Marc Rosenberg

The appellant appealed an order finding its bid in a receivership sale process to be invalid.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the agreed process required parties to submit their final and best offer by a specified date and that the bids were to remain confidential.

As such, an auction was not contemplated, and the appellant's bid was properly ruled invalid.

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

On consent, the Court of Appeal dismissed the appeal and ordered two of the appellants to pay costs of $8,000 to the respondent.

The appellant appealed a motion judge's decision finding her action was statute-barred.

She sought to admit a 2003 cheque as fresh evidence to show a payment on the mortgages.

The Court of Appeal dismissed the application to adduce fresh evidence because the appellant provided no explanation for failing to adduce it before the motion judge, and dismissed the appeal.

The Crown appealed a conditional sentence of two years less a day imposed on a psychiatrist convicted of two counts of sexual assault against a patient.

The offences occurred over a nine-year period and involved a significant breach of trust, as the offender exploited the patient's vulnerabilities and later orchestrated a cover-up.

The Court of Appeal found the trial judge erred in principle by discounting the victim impact statement due to a pending civil suit and by failing to treat the breach of trust as an aggravating factor.

The appeal was allowed, and the sentence was varied to two years' imprisonment.

The appellant was convicted of abducting her child in contravention of a custody order.

She appealed, arguing the trial judge erred by refusing to leave the defence of necessity to the jury.

The Court of Appeal dismissed the appeal, finding no air of reality to the defence because the appellant had other reasonable legal alternatives, such as participating in the family court proceedings to address her concerns about the child's safety, rather than abandoning the process and abducting the child.

The Court of Appeal issued an endorsement amending paragraph 106 of its reasons released November 26, 2009.

The amendment provides that the respondents are awarded costs of the proceeding below in the amount of $25,000 inclusive of disbursements and GST.

The appellant was convicted of infanticide in 1999 based on the expert pathology evidence of Dr. Charles Smith, who opined that her four-month-old son was smothered.

Following the Goudge Inquiry, fresh expert evidence conclusively refuted Dr. Smith's findings, demonstrating that the child likely died of accidental asphyxia in an unsafe sleeping environment.

The Crown conceded that the fresh evidence should be admitted and the conviction quashed.

The Court of Appeal admitted the fresh evidence, set aside the conviction, and entered an acquittal, noting the profound miscarriage of justice.

The appellant appealed a decision dismissing his application for an injunction to prevent the respondents from keeping a locked gate on a private road, and granting the respondents' cross-application to close the road under the Road Access Act.

The application judge found the appellant had alternate road access via a trail on Crown land using four-wheel-drive vehicles.

The Court of Appeal dismissed the appeal, holding that the application judge's finding of alternate access was supported by evidence.

The Court further held that once alternate access was established, the appellant had no standing to oppose the road-closing application.

The respondents' cross-appeal regarding a condition in the road-closing order was also dismissed.

The appellant bank issued letters of credit to secure payment for shrimp supplied by the respondent to the bank's customer.

The letters of credit required delivery receipts as a precondition to payment.

The bank's customer failed to provide the receipts, and the bank used the proceeds from the sale of the shrimp to pay down the customer's line of credit instead of paying the respondent.

The Court of Appeal upheld the trial judge's finding that the bank was disentitled from relying on the defence of strict documentary compliance because it colluded with its customer to defeat the purpose of the letters of credit and breached its implied duty of good faith.

The Crown appealed a trial judge's decision to stay serious charges against six police officers due to unreasonable delay under s. 11(b) of the Charter.

The trial judge had attributed the 56-month delay primarily to the Crown's failure to make timely disclosure.

The Court of Appeal allowed the appeal for five of the officers, finding the trial judge erred in attributing the delay to disclosure issues rather than the inherent time requirements of a highly complex case.

A new trial was ordered for those five officers.

However, the Court dismissed the appeal regarding the sixth officer, finding the delay in his much simpler case was unreasonable because the Crown unnecessarily insisted his trial follow the complex trial of his co-accused.

The Minister of Justice applied for the forfeiture of recognizances entered into by sureties for two individuals who failed to surrender into custody pending their extradition proceedings.

The Court of Appeal reconsidered the test for estreatment, rejecting both a strict rule of total forfeiture and a purely fault-based approach.

Instead, the court affirmed a broad discretionary approach where the surety's diligence is one of several factors, balanced against the need to maintain the 'pull of bail'.

Applying these principles, the court ordered full forfeiture for one surety who lacked diligence and was likely complicit, and partial forfeiture for the other sureties based on financial hardship, the subsequent apprehension of one fugitive, and the excessive amount of the original bail.

The appellant was convicted by a jury of multiple offences arising from a home invasion, including robbery with a firearm and aggravated assault.

The primary evidence linking the appellant to the crime was a fingerprint found on a car near the scene, along with circumstantial evidence of the perpetrator's flight path.

On appeal, the appellant argued the verdict was unreasonable and the jury was improperly instructed on eyewitness identification.

The Court of Appeal dismissed the appeal, finding the fingerprint and circumstantial evidence were capable of supporting a reasonable inference of guilt, and the jury instructions on identification were adequate.

The appellant was convicted of aggravated assault in relation to severe injuries suffered by his one-month-old baby.

At trial, the identity of the assailant was the central issue, with the appellant denying responsibility and pointing to the child's mother.

The trial judge convicted the appellant based on circumstantial evidence and alleged admissions.

On appeal, the Court of Appeal found that the trial judge failed to properly apply the W. (D.) framework regarding reasonable doubt and credibility, and failed to provide adequate reasons for rejecting the appellant's evidence.

The conviction was quashed and a new trial ordered.

Class counsel appealed an order fixing their fees at $6.3 million plus GST, which was approximately half the amount agreed upon in their contingency fee agreements.

The motion judge had reduced the base fee by 25% and applied a multiplier of 2.6, finding the requested $12 million fee excessive in relation to the $40 million settlement recovery.

The Court of Appeal dismissed the appeal, holding that the motion judge applied the proper test, considered all relevant factors, and made no palpable and overriding error in determining a fair and reasonable fee.

Following a successful appeal by the Estate that dismissed the respondent's constructive trust action, the parties made submissions on the costs of the trial.

The Estate sought costs on a partial or substantial indemnity scale.

The respondent argued she was impecunious and noted the trial judge's undisturbed finding that the deceased intended to benefit her.

The Court of Appeal exercised its discretion to make no costs award for the trial, citing the respondent's financial position and the deceased's unfulfilled but legally unenforceable promise.

The Crown appealed a stay of proceedings granted by the trial judge due to unreasonable delay under s. 11(b) of the Charter.

The respondent was charged with sexual offences and the trial was delayed by a mistrial due to lack of judicial resources and a subsequent adjournment due to the illness of a key witness.

The Court of Appeal found that the trial judge erred in characterizing the entirety of these delays as institutional or Crown delay.

Properly calculated, the institutional delay fell within the Morin guidelines.

The Court of Appeal allowed the appeal, lifted the stay of proceedings, and ordered the trial to proceed.

The appellant was convicted of possession of crack cocaine for the purpose of trafficking after police observed her crouch behind a cooler display in a Beer Store where drugs were subsequently found.

She appealed her conviction, arguing the trial judge failed to properly apply the W.(D.) framework and engaged in speculative reasoning that reversed the burden of proof.

The Court of Appeal dismissed the appeal, finding that the trial judge properly assessed the circumstantial evidence, correctly applied the core tenets of W.(D.), and did not shift the burden of proof to the accused.

The Crown appealed the acquittal of a police officer charged with assault, attempt to obstruct justice, and perjury arising from his arrest of a demonstrator.

The Crown argued the trial judge erred in permitting the defence to challenge potential jurors for cause based on their affiliation with the protest group, and that the challenge procedure was flawed.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in allowing the challenge for cause and that any procedural irregularities in the jury selection process caused no prejudice to the Crown.

The appellant appealed his convictions for sexual assault and sexual interference involving his nieces.

He argued the trial judge erred by failing to consider evidence of collusion and by applying a higher standard of scrutiny to his evidence.

The Court of Appeal found no error regarding the collusion issue but held that the trial judge erred in relying on the appellant's evasive answers to ambiguous and irrelevant questions about whether he found his nieces attractive to reject his testimony.

The appeal was allowed and a new trial ordered.

The appellant home builder appealed a trial judgment dismissing its counterclaim against a developer and its negligence claim against Tarion Warranty Corporation.

The Court of Appeal allowed the appeal against the developer, finding the trial judge failed to make necessary findings of fact and misapprehended a prior court order, necessitating a new trial.

However, the appeal against Tarion was dismissed, as the appellant's failure to file required financial statements for registration renewal was wilful, and Tarion's refusal to accept the late application was justified under the Ontario New Home Warranties Plan Act.