Marc Rosenberg

The appellant physicians, who performed cosmetic surgery without formal surgical residency, were investigated by the College of Physicians and Surgeons of Ontario for potential professional misconduct or incompetence.

The College sought to have investigators observe their surgical practices, which the appellants refused, arguing the governing legislation did not authorize compelled observation.

The Court of Appeal upheld the Divisional Court's decision, finding that the power to 'inquire into and examine the practice' under s. 76(1) of the Health Professions Procedural Code encompasses the direct observation of a member's practice, particularly to protect the public interest.

The appellant appealed the judgment of Justice Andra Pollak of the Superior Court of Justice dated April 24, 2008, and the subsequent cost award.

The Court of Appeal agreed with the reasons of the lower court judge and dismissed the appeal, awarding costs to the respondent fixed at $8,000.

Following a successful appeal, the appellant police service sought costs of over $90,000.

The Court of Appeal awarded the appellant $20,000 for the costs of the underlying application.

However, the court found the requested appeal costs unreasonable, noting the appeal involved novel issues that the appellant had an institutional interest in resolving.

The court fixed the appeal costs at $25,000, payable by the respondent.

No costs were ordered for or against the interveners.

The respondents were acquitted of operating a commercial motor vehicle in a dangerous or unsafe condition under s. 84(1) of the Highway Traffic Act.

The Crown appealed, arguing that a regulation defining 'critical defects' for the purpose of vehicle impoundment under s. 82.1 should also apply to the offence provision in s. 84(1.1).

The Court of Appeal dismissed the appeal, holding that the regulation explicitly applies only to s. 82.1 and that the legislature intended a higher threshold of danger for a conviction under s. 84(1.1) than for an impoundment under s. 82.1.

The appellant was convicted of two counts of assault against his domestic partner, arising from incidents involving a dog dish and a wicker chair.

He was acquitted of several other related charges.

On appeal, the appellant argued the convictions were unreasonable given the trial judge's finding that the complainant's evidence was incredible and unreliable.

The Court of Appeal agreed, finding no basis to distinguish the convictions from the acquittals, and noting the lack of confirmatory evidence.

The appeal was allowed, the convictions were quashed, and acquittals were substituted.

The appellant mother appealed an order striking her pleadings and granting final sole custody of the parties' two young children to the respondent father.

The motion judge had struck the mother's pleadings due to her repeated failure to comply with interim orders requiring her to return the children from Quebec to Ontario.

The Court of Appeal allowed the appeal, finding that while the motion judge had the power to strike the pleadings, it was a material error to make a final custody order without sufficient evidence to determine the best interests of the children under section 24 of the Children's Law Reform Act.

The matter was remitted for an expedited determination of custody and access.

The appellant was convicted of arson after representing himself at trial.

He had been denied legal aid and his Rowbotham application for state-funded counsel was dismissed by the trial judge, who held that such orders were reserved for cases posing unique challenges.

On appeal, the Court of Appeal found that the trial judge applied too stringent a test.

The case was complex, involving expert witnesses and similar fact evidence, and the appellant lacked the capacity to defend himself effectively.

The Court held that the erroneous denial of counsel resulted in an appearance of unfairness, constituting a miscarriage of justice without the need to prove actual prejudice.

The appeal was allowed and a new trial ordered.

The young person appealed his conviction and sentence for assaulting a child.

The Court of Appeal found no error in the trial judge's analysis of the evidence or her approach to the defence evidence.

The court also upheld the sentence, finding it was not manifestly excessive given the nature of the assaults, the child's age, and the breach of trust.

The appeal was dismissed, save for a consent variation to the probation order allowing the appellant to be alone with his own son.

Following an appeal where success was divided, the Court of Appeal for Ontario issued a costs endorsement ordering that each party bear their own costs.

The respondent, whose criminal charges for sexual offences were withdrawn upon entering a peace bond, applied for jobs requiring a Vulnerable Persons Search.

He signed consent forms authorizing the Toronto Police Service to conduct the search.

The Peel Police Service disclosed the withdrawn charges to the Toronto Police Service.

The respondent obtained an injunction prohibiting the Peel Police Service from disclosing the withdrawn charges.

The Court of Appeal allowed the appeal, holding that the disclosure was authorized by the respondent's consent under s. 32(b) of the Municipal Freedom of Information and Protection of Privacy Act.

The Court also dismissed the respondent's cross-appeal, finding no violation of his Charter rights under ss. 7 and 8.

The appellant appealed his conviction and sentence for aggravated assault.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge properly answered a jury question regarding available verdicts and adequately described the elements of aggravated assault and assault causing bodily harm.

The sentence appeal regarding the length of the probation term was also dismissed, as the court found no error in principle.

The appellant appealed his conviction, arguing that the search warrant should be quashed because the information to obtain it included irrelevant and improper references to the facts underlying his prior murder acquittal.

The Court of Appeal held that while the references were improper, their inclusion was not so flagrant as to amount to an abuse of the search warrant process.

After excising the impugned references, there remained an ample basis for granting the warrant, and no breach of section 8 of the Charter was found.

The appellant appealed his conviction, arguing that a failure to adequately investigate and the loss of video tapes violated his section 7 Charter rights, and that the jury charge was inadequate.

The Court of Appeal dismissed the appeal, finding that the appellant failed to show actual prejudice from the missing evidence, as required by R. v. La.

The court also held that the jury charge was adequate, noting the speculative nature of the missing evidence and the trial judge's use of the standard Lifchus charge.

The appellant appealed his convictions and sentence for trafficking in cocaine, possession of the proceeds of crime, offering to sell cocaine, and possession of cocaine for the purpose of trafficking.

At trial, the appellant's primary defence was mistaken identification, claiming he did not sell drugs to the undercover officer and offering exculpatory explanations for circumstantial evidence.

The Court of Appeal found no error in the trial judge's appreciation of the evidence or legal analysis, noting the trial judge's conclusions were reasonable and grounded in the evidence.

The sentence appeal was also dismissed, as the sentence was appropriate given the seriousness of the offences, the appellant's lengthy record, and the paramount considerations of denunciation and deterrence.

The appellant appealed his robbery conviction, arguing his s. 10(b) Charter right to counsel was violated when police questioned him after he asked to speak to a specific lawyer.

The trial judge found the appellant was eager to tell his story and only wanted to ensure his lawyer was available for his bail hearing the next day.

The Court of Appeal upheld the trial judge's findings, concluding the appellant was not interested in consulting counsel before speaking to the police and therefore his rights were not violated.

The appeal was dismissed.

The appellant was convicted of incest against his developmentally challenged daughter.

On appeal, he argued the trial judge erred in handling the issue of the complainant's motive to fabricate and that Crown counsel engaged in misconduct.

The Court of Appeal found that the Crown improperly cross-examined witnesses on the complainant's motive to fabricate, made inflammatory comments in closing, and improperly injected personal opinion.

The trial judge failed to provide necessary corrective instructions.

The cumulative effect of these errors undermined the fairness of the trial.

The appeal was allowed and a new trial ordered.

The appellant company was charged under the Occupational Health and Safety Act following a workplace accident where an employee was injured using a table saw.

The trial judge stayed the charges, finding the appellant's right to a fair trial under s. 11(d) of the Charter was irreparably prejudiced because a potential defence witness (a supervisor) died before charges were laid.

The provincial offences appeal court lifted the stay.

The Court of Appeal dismissed the appeal, holding that the appellant failed to establish actual prejudice, as there was no evidence the deceased witness would have materially assisted the defence, and actual prejudice cannot be presumed from the mere fact of lost evidence.

The appellant was convicted of first degree murder and arson after his wife died in a deliberately set house fire.

The appellant appealed, arguing the trial judge misdirected the jury on after-the-fact conduct regarding his fabricated statements to an insurance adjuster, and on the burden of proof concerning his defence that the deceased committed suicide.

The Court of Appeal dismissed the appeal, finding that the circumstances of the fabricated statements could constitute independent evidence of concoction, and that the jury was properly instructed on the burden of proof and reasonable doubt.

The appellant challenged convictions for sexual assault on the basis that the trial judge met privately with counsel during the complainant's cross-examination while the appellant was absent and no record was made.

The Court of Appeal held that the in-chambers discussion formed part of the trial because the judge expressed views on witness credibility and raised the effect of the accused testifying, matters engaging the accused's vital interests.

The appellant's absence affected his ability to make full answer and defence because the discussion influenced the decision not to testify.

The court declined to apply the proviso under s. 686(1)(b)(iv), holding that the procedure also had the potential to undermine public confidence in the administration of criminal justice.

The appellant appealed his conviction following a guilty plea, seeking to withdraw the plea.

The Court of Appeal admitted fresh evidence and found that a combination of factors, including retained counsel's failure to meet with the appellant for 8 months, substitute counsel's lack of preparation, the appellant's difficulties in custody, language barriers, and his consistent assertions of innocence, resulted in a miscarriage of justice.

The appeal was allowed, the guilty plea was set aside, and a new trial was ordered on all charges.