Mark Gelowitz

Mark Gelowitz

Osler, Hoskin & Harcourt LLP

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R. v. Courtice Auto Wreckers Limited: Determining the Appellate Route from a Stay of Proceedings Under the Provincial Offences Act...

In its March 11, 2014 decision in R. v. Courtice Auto Wreckers Limited, the Ontario Court of Appeal considered a discrete but important issue in appellate practice: what appeal route should be undertaken by the Crown when it...more

3/28/2014 - Appeals Canada Environmental Protection Act

R. v. Cook: When a Post-Conviction Production Application does not require the Trotta Analysis

The Ontario Court of Appeal’s March 4, 2014 decision in R. v. Cook is an outstanding illustration of appellate criminal procedure regarding a production application where disclosure was sought to support a potential fresh...more

3/28/2014 - Canada Disclosure Document Productions Evidence

P.S. v. Ontario: Ontario Court of Appeal Clarifies When Intervention Should be Granted in Constitutional Cases

Constitutional cases usually have implications that go beyond the immediate dispute between the parties. Appeals in such cases thus frequently attract the interest of interveners. But when can an intervener truly add a new...more

3/28/2014 - Canada Healthcare Intervenors Mental Health

Canada (Attorney General) v. Pictou Landing First Nation: Factors to Consider on a Motion to Intervene under the Federal Courts...

On January 29, 2014, Stratas J.A. of the Federal Court of Appeal granted two motions to intervene in Canada (Attorney General) v. Pictou Landing First Nation. In deciding those motions, Stratas J.A. commented on the factors...more

3/27/2014 - Canada Motion To Intervene Tribal Lands

Sanchez v. Canada (Citizenship and Immigration): When to Stay an Appeal Pending a Decision by the Supreme Court of Canada

In the recent case of Sanchez v. Canada (Citizenship and Immigration), Stratas J.A. of the Federal Court of Appeal dismissed the appellant’s motion for a stay of the appeal pending a decision by the Supreme Court of Canada....more

3/27/2014 - Appeals Canada SCC

Pirani v. Esmail: Disagreement on Ontario Court of Appeal Regarding Deferring to Trial Judge’s Reliance on Expert Report in...

It is trite law that appellate courts are to give significant deference to trial judges’ assessments of damages, particularly when tied to questions of facts. But how much deference? The Ontario Court of Appeal’s February 12,...more

3/7/2014 - Canada Damages Expert Witness Valuation

Exchange Corp. v. Mississauga: Determining the Standard of Review in contractual interpretation cases

Contractual interpretation would seem to be a question of law, thus meaning that decisions interpreting contracts should be reviewed on a correctness standard. Sometimes, however, contractual interpretation becomes...more

2/27/2014 - Canada Contract Interpretation Standard of Review

Hryniak v. Mauldin: Standard of Review on Appeal of a Motion for Summary Judgment in Ontario

In 2010, Ontario amended the Rules of Civil Procedure to reform the summary judgment procedure under Rule 20. In Hryniak v. Mauldin, decided on January 23, 2014, the Supreme Court of Canada considered for the first time the...more

2/13/2014 - Appeals Canada SCC Standard of Review Summary Judgment

Heydary Hamilton PC v. Muhammad: Dismissing appeal for corporation’s failure to retain counsel

The Ontario Court of Appeal’s January 27, 2014 decision in Heydary Hamilton PC v. Muhammad, 2014 ONCA 84, considered the narrow but important issue of when a Court should dismiss an appeal due to a corporation’s failure to...more

2/13/2014 - Appeals Canada Dismissals Independent Counsel

Bernard v. Canada (Attorney General): Appellate Review of a Lower Court’s Interpretation of its Own Order & New Charter Arguments...

On February 7, 2014, the Supreme Court of Canada released its judgment in Bernard v. Canada (Attorney General), 2014 SCC 13, a case involving the judicial review of a decision by the Public Service Labour Relations Board...more

2/13/2014 - Appellate Review Canada Personally Identifiable Information Unions

R. v. Smickle: Staying Execution of Sentence when Allowing Appeal Would Re-Incarcerate Accused

Sometimes, the result of allowing a sentence appeal would be the re-incarceration of the respondent. Should an appellate court consider the harsh effects that such a result would inflict upon the respondent in deciding how to...more

1/27/2014 - Canada Criminal Appeals Criminal Rehabilitation

Statutory interpretation: interlocutory or final?

Sometimes, a seemingly interlocutory order will necessitate that a judge interpret a statute in a way that may seem “final”. Does an appeal in Ontario in such circumstances lie to the Divisional Court or the Court of Appeal?...more

1/17/2014 - Canada Interlocutory Orders

Ambrose v. Zuppardi: Orders dismissing motions to examine non-parties usually to be considered interlocutory

Is an order dismissing a motion to examine a non-party final or interlocutory? In Ambrose v. Zuppardi, the Ontario Court of Appeal said “it depends”, narrowing the holding of a 1980 case (Smerchanski v. Lewis) that said such...more

1/17/2014 - Canada Interlocutory Orders

Best v. Cox: Motions to Remove Counsel and Receive Security for Costs

In Best v. Cox, Justice Feldman of the Ontario Court of Appeal considered two motions related to appellate practice. The appeal emerged from a finding of civil contempt. The first motion was brought by the appellant to remove...more

12/20/2013 - Appeals Canada Contempt Disqualification Frivolous Lawsuits Legal Costs

R. v. A.E. – Self-represented litigants; leave to appeal under the Provincial Offences Act

Lauwers J.A.’s decision in R. v. A.E. considered several issues in appellate practice and makes for a highly interesting complement to his dissent in Kirby v. Hope Place Centres. Like that case, this decision highlighted the...more

12/20/2013 - Appeals Canada Mental Illness Pro Se Litigants Time Extensions

Denomme v. McArthur: When Factors to Extend Time to File Notice of Appeal Point in Different Directions

In Ontario, it is well established that the following five factors are to be considered when deciding whether to extend the time period in which to file a notice of appeal: 1) whether the appellant formed an intention to...more

11/29/2013 - Appeals Canada Notice of Appeal Time Extensions

Dasham Carriers Inc. v. Gerlach: Allowing an Appeal for Reasons Not Argued by Appellant

What happens when appellate judges know an appeal should be allowed but counsel have not argued the proper basis to do so? The Ontario Court of Appeal faced this issue in Dasham Carriers Inc. v. Gerlach. The case concerned...more

11/29/2013 - Appeals Calculation of Damages Canada Damages Judges Lack of Authority

Pate Estate v. Harvey: Division on the Appropriate Standard of Appellate Review for Punitive Damages Amounts

A trial judge’s assessment of damages is usually entitled to significant deference on appeal. Even so, when it comes to awarding punitive damages, appellate courts have a more interventionist role. But how interventionist?...more

11/21/2013 - Appellate Rules Canada Punitive Damages

R. v. Brownson: When can the Crown Amend the Information on Appeal?

In what circumstances should an appellate court permit the Crown to amend an information against an accused person at the appeal hearing? This was the question faced by the Ontario Court of Appeal in R. v. Brownson, 2013 ONCA...more

11/20/2013 - Appeals Canada Criminal Prosecution Indictments Prejudice

Msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd. – No Suspension of Limitations Periods pursuant to s. 195 of the BIA

Upon the filing of an appeal of a bankruptcy order, that order is stayed pursuant to section 195 of the Bankruptcy and Insolvency Act (“BIA”). In Msi Spergel v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550, the...more

10/28/2013 - Canada Commercial Bankruptcy Statute of Limitations Trustees

2195002 Ontario v. Tribute Resources: Court of Appeal can hear appeal of Superior Court decision despite later involvement of an...

It is uncontroversial that administrative tribunals, through their empowering statutes, can oust the jurisdiction of a superior court to hear certain matters. But can events that take place in the administrative law context...more

10/9/2013 - Appeals Canada Contract Interpretation Jurisdiction Oil & Gas

Knew Order v. 2291955 Ontario: Costs Awarded Against Successful Appellants for Procedural Errors

Judges may be reluctant to let procedural errors stand in the way of what they perceive as justice. But that is not to say they do not notice when significant procedural errors occur. The Ontario Court of Appeal’s recent...more

10/4/2013 - Appeals Canada Interlocutory Orders Legal Costs

Fresh evidence in criminal appeals: what is a “tactical decision” not to call evidence at trial?

Section 683(1) of the Criminal Code allows an appellate court to receive evidence on appeal “where it considers it in the interests of justice”. It is well-established that it is frequently not “in the interests of justice”...more

9/5/2013 - Appeals Criminal Prosecution Evidence Litigation Strategies

Re Nortel: Fresh Evidence in a Motion for Leave to Appeal

In a decision rendered on August 15, 2013, the Ontario Court of Appeal in Re Nortel denied a motion for leave to appeal in a CCAA proceeding, reiterating the stringent test for leave to appeal in such circumstances. More...more

8/21/2013 - CCAA Evidence

Sino-Forest: Leave to appeal CCAA decision denied when appellant seeking to preserve potential future right to opt out of class...

The test for granting leave to appeal in Companies Creditors’ Arrangement Act proceedings is well-settled: ..Whether the point on the proposed appeal is of significance to the practice; ..Whether the point is of...more

7/24/2013 - Appeals CCAA Class Action Class Certification Commercial Bankruptcy Fraud

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