Marc Rosenberg

The appellant rented a hot water heater to the respondent.

The heater leaked, causing property damage.

The trial judge found the appellant liable based on an implied warranty of fitness, and the Divisional Court dismissed the appeal.

On further appeal, the Court of Appeal held that section 9(2) of the Consumer Protection Act, 2002 applied retrospectively to the rental agreement, importing the implied warranty of fitness from section 15 of the Sale of Goods Act.

The court found the appellant breached this warranty because the water heater was not reasonably fit for its purpose.

The appeal was dismissed.

The appellant, a caregiver, was convicted of fraud after emptying the elderly complainant's savings account of over $126,000.

The complainant provided a videotaped statement to police but died before trial.

The trial judge admitted the statement under the principled approach to hearsay.

On appeal, the appellant argued the statement lacked threshold reliability and that its admission violated trial fairness, relying on European Court of Human Rights jurisprudence.

The Court of Appeal dismissed the appeal, holding that the statement was sufficiently reliable given the oath, video recording, and corroborating bank records.

The 21-month custodial sentence was also upheld due to the serious breach of trust.

The Crown appealed a decision ordering the Ontario Provincial Police to release the respondent's seized firearms to his brother.

The respondent had been sentenced to probation with a condition to abstain from possessing weapons.

The Crown argued the firearms were automatically forfeited under s. 115 of the Criminal Code.

The Court of Appeal held that while the probation condition constituted a prohibition order, the respondent was not in possession of the firearms at the commencement of the order because they were in police custody.

Therefore, s. 115 did not apply, and the appeal was dismissed.

The appellant appealed his nine-year sentence for importing 4.1 kg of cocaine.

The trial judge found that the appellant organized the importation and was in a superior position to the 19-year-old vulnerable courier.

The Court of Appeal found no error in principle and held that the sentence was not demonstrably unfit given the appellant's role and the multi-kilo quantity of cocaine.

The appeal was dismissed.

The appellant wife appealed a trial decision ordering her to pay an equalization payment of $117,514.50 and costs to the respondent husband.

The primary issue was the division of the husband's pension, specifically whether the wife was entitled to a share of the pension's growth during their five-and-a-half-year pre-marital cohabitation period based on unjust enrichment.

The Court of Appeal dismissed the appeal, finding no unjust enrichment as the relationship did not constitute a joint family venture and the wife had not suffered a corresponding deprivation.

The Court also rejected arguments regarding the application of new pension valuation legislation, unequal division of net family property, instalment payments, trial fairness, and costs.

The appellant appealed his conviction and four-year sentence for sexual assault and breach of probation.

The appellant argued the trial judge failed to adequately address a gap in the complainant's memory shortly before the assault.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons sufficiently addressed the live issues of credibility and reliability, noting that the complainant clearly expressed her lack of consent during the sexual acts regardless of any prior memory gap.

The sentence appeal was also dismissed as the four-year term was within the appropriate range given the appellant's prior record and the circumstances of the offence.

The appellant bank appealed a trial judgment finding it liable to its customer.

The Court of Appeal dismissed the appeal, holding that while the trial judge made some factual errors, there was no substantial wrong or miscarriage of justice.

The trial judge was entitled to find a special relationship existed between the bank and the customer, taking it outside the normal debtor-creditor relationship, and that the bank's employee breached the standard of care by providing misleading information.

The appeal was dismissed with a minor correction to the damages calculation.

The appellant appealed a motion judge's decision regarding an agreement of purchase and sale.

The appellant argued there was a denial of natural justice because his materials were not originally before the motions judge, and that the motions judge erred in interpreting the time for waiving a condition.

The Court of Appeal dismissed the appeal, finding the appellant had an opportunity to present his argument and the motions judge correctly concluded as a matter of law that the time for waiving the condition expired at midnight, not 4:00 p.m.

The appellant appealed an order striking his pleadings and directing an uncontested trial due to his failure to comply with disclosure orders since 2006.

The Court of Appeal found no error in the motions judge's exercise of discretion, noting that lesser remedies were considered and the order was reasonable.

The appeal was dismissed with costs.

The appellant appealed the dismissal of his application seeking to compel the respondents to consent to severing a one-acre parcel of land pursuant to a memorandum of agreement.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the relevant clause lacked sufficient certainty on essential terms, such as location, dimensions, title, and price, to be legally enforceable.

The appellant appealed a motion judge's finding that the essential character of his dispute with the respondent union concerned the duties of fair representation and fair referral under the Labour Relations Act, 1995.

The appellant sought to separate the issue of his termination to pursue it in the courts.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the termination was part of the ongoing dispute regarding fair representation, and noting that unnecessary bifurcation of proceedings from the same factual matrix should be avoided.

The appellant challenged the jurisdiction of the Ontario court to hear family law and divorce proceedings commenced by the respondent, arguing neither party was ordinarily resident in Ontario for at least one year prior to the commencement of the proceedings under s. 3(1) of the Divorce Act.

The motion judge found the respondent was ordinarily resident in Ontario and took jurisdiction simpliciter, leaving the issue of the most appropriate forum for trial.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's findings of fact regarding residency.

A motion to admit fresh evidence was also dismissed.

Costs of $10,000 were awarded to the respondent.

The appellant, a lawyer, was convicted of fraud, forgery, and uttering forged documents after deceiving an elderly investor into providing a mortgage loan.

He appealed his conviction, arguing his s. 11(b) Charter right to be tried within a reasonable time was violated, and appealed his 22-month custodial sentence.

The Court of Appeal dismissed the conviction appeal, finding the delay was not unreasonable.

However, the Court admitted fresh evidence showing the appellant had secured the outstanding restitution amount.

Based on this fresh evidence, the Court allowed the sentence appeal and reduced the sentence to 16 months' incarceration.

The accused was convicted of indecent exposure based primarily on the non-expert recognition evidence of a transit officer who identified him from a surveillance video still.

The trial judge admitted the evidence without a voir dire.

The summary conviction appeal judge found a voir dire should have been held but applied the curative proviso, concluding the evidence would inevitably have been admitted.

The Court of Appeal allowed the appeal and ordered a new trial, holding that while the 'prior acquaintance/better position' test applies, it was not inevitable that the evidence would have been admitted had a voir dire revealed the officer's familiarity was based on a single brief encounter two years prior.

The Crown appealed the accused's acquittal on drug and weapons charges, which followed the trial judge's exclusion of evidence seized from the accused's residence.

The police had obtained search warrants for the accused's restaurant and residence based primarily on information from a confidential informant.

The Court of Appeal found that while the warrant for the restaurant was validly issued, the information supporting the residence warrant was insufficient, as it lacked details about the informant's source of knowledge regarding drugs in the home.

The Court concluded that the search of the residence violated section 8 of the Charter.

Applying the Grant framework, the Court upheld the exclusion of the evidence under section 24(2), noting that the police conduct in drafting the Information to Obtain was careless and misleading, rendering the breach serious.

The appeal was dismissed.

The appellant appealed a partial summary judgment granted in favour of the respondent regarding spray foam insulation services.

The appellant argued that its defence of equitable set-off required the entire matter to proceed to trial.

The Court of Appeal upheld the motions judge's factual distinction between the types of services provided, noting that the attic insulation and related set-off claims would still proceed to trial.

The appeal was dismissed.

The appellants appealed a decision of the Superior Court of Justice.

The Court of Appeal found that the motions judge's reasons were inadequate to determine the Limitations Act issue.

However, the Court dismissed the appeal on the basis that the action was misconceived, as it had to be brought as a derivative action and no leave was obtained.

The Crown appealed the accused's acquittal on drug and weapons charges after the trial judge excluded evidence seized from his residence under s. 24(2) of the Charter.

The police obtained search warrants for the accused's restaurant and residence based on a confidential informant's tip.

The Court of Appeal found the information to obtain (ITO) for the restaurant was sufficient, but the ITO for the residence lacked detail and failed to indicate the informant's source of knowledge.

The Court upheld the trial judge's finding that the search of the residence violated s. 8 of the Charter and that the evidence should be excluded under s. 24(2), noting the misleading and careless drafting of the ITO.

The appellant, who became a quadriplegic following the incidents, appealed his convictions for five counts of sexual assault against a minor and his 30-month sentence.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the jury charge and concluding the verdict was not unreasonable.

However, the Court allowed the sentence appeal, finding that incarceration was not necessary given the extraordinary circumstances of the appellant's severe physical infirmity, and reduced the sentence to two years less a day to be served conditionally.

Following a successful appeal by the Attorney General of Canada, the parties made written submissions on costs.

The respondents, who were unsuccessful on the appeal, sought costs on the basis that they were public interest litigants raising issues of broad public importance regarding s. 2(d) of the Charter.

The appellant sought costs following the event.

The Court of Appeal set aside the application judge's costs award and ordered no costs for the appeal, finding that while the case raised issues of broad public interest and the jurisprudence had shifted during the appeal, there was no rationale for awarding costs to unsuccessful public interest litigants.