appellant tripped over a sand bucket upon exiting a building.

The Court of Appeal found that the evidence supported the trial judge's conclusion that both parties were contributorily negligent, as the appellant was moving too fast and failed to keep a proper lookout, while the respondent had placed the bucket on the landing.

The appeal and cross-appeal were dismissed.

The appellants appealed a trial judgment finding a shareholder's agreement, oppression, and ordering an advance payment of $75,000 along with substantial indemnity costs.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusions.

The refusal to acknowledge the respondent as a shareholder constituted oppression under section 248 of the Business Corporations Act.

The trial judge's costs award was also upheld as a proper exercise of discretion.

The appellant appealed a decision confirming an order of the Chief Building Inspector under s. 17(1) of the Building Code Act, arguing that the order must be in writing.

The Court of Appeal dismissed the appeal, holding that the current statutory provision does not require the order to be in writing and contemplates that it can be given orally and subsequently reduced to writing.

The protection for the owner is found in s. 17(7), which requires the chief building official to apply to a judge for confirmation of the order.

The appellant, an informal committee of senior debenture holders, sought leave to appeal orders made by the supervising judge in a CCAA restructuring.

The orders authorized the debtor company to enter into agreements with stakeholders and a finance provider to facilitate a proposed plan of arrangement.

The appellant argued the judge lacked jurisdiction to make orders that entrenched elements of a plan before creditor approval and that the plan was doomed to fail.

The Court of Appeal dismissed the appeal, holding that the supervising judge had broad jurisdiction under s. 11 of the CCAA to move the restructuring process forward, provided the creditors retained their final right to vote on the plan under s. 6.

The appellant appealed his sentence, introducing fresh evidence regarding his severe health problems and ineligibility for day parole.

The Court of Appeal dismissed the appeal, finding that the health issues did not render the sentence unfit and noting that the appellant would likely be deported early, freeing him from the sentence entirely.

The appellant was convicted of aggravated assault and related charges following a stabbing outside a nightclub.

She appealed on the grounds that the trial judge misdirected the jury on the use of a co-accused's statement, failed to adequately instruct on eyewitness identification frailties, and erred in his handling of trial exhibits that went missing during jury deliberations.

The Court of Appeal found that the trial judge committed a reversible error by instructing the jury that the co-accused's statement could be used as evidence for all accused.

The court also found errors in the identification and missing exhibits instructions.

The appeal was allowed and a new trial ordered.

The unrepresented appellant appealed his convictions, arguing that the Crown's cross-examination was improper and that the trial judge failed to provide limiting instructions regarding his conspiracy theory.

The Court of Appeal agreed, finding that the Crown improperly cross-examined the appellant on extraneous matters and his failure to deny allegations in-chief.

The trial judge also failed to instruct the jury on the limited use of the appellant's conspiracy theory.

The appeal was allowed, but a stay of proceedings was entered as the appellant had already served his sentence and this would be his fourth trial.

The appellant appealed his convictions and sentence arising from a 'criminal swarm' assault.

The Court of Appeal applied the Kienapple principle to stay two counts on the indictment to prevent multiple convictions for the same delict.

On the sentence appeal, the Court found an unjustified disparity between the appellant's five-year sentence and the significantly shorter sentences imposed on older co-accused with more serious records who had pleaded guilty.

The appeal was allowed, and the sentence was reduced to 24 months' imprisonment, in addition to pre-trial custody credit.

The appellant was convicted of assault and assault with a weapon against his wife and son, based on his wife's unsworn videotaped statement to police, which she later recanted at trial.

On appeal, the appellant argued the trial judge's mid-trial comments about believing the son's videotaped statement created a reasonable apprehension of bias, and that the wife's statement should not have been admitted.

The Court of Appeal found the trial judge's comments did create a reasonable apprehension of bias, necessitating a new trial.

However, the Court upheld the admission of the wife's videotaped statement, finding the surrounding circumstances provided sufficient threshold reliability despite the lack of an oath.

The appellant filed a human rights complaint alleging disability discrimination by his former employer.

The Ontario Human Rights Commission decided not to refer the complaint to a board of inquiry under s. 36 of the Human Rights Code because the employer had made an adequate settlement offer, which the appellant refused.

The Divisional Court dismissed the appellant's application for judicial review.

On appeal, the Court of Appeal held that the Commission was entitled to consider the settlement offer, which was not privileged against the Commission, and that the Commission's decision was not patently unreasonable.

The appeal was dismissed.

The appellant appealed his conviction, arguing the verdict was unreasonable due to frailties in the identification evidence and seeking to introduce fresh evidence.

The Court of Appeal found the verdict was not unreasonable, as several witnesses identified the appellant.

However, the court admitted the fresh evidence of a new witness, finding it was reasonably capable of belief and could have affected the result given the frailties in the identification procedure.

The appeal was allowed, convictions set aside, and a new trial ordered.