Mark Gelowitz

Mark Gelowitz

Osler, Hoskin & Harcourt LLP

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Henderson v. Henderson: Motion for Extension of Time to Perfect Appeal Dismissed Due to Appeal Being Brought in Wrong Court

On a motion for an extension of time to perfect an appeal in the Ontario Court of Appeal, a judge is without jurisdiction to conclusively determine that the appeal was brought in the wrong Court due to being interlocutory....more

8/21/2014 - Appeals Canada Interlocutory Appeals Jurisdiction

Mask v. Silvercorp Metals, Inc: Leave to Appeal Dismissed in Class Action Context, Despite a Novel Issue in Law

On August 11, 2014, Justice Perell, sitting in the Ontario Divisional Court, released a decision in Mask v. Silvercorp Metals, Inc. addressing the test for leave to appeal an interlocutory order in a proposed class action, to...more

8/21/2014 - Canada Class Action Interlocutory Orders

Sistem Mühendislik A.S. v. Kyrgyz Republic: Ontario Court of Appeal Conditionally Stays Order Declaring Equitable Interest

The August 7, 2014 decision of the Ontario Court of Appeal in Sistem Mühendislik A.S. v. Kyrgyz Republic illustrates that an automatic stay pending appeal of an “order for the payment of money” is only triggered if the order...more

8/21/2014 - Appeals Arbitration Arbitration Awards Automatic Stay

Manitoba Court of Appeal Confirms Test for Leave to Appeal Certification Decisions

In its recent decision in Meeking v Cash Store Inc. et al., 2014 MBCA 69, the Manitoba Court of Appeal reiterated the appropriate test which must be satisfied in order for leave to be granted to appeal the certification of a...more

8/20/2014 - Appeals Canada Class Action Class Certification

R. v. Graham: Ontario Court of Appeal Explains Protocol for Appeal Alleging Ineffective Assistance of Counsel

In its July 29, 2014 decision in R. v. Graham, the Ontario Court of Appeal (Cronk, Watt and van Rensburg JJ.A.) comprehensively considered how to approach a criminal appeal alleging ineffective assistance of trial counsel. In...more

8/20/2014 - Appeals Attorney Malpractice Canada Criminal Appeals

Hopkins v. Kay: Ontario Court of Appeal Considers Order Conclusively Determining Superior Court’s Jurisdiction to be Final

In her July 2, 2014 decision in Hopkins v. Kay, van Rensburg J.A. of the Ontario Court of Appeal considered when an order declining to dismiss an action for lack of jurisdiction will be final or interlocutory. This is...more

8/15/2014 - Canada Interlocutory Orders Jurisdiction

Sattva Capital Corp. v. Creston Moly Corp.: standard of review for contractual interpretation and arbitral awards

On August 1, 2014, the Supreme Court of Canada released its decision in Sattva Capital Corp. v. Creston Moly Corp., a case involving an arbitral award under the British Columbia Arbitration Act. In that case, the Court...more

8/13/2014 - Arbitration Canada Contract Interpretation SCC

The Law Society Of British Columbia v The Society of Notaries Public of British Columbia: Intervener Granted Standing to Appeal...

On June 12, 2014, a panel of the British Columbia Court of Appeal delivered its oral reasons in The Law Society Of British Columbia v The Society of Notaries Public of British Columbia, 2014 BCCA 233, granting standing to an...more

8/7/2014 - Appeals Canada Oral Argument

R. v. Sipos: Appellate review of a dangerous offender designation

In the case of R. v. Sipos, the accused was convicted of multiple sexual offences and physical assaults in 1996. In 1998, he was declared a dangerous offender under s. 753 of the Criminal Code and given an indeterminate...more

8/7/2014 - Criminal Prosecution

Exeter v. Canada (Attorney General): Summary dismissal in the Federal Court of Appeal

On July 4, 2014, Sharlow J.A. provided guidance in Exeter v. Canada (Attorney General) on motions for summary dismissal in the Federal Court of Appeal. In that case, the Crown was seeking summary dismissal on the grounds that...more

8/7/2014

MacQueen v. Canada (Attorney General): Jurisdiction of the Court of Appeal to hear a motion to reconsider its order following a...

On July 15, 2014, the Nova Scotia Court of Appeal decided in MacQueen v. Canada that it did not have jurisdiction to reconsider its previous order granting an appeal. The motion to reconsider was brought by the respondents on...more

8/7/2014 - Appeals Canada Jurisdiction

Frank v. Canada: Stay Refused Pending Appeal in Face of Declaration of Unconstitutionality

The test for a stay of a decision pending appeal is well-established: 1. there must be a serious question to be determined; 2.irreparable harm will be suffered should the stay not be granted; and 3.the balance of...more

8/7/2014 - Appeals Canada Motion To Stay

R. v. Nichols Gravel Ltd.: Appellate Jurisdiction on a Second Appeal from Provincial Offences Act Conviction

Whether appeals from Ontario Court of Justice decisions under the Provincial Offences Act are to be brought to the Court of Appeal or Superior Court depends on the procedural facts of the case. Justice Pardu of the Ontario...more

7/23/2014 - Appeals Canada Jurisdiction Licensing Rules

R. v. Montague: Are Mandatory Forfeiture Orders Imposed After Conviction “Sentences”, Providing a Right of Appeal?

Criminal appeals are statutory and there must be a right of appeal for an appellate court to properly have jurisdiction over an appeal. The Ontario Court of Appeal’s June 3, 2014 decision in R. v. Montague considered whether...more

7/23/2014

D.G. v. A.F.: Best Interests of Children To Be Considered In Deciding Whether To Grant Extension Of Time To Appeal Refusal To Set...

D.G. v. A.F., released by Justice Lauwers of the Ontario Court of Appeal on May 28, 2014, considered the test to apply when a litigant in the Court of Appeal seeks an extension of time to appeal a motion judge’s refusal to...more

7/23/2014 - Appeals Canada Time Extensions

Bouzari v. Bahremani: Security for Costs Not Ordered Against Foreign-Resident Appellant-Defendant

Orders for security for costs on appeals seek to ensure that a respondent is not forced to successfully respond to an appeal, only to be unable to recover costs from the unsuccessful appellant. This concern is amplified when...more

7/23/2014 - Attorney's Fees Canada

Zurich Insurance Company v. Chubb Insurance Company of Canada: Ontario Court of Appeal Considers Standard of Review of Arbitration...

As arbitration becomes a more and more common form of dispute resolution, the intersection between arbitral decisions and the courts will need to be watched more and more closely. Frequently, such decisions are immune from...more

6/19/2014 - Appeals Arbitration Arbitrators Canada

Wadden v. BMO Nesbitt Burns: No in-depth analysis of the proposed grounds of appeal required in determining a motion for an...

On May 7, 2014, in Wadden v. BMO Nesbitt Burns, the Nova Scotia Court of Appeal granted a motion to extend the time for filing a Notice of Appeal under Civil Procedure Rule 90.37(12)(h). The Nova Scotia Supreme Court had...more

6/19/2014 - Appeals Canada Rules of Civil Procedure

R. v. Horton: Ontario Court of Appeal Comprehensively Considers Jurisdiction over Criminal Appeals

Criminal jurisdiction – trial and appellate – depends on several factors that vary with respect to particular cases. The result of this is that sometimes appeals of convictions that were imposed at the same trial can lead to...more

6/19/2014 - Appeals Canada Criminal Prosecution Jurisdiction

Barbieri v. Mastronardi: Ontario Court of Appeal Sets Aside Motion Judge’s Summary Judgment Decision for Failure to Give Adequate...

In order for an appellate court to review a decision, there must be adequate reasons to permit appellate review. Otherwise, the judgment may be set aside. The Ontario Court of Appeal’s May 21, 2014 decision in Barbieri v....more

6/19/2014 - Appeals Appellate Review Canada Summary Judgment

Putsai v. Putsai: When Appellate Decisions on Family Law Orders (Do Not) Preclude Future Motions to Vary

Motions to set aside or vary support orders are part of family law practice. But can such a motion be precluded by a Court of Appeal decision in the relevant family law dispute? The Ontario Court of Appeal’s May 23, 2014...more

6/19/2014 - Canada Set-Asides Support Orders

Stubicar v. Canada: Does the Registrar’s refusal to submit a reconsideration motion to the Supreme Court of Canada constitute an...

In a Supreme Court of Canada motion decision rendered on May 15, 2014 in Stubicar v. Canada, Rothstein J. dealt with an unusual issue of jurisdiction. Following dismissal of her application for leave to appeal to the...more

6/4/2014 - Canada Rules of Civil Procedure Trial Court Orders

Exeter v. Canada (Attorney General): An audio recording of a hearing is not a replacement for a transcript under Rule 344 of the...

On May 8, 2014, the Federal Court of Appeal rendered judgment in Exeter v. Canada (Attorney General) on an appeal from an order of the Federal Court upholding a Prothonotary’s interlocutory order. The appellant submitted as a...more

6/2/2014 - Audio Recording Canada Evidence Interlocutory Orders Rules of Civil Procedure Transcripts

Buccilli v. Pillitteri: Ontario Court of Appeal Clarifies Test for Intervention in Appeal

The Ontario Court of Appeal’s April 29, 2014 decision in Buccilli v. Pillitteri allowed a much-delayed intervention motion, placing heavy emphasis on prejudice as the factor to be considered when deciding whether to permit...more

5/29/2014 - Appeals Canada Motion To Intervene Settlement

R. v. Singh: Ontario Court of Appeal Provides Guidance on Precedential Value of Short Endorsements

The Ontario Court of Appeal’s April 17, 2014 decision in R. v. Singh provided guidance on the precedential value of short endorsements, noting that great caution must be taken before using such short endorsements to stand for...more

5/6/2014 - Appeals Canada

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