Marc Rosenberg

The appellant appealed his conviction on the basis that the trial judge erred in instructing the jury that his failure to call or report to the police could be considered as consciousness of guilt.

The Court of Appeal agreed, finding that the direction infringed the holding in R. v. Turcotte.

The court declined to apply the curative proviso as the Crown's case was not overwhelming and the error could have impacted trial fairness.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction, arguing the trial judge misapprehended the nature of his denials during his statement to the police.

The Court of Appeal dismissed the appeal, finding the trial judge's characterization of the statement as cryptic and short on details was reasonably open to her.

The appeal from sentence was dismissed as abandoned.

The appellants appealed a motion judge's decision dismissing their motion to set aside a default judgment and writ of possession.

The appellants failed to provide a plausible explanation for their delay in moving to set aside the judgment.

The Court of Appeal rejected an attempt to introduce fresh evidence regarding an alleged forbearance agreement, finding it would fail the Palmer test as the evidence was available at the time of the original motion.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed his conviction for fraud, arguing the trial judge erred in failing to find he had a colour of right defence.

The trial judge found the appellant forged time sheets to obtain payments from a company, despite the appellant's honest belief that the company was liable to him in damages for breach of contract.

The Court of Appeal dismissed the appeal, applying the mens rea test for fraud from R. v. Théroux.

The Court held that the appellant's personal belief of entitlement to damages did not negative the mens rea, as he intentionally committed a deceitful act knowing it could cause deprivation.

The self-represented appellant appealed an order regarding the care of and access to an incapable person for whom she acted as attorney for property and personal care.

The appellant abandoned arguments regarding deficient service of the cross-motion.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's findings of fact, noting the focus was properly on the interests of the incapable person rather than the appellant.

The appellant appealed her custodial sentence.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by failing to obtain Gladue information for the Aboriginal offender and by incorrectly characterizing the offence as a breach of trust.

The court admitted fresh evidence regarding the impact of residential schools and pervasive oxycontin use in the appellant's community.

The sentence of imprisonment was reduced to time served, with the 18-month probation order remaining in place.

The appellants appealed a judgment regarding an unpaid account, challenging the admissibility of business records and the pre-judgment interest rate.

The Court of Appeal dismissed the appeal on liability, holding that a lack of personal knowledge does not affect the admissibility of business records under the Evidence Act.

The court modified the judgment slightly to set the interest rate at 2 percent and dismissed the appeal in all other respects, awarding costs to the respondent.

The appellant appealed a judgment dismissing its request for rectification of a definition in an Agreement of Purchase and Sale based on mutual mistake.

The dispute centered on the definition of 'Gross Floor Area' (GFA) and whether it should be rectified to correspond with a site-specific by-law rather than the City of Toronto By-law specified in the agreement.

The Court of Appeal dismissed the appeal, finding no mutual mistake because the respondent clearly intended to use the City of Toronto By-law definition to determine any increase in GFA.

The appellant appealed his 1995 conviction for aggravated assault in relation to the death of his infant son, which was based on a guilty plea.

The plea was heavily influenced by the unequivocal opinion of a pathologist that the infant died from non-accidental head injury.

Fresh expert evidence cast considerable doubt on that opinion, offering non-culpable explanations for the autopsy findings.

The Court of Appeal admitted the fresh evidence, found the conviction unreasonable, set aside the guilty plea, and entered an acquittal.

The appellant manufactured and sold a fuel storage tank to the respondent.

Less than five months after being put into service, the tank leaked diesel fuel due to internal corrosion, causing significant damage.

The trial judge awarded damages to the respondent for negligence and breach of the implied warranty under the Sale of Goods Act.

On appeal, the Court of Appeal upheld the trial judge's finding that the amendment to plead the Sale of Goods Act was not statute-barred.

The Court dismissed the appeal, finding that the appellant breached the implied condition of merchantability under s. 15(2) of the Sale of Goods Act, as the defect existed at the time of delivery even if its exact cause was unknown.

The respondent's cross-appeal on costs was allowed.

The purchaser bought a house and subsequently discovered serious latent structural and plumbing defects.

The vendors had completed a Seller Property Information Sheet (SPIS) indicating no ongoing problems, which the real estate agent, acting for both parties, passed on without verification.

The purchaser recovered under her title insurance policy but also sued the vendors and the agent.

The trial judge found the vendors liable for negligent misrepresentation but dismissed the claims against the agent.

On appeal, the Court of Appeal upheld the vendors' liability and the application of the private insurance exception to prevent deduction of the insurance proceeds.

The Court allowed the purchaser's cross-appeal, finding the real estate agent negligent for failing to verify the vendors' representations or recommend an independent inspection, and apportioned fault equally between the vendors and the agent.

The appellants appealed a partial summary judgment granted on a $400,000 promissory note given to the respondent vendor on the closing of a real estate transaction.

The appellants sought to set-off claims against the note, but the motion judge only permitted two conceded claims to go to trial and granted summary judgment for the balance.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that there were no genuine issues for trial regarding the other set-off claims, nor in his decision not to stay enforcement of the judgment pending the trial of the counterclaims.

The appellant appealed an order of the Superior Court of Justice.

On consent, the Court of Appeal allowed the appeal, set aside the lower court's order, and ordered no costs.

The appellant appealed his sentence of six months' imprisonment for failing to comply with a probation order.

He had contacted a young woman whom he was previously convicted of assaulting, in breach of a no-contact condition.

Despite the Crown and defence suggesting shorter sentences, the sentencing judge imposed a longer term, emphasizing specific deterrence due to the appellant's lengthy criminal record and history of breaches.

The Court of Appeal found no error in principle and dismissed the appeal, holding that the sentence was fit.

The appellant appealed from a decision dismissing her application for certiorari to quash her convictions for offences under a municipal by-law and the Dog Owners' Liability Act.

The reviewing judge held that certiorari was not available because the appellant should have pursued her appeal rights under the Provincial Offences Act.

The Court of Appeal agreed, noting that section 141(3) of the Provincial Offences Act expressly prohibits applications to quash a conviction where an appeal is provided.

The appeal was dismissed.

The appellant appealed his convictions, arguing that the trial judge's jury charge regarding wilful blindness was confusing in relation to the charges of possession for the purpose of trafficking and possession of a weapon for a dangerous purpose.

The Court of Appeal dismissed the appeal, finding that although the trial judge initially gave a confusing instruction, it was later clarified in the clearest terms, and the decision trees provided to the jury made the distinction clear.

The appellants were convicted of unlawful confinement, and Mustafa was additionally convicted of uttering death threats and possession of a firearm.

They appealed their convictions, arguing the trial judge erred in relying on confirmatory evidence to support the complainant's testimony and that the verdicts were inconsistent.

The Court of Appeal dismissed the conviction appeals, finding the trial judge's credibility assessments and reconciliation of verdicts were reasonable.

Lakatos and Mohammad also appealed their conditional sentences.

Mohammad's sentence appeal was dismissed.

Lakatos's sentence appeal was allowed, and his sentence was reduced to time served because the trial judge had incorrectly assumed he would serve his conditional sentence in the community, whereas immigration authorities had detained him for deportation.

The appellant appealed his dangerous offender designation, arguing the sentencing judge erred by failing to consider the newly enacted long-term offender provisions.

The Crown conceded the error.

However, the Court of Appeal dismissed the appeal, applying the Johnson framework to find no reasonable possibility that the designation would have been different.

The court noted the appellant's high risk to reoffend, diagnoses of pedophilia and sexual sadism, and unsuitability for control in the community.

The Attorney General appealed orders setting rates of compensation for amicus curiae appointed in three criminal proceedings.

The Crown argued that courts have no jurisdiction to fix the rate of compensation for amicus curiae, as only Parliament can allocate public funds.

The Court of Appeal dismissed the appeals, holding that both superior and statutory courts have the jurisdiction to fix the rate of compensation for amicus curiae as a necessary incident of their jurisdiction to appoint amicus.

The court found that such orders do not infringe constitutional principles and are authorized by the Proceedings Against the Crown Act and the Financial Administration Act.

The trial judges did not err in setting rates that exceeded legal aid rates, as amicus serves the court and the administration of justice, and the rates were based on appropriate factors.

The appellant sought leave to appeal a Summary Conviction Appeal Court decision that set aside his acquittal for impaired driving and ordered a new trial.

The appellant argued the appeal judge made a clear error of law.

The Court of Appeal found no error, agreeing with the appeal judge that the trial judge misapprehended the evidence and failed to apply the proper legal principles from Stellato, specifically that any degree of impairment is sufficient and that fatigue does not foreclose the effect of alcohol.

Leave to appeal was refused.