Marc Rosenberg

The appellant landlord appealed a decision dismissing its appeal from a claims officer's ruling in a receivership proceeding.

The appellant argued the claims officer erred in characterizing certain assets as chattels rather than fixtures, improperly placed the burden of proof on the appellant, rejected expert evidence regarding how the assets were secured, and erred in assessing damages.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the factual determination of chattels versus fixtures, and no error in principle regarding the burden of proof or damages assessment.

The appellants appealed a summary judgment order dismissing their action against the respondents, who had built the house in question.

The Court of Appeal found that while the motion judge misstated the test under the new summary judgment rule, the critical error was finding no evidence to establish knowledge or causation.

The Court concluded there was sufficient evidence for a trial judge to find knowledge and causation, particularly because the respondents built the house.

The appeal was allowed and the matter remitted for trial.

The appellant appealed a summary judgment dismissing her claim for equalization of net family property and orders to set aside two separation agreements.

The motion judge had found her claim was statute-barred under s. 7(3) of the Family Law Act and refused to grant an extension of time under s. 2(8).

The Court of Appeal found the motion judge erred in his application of the s. 2(8) test, particularly regarding apparent grounds for relief, good faith delay, and substantial prejudice.

The appeal was allowed, the summary judgment was set aside, and the extension of time was granted.

The appellant appealed his conviction for second-degree murder.

The Crown's case relied heavily on the testimony of an accomplice and similar fact evidence of two prior incidents involving the appellant.

The Court of Appeal held that the trial judge erred in admitting the similar fact evidence, as its prejudicial effect outweighed its limited probative value.

The evidence lacked sufficient similarity to the charged offence and posed a significant risk of moral and reasoning prejudice.

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

The appellant appealed an order dismissing her attempt to set aside or vary a previous order requiring her to make an equalization payment of $32,211.11.

She alleged the original order was obtained by fraud, mistake, or without notice.

The Court of Appeal found there was proper service and notice, and rejected her new argument regarding a $48,000 debt as it was raised for the first time on appeal and lacked evidentiary support.

The appeal was dismissed with costs.

The appellant, former Chief Financial Officer of the respondent corporation, appealed the dismissal of his application for a change of control payment.

The agreement entitled him to a payment if he ceased to be an officer 'within six months of the date on which control of the Corporation changes'.

The application judge held this required termination to occur after the change of control.

The Court of Appeal reversed, holding that the plain language and commercial purpose of the agreement applied as long as the termination and change of control occurred within six months of each other, regardless of which came first.

The appeal was allowed and the payment ordered.

The appellant was severely burned after tripping over cinder blocks and falling into a fire pit at a party hosted by tenants on a residential property.

The trial judge found the tenants and the appellant each 50% at fault but dismissed the action against the landlord, finding he owed no duty of care because the rental agreement relieved him of maintenance obligations.

The Court of Appeal allowed the appeal, holding that the landlord admitted to being an occupier in his pleadings and that the Landlord and Tenant Act imposes a non-waivable statutory duty on residential landlords to maintain the premises.

The landlord was found jointly and severally liable with the tenants for 50% of the appellant's damages.

The appellants successfully sued the respondents for damages from a motor vehicle accident.

Prior to trial, the respondents' insurer twice refused the appellants' requests to participate in mandatory mediation under the Insurance Act, claiming the injuries did not meet the statutory threshold.

The trial judge awarded partial indemnity costs, finding the insurer's refusal was a genuine available position.

The Court of Appeal allowed the appeal, holding that participating in mediation is a mandatory statutory obligation with no exceptions.

The Court increased the trial costs award by $40,000 as a remedial penalty for the insurer's failure to mediate.

The appellant, who suffers from a delusional disorder and believes he is the rightful King of Canada, appealed a decision upholding the Consent and Capacity Board's finding that he was incapable of consenting to treatment with anti-psychotic medication.

The appellant argued that the test for capacity under section 4 of the Health Care Consent Act was unconstitutionally vague and that the Board's decision was unreasonable.

The Court of Appeal dismissed the appeal, finding that the statutory test was not vague and had been defined with reasonable precision by the Supreme Court of Canada.

The Court held that the Board's decision was reasonable, as the appellant's mental condition prevented him from recognizing his illness and appreciating the consequences of refusing treatment.

The Crown appealed the accused's acquittal on a charge of attempting to obstruct justice.

The accused had a friend contact the complainant in his sexual assault case, threatening a civil lawsuit and offering a shopping spree if she retracted her complaint.

The trial judge acquitted the accused, finding he lacked the requisite mens rea because he only wanted the complainant to tell what he believed was the truth.

The Court of Appeal allowed the appeal, holding that the mens rea is established when an accused intentionally uses corrupt means to dissuade a witness from testifying, regardless of whether the accused's motive was to ensure the truth was told.

A new trial was ordered.

The appellant sought a review of a single judge's decision dismissing his motion for a stay, and appealed an application judge's decision dismissing his motion to vary support orders based on a material change in circumstances.

The Court of Appeal dismissed the review, noting the underlying appeal had already been dismissed for failure to pay support arrears.

The Court also dismissed the appeal, finding no reversible error in the application judge's rejection of the appellant's disability evidence.

The appellant's attempt to introduce fresh medical evidence on appeal was rejected as procedurally flawed and substantively insufficient to affect the result.

The appellant appealed his sexual assault conviction, arguing the trial judge improperly relied on the complainant's prior consistent statements to bolster her credibility.

The summary conviction appeal judge found an error but applied the curative proviso on his own initiative to dismiss the appeal.

The Court of Appeal held that while the appeal judge erred in applying the proviso without submissions, there was no underlying error by the trial judge, who properly used the statements as narrative and to explain inconsistencies.

The appeal was dismissed.

The appellant appealed a decision setting aside his bankruptcy discharge.

The Court of Appeal dismissed the appeal, finding that the issue of standing was not raised below and could not be raised for the first time on appeal.

The court also upheld the admission of fresh evidence and agreed that there were grounds to set aside the discharge under s. 158(j) of the Bankruptcy and Insolvency Act.

The appellant appealed the trial judge's decision, arguing errors of fact regarding credibility findings and the treatment of a family physician's opinion, as well as an error in principle regarding costs.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility findings were available on the record and that he was not bound to accept every aspect of the medical opinion.

The court also upheld the trial judge's finding that the Simplified Procedure would not have been appropriate given how the defence was conducted.

The appellant appealed on the basis that the trial judge proceeded with the trial in her absence without inquiring into why she left the courtroom.

The Court of Appeal found no error, noting the appellant had stated she could not go through a trial, lacked resources for a lawyer, felt the proceedings were a charade, and voluntarily decided to leave.

The appeal was dismissed.

The appellant mother appealed a trial judgment ordering joint custody of the parties' two children, arguing the parents could not communicate, there was a history of domestic violence, and the order lacked a dispute resolution mechanism.

The Court of Appeal dismissed the appeal, finding the trial judge had an evidentiary basis to conclude the parties could effectively communicate once court orders preventing contact were lifted.

The court also found no error in the trial judge's assessment of the domestic abuse allegations or the access schedule.

The appellant appealed an order granting an injunction to prevent him from developing land without a permit from the Conservation Authority.

The appellant had a history of developing land without a permit and explicitly stated his intention to continue doing so without seeking one.

The Court of Appeal dismissed the appeal, finding that while the Authority typically relies on penal provisions to ensure compliance, the injunction was justified in this case to protect the public interest in the wetland environment.

The appellants, electors in the City of Vaughan, sought to appeal a Superior Court decision dismissing their application to remove the respondent mayor from office for an alleged conflict of interest.

The Divisional Court quashed the appeal, holding that the Municipal Conflict of Interest Act only provides a right of appeal from an order imposing a penalty under s. 10, not from a finding of no conflict.

The Court of Appeal upheld the Divisional Court's decision, confirming that the Act is a complete code and does not grant electors a right of appeal when a member is found not to be in a conflict of interest.

The appellant was convicted of sexual assault in 1995 based on the testimony of a single witness.

After a remand from the Supreme Court of Canada, the Court of Appeal considered the admissibility of fresh evidence.

The Court found that trial counsel provided ineffective assistance by failing to use available evidence that could have undermined the credibility of the Crown's sole witness, including evidence of a motive to lie and failure to report the incident.

The Court admitted the fresh evidence, allowed the appeal, quashed the conviction, and ordered a new trial, concluding that the ineffective assistance resulted in a miscarriage of justice.

The appellant appealed his conviction, arguing the trial judge misapprehended the evidence by finding his statement to the police was inconsistent with his testimony.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to find the statement inconsistent, especially given the appellant's own testimony concerning its interpretation.

The court found no basis to interfere with the trial judge's findings of fact.