Marc Rosenberg

The appellants appealed the dismissal of their claim for specific performance requiring the transfer of property pursuant to a first right of refusal and an agreement of purchase and sale.

They also sought leave to appeal the costs order.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's factual findings that there was no first right of refusal and that the agreement of purchase and sale was unenforceable due to the improbability of obtaining severance.

Leave to appeal costs was also refused.

The appellant, a former bookkeeper, appealed her conviction for fraud involving four company cheques made payable to and cashed by her.

She argued the conviction was unreasonable, the trial judge failed to address inconsistencies in Crown witness testimony, and the trial judge improperly shifted the burden of proof by noting the lack of a meaningful explanation.

The Court of Appeal dismissed the appeal, finding the Crown's documentary evidence was uncontradicted, the defence theories were speculative, and the conviction did not rely on witness credibility.

The trial judge's comment on the lack of explanation did not shift the burden of proof but merely observed the uncontradicted nature of the evidence.

The appellant appealed his conviction on the basis that the trial judge erred in instructing the jury on wilful blindness.

The Court of Appeal agreed, finding there was no air of reality to wilful blindness and the trial judge failed to refer to any evidence supporting it.

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

The appellants appealed an order dismissing their application to set aside the dismissal of their action.

The action had been dismissed in May 2012, but the appellants subsequently brought two motions for default judgment without disclosing the dismissal or complying with the Registrar's directions.

The motion to set aside the dismissal was brought over a year later.

The Court of Appeal found no error in the application judge's conclusion that the appellants failed to move promptly and lacked a valid explanation for the delay.

The appeal was dismissed with costs.

The appellant appealed his conviction for trafficking in cocaine, arguing the trial judge erred in assessing the eyewitness identification evidence of undercover police officers.

The Court of Appeal dismissed the appeal, finding the trial judge was not required to explicitly mention the frailties of eyewitness identification and properly relied on the officers' close-proximity observations of the appellant's distinctive facial scar and voice pattern.

The appellant appealed his conviction and sentence for possession of a large amount of heroin.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's finding of wilful blindness based on admissible evidence of earlier shipments.

The sentence appeal was also dismissed, as the trial judge properly considered the parity principle and mitigating factors.

Applying the principle from R. v. Sidhu, the court held that the appellant's mistaken belief in the nature of the substance seized could not be treated as a mitigating factor.

The appellant appealed his total sentence of 4.5 years, comprising 3 years for a 10-year child abduction and 18 months consecutive for failing to appear.

The Court of Appeal found the sentence was not excessive, noting the seriousness of the abduction and the aggravating circumstances of the failure to appear, which involved breaching an undertaking to the court to return the children.

The appeal was dismissed.

The self-represented appellant applied to review two orders: one fixing the date for his appeals and another dismissing his application for the appointment of specific counsel under s. 684 of the Criminal Code.

The appellant had previously dismissed or refused to cooperate with three appointed counsel, leading to the appointment of amicus curiae.

The Court of Appeal dismissed the applications, finding that the appointment of amicus was appropriate to control the court's process and prevent further frustration of the proceedings, consistent with the Supreme Court's decision in Ontario v. Criminal Lawyers' Association.

The appellant was convicted of theft and fraud-related offences for stealing computer source code from his former employer and using it to sell competing software.

He appealed his convictions and 30-month sentence, arguing that his Charter rights under ss. 11(a) and 11(b) were violated due to an eight-year delay between the laying of charges and his arrest, and subsequent delays in bringing him to trial.

The Court of Appeal dismissed the appeal, finding no actual or inferred prejudice to his fair trial rights under s. 11(a), and concluding that the post-arrest delay under s. 11(b) was largely attributable to the appellant's own actions and waivers.

The court also upheld the sentence, noting the massive scale of the fraud.

The 15-year-old appellant was convicted of first-degree murder for counselling and encouraging her boyfriend to kill the victim.

She appealed her conviction, arguing that two videotaped statements to police were inadmissible under s. 146 of the Youth Criminal Justice Act, and appealed her adult sentence of life imprisonment without parole for seven years.

The Court of Appeal dismissed the conviction appeal, finding the appellant was not detained during the first interview and had validly waived her right to counsel in the second.

The sentence appeal was also dismissed, as the trial judge correctly concluded that a youth sentence would not provide sufficient long-term supervision to protect the public given the appellant's psychological profile and risk of reoffending.

The appellant was convicted of second-degree murder.

On appeal, he argued the trial judge erred by permitting the Crown to cross-examine a recanting witness on a prior inconsistent police statement under s. 9(2) of the Canada Evidence Act, and that the Crown's closing address improperly invited the jury to use the statement for its truth.

He also challenged the adequacy of the Vetrovec warning regarding the Crown's key witness.

The Court of Appeal dismissed the appeal, finding the limited cross-examination served the ends of justice, the jury was properly instructed on the use of the statement, and the Vetrovec warning adequately cautioned the jury while properly identifying independent confirmatory evidence.

The appellant appealed his four-year global sentence for gun and drug offences.

Relying on the recent decision in R. v. Nur, the Court of Appeal reconsidered the sentence but concluded that the four-year term remained fit, noting that the combination of gun and drug offences poses a pernicious threat to public safety.

The appeal was dismissed.

The appellant was stopped for speeding and arrested for breaching his recognizance curfew.

During a search of the vehicle incident to that arrest, the officer smelled raw marihuana, leading to a second arrest for possession and a further search of the trunk, which revealed 18.1 pounds of marihuana.

The appellant appealed his conviction for possession for the purpose of trafficking, arguing the search violated his s. 8 Charter rights.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the officer had reasonable and probable grounds for the initial arrest, the search of the front of the car was justified for officer safety, and the officer's testimony regarding the smell of marihuana was credible, making the subsequent search of the trunk lawful.

The Crown sought leave to appeal a summary conviction appeal court decision that ordered a new hearing regarding a firearms prohibition and forfeiture order under s. 117.05 of the Criminal Code.

The appeal judge had found that the hearing judge reversed the burden of proof.

The Court of Appeal refused leave to appeal, finding that the Crown failed to raise a question of law of public importance or demonstrate a clear error of law requiring leave for the due administration of justice.

The young person appealed a Superior Court judgment granting the Crown's application for certiorari and mandamus, which quashed a preliminary inquiry discharge on first degree murder and directed committal.

The Court of Appeal dismissed the appeal, agreeing that the preliminary inquiry judge committed jurisdictional error by weighing competing inferences regarding the knowledge of the likelihood of death.

The Court affirmed that mandamus was appropriate because committal for the full offence was legally inevitable given the evidence.

The appellants appealed a judgment granting the developer's application for declarations that the appellants were bound by agreements of purchase and sale for two hotel investment condominium units, and dismissing the appellants' application for a refund of deposits.

The appellants argued that changes to the building, including a reduction from 70 to 60 stories and changes to PATH access, constituted material changes under the Condominium Act, entitling them to rescission.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the May 2012 disclosure statement was a revised statement under s. 74(3) of the Act and that the changes were not material changes under the objective standard in s. 74(2), as they did not reasonably affect the value of the units for investment purposes.

The appellant appealed his dangerous offender designation and indeterminate sentence, arguing the sentencing judge failed to properly consider reducing his risk through chemical castration.

He sought a long-term offender designation combined with a section 810.2 recognizance.

The Court of Appeal dismissed the appeal, finding the appellant's condition intractable and that he could not be controlled within the duration of a long-term sentence.

The Court reaffirmed that a section 810.2 order cannot be used as a stop-gap for highly dangerous offenders who fail to meet the long-term offender criteria.

The respondent, an elderly woman, was involved in a motor vehicle accident in Florida while driving with a driver's licence that had expired four months prior.

Her automobile insurer denied coverage on the basis that she breached statutory condition 4(1) by driving without authorization.

The application judge found the respondent exercised due diligence and declared the insurer had a duty to defend and indemnify.

On appeal, the Court of Appeal held that the due diligence defence was not made out, as the respondent failed to take reasonable care regarding her licence renewal.

However, the Court held that the breach constituted imperfect compliance rather than non-compliance with a condition precedent, making relief from forfeiture available under s. 98 of the Courts of Justice Act.

The Court granted relief from forfeiture, noting the respondent's good faith, the minor nature of the breach, and the massive disparity between the loss of $1 million in coverage and the lack of prejudice to the insurer.

Appeal from an application decision concerning the effect of dissolution of a two-person accounting partnership on a restrictive covenant in the partnership agreement.

The application judge held that the appellant had withdrawn, thereby triggering a capital-account reduction tied to clients transferring to the departing partner, and directed a trial on damages.

The Court of Appeal held that, on a general dissolution of a two-member firm, the firm ceased to exist and absent an express surviving contractual restraint, the parties were free to pursue their own practices.

The finding that the appellant had withdrawn so as to trigger the covenant was set aside, the impugned paragraphs of the judgment were deleted, and the cross-appeal was unnecessary to decide.

The appellant appealed a firearm conviction and sentence arising from multiple firearm-related offences.

The court held that the evidentiary record did not establish knowledge that the firearm had been obtained by the commission of an offence, and therefore the conviction under s. 96(2) could not stand.

On sentence, the respondent conceded reassessment was required in light of appellate authority concerning firearm sentencing.

The court quashed the s. 96(2) conviction and reduced the firearm sentences, while imposing an eight-month consecutive sentence on the s. 117.01(3) count.