Marc Rosenberg

The respondents were charged with sexual assault.

The trial judge stayed the charges under s. 11(b) of the Charter due to a 25-month delay from arrest to the scheduled trial date, attributing the delay beyond the Morin guidelines to the Crown's late disclosure.

The Crown appealed.

The Court of Appeal allowed the appeal, finding the trial judge erred by failing to deduct 7.5 months for inherent time requirements and by isolating the delay in the Superior Court.

After deducting the intake period, the 17.5-month delay fell within the Morin guidelines.

The stay was set aside and a new trial ordered.

The Crown appealed a summary conviction appeal decision that had overturned the respondent's conviction.

The summary conviction appeal judge had excluded observations made by the police officer as the respondent exited his vehicle, treating them as compelled direct participation in roadside sobriety tests.

The Court of Appeal allowed the appeal, holding that observations made as a driver exits a vehicle, even in response to an officer's direction, do not constitute compelled direct participation under the Milne and Orbanski framework.

The appeal was allowed and the conviction restored.

The appellant appealed a summary conviction appeal court decision upholding his conviction.

The central issue was whether the trial judge's finding that the complainant was in fear was reasonable based on circumstantial evidence.

The Court of Appeal found that the summary conviction appeal court correctly determined the finding was not unreasonable and that the reasons were adequate.

Leave to appeal was granted, but the appeal was dismissed.

The appellant father appealed a trial judgment awarding custody of the parties' child to the respondent mother, along with spousal support, child support based on imputed income, and an equalization payment.

The Court of Appeal upheld the custody and equalization orders, finding no palpable and overriding error.

However, the Court set aside the spousal support award due to a lack of evidence of economic disadvantage, and reduced the child support obligation, finding no evidentiary basis to impute income to the appellant.

The respondent used a portion of the appellants' driveway to park his car, relying on a prescriptive easement.

The application judge granted a declaration of a prescriptive easement, finding that a 40-year right had crystallized before the appellants' predecessor in title gave written permission in 1991.

On appeal, the Court of Appeal held that the application judge erred in calculating the time period under the Real Property Limitations Act, as the 20 or 40-year period must be the period 'next before' the commencement of the action.

The 1991 written permission defeated the statutory claim.

Furthermore, the doctrine of lost modern grant did not apply because the use was always with the oral permission of the predecessors in title.

The appeal was allowed and the application dismissed.

The appellant appealed a jury verdict regarding a motor vehicle accident where the respondent suffered a severe brain injury.

The jury found the appellant's driver 61% liable and the respondent 39% liable, awarding nearly $14 million for future care costs.

The appellant argued the liability apportionment and damages were perverse and resulted from deficient jury instructions.

The Court of Appeal dismissed the appeal on liability and damages, finding the jury's conclusions were not plainly unreasonable and the trial judge's instructions were adequate.

However, the court allowed the appeal on costs in part, reducing the substantial indemnity costs award to prevent it from amounting to full indemnity.

The appellant appealed a summary conviction, arguing that a 15-minute delay before providing a roadside breath sample violated his right to counsel under section 10(b) of the Charter.

The Court of Appeal dismissed the appeal, holding that a 15-minute delay for the purpose of obtaining a proper breath sample is a justified limitation on the right to counsel, rendering the availability of cell phones irrelevant.

The appellant appealed a sentence imposed in 2005.

The Court of Appeal allowed the appeal and reduced the sentence to two years less five days, noting that had the trial judge and counsel been aware of the immigration consequences, the joint submission would have taken them into account.

The Crown appealed the 30-month sentence (reduced to one day after pre-trial custody credit) imposed on the respondent for manslaughter.

The respondent had strangled the victim after discovering her in his home attempting a robbery and being attacked by her.

The Crown argued the sentence was unfit and outside the established range for manslaughter involving strangulation and disposal of a body.

The Court of Appeal dismissed the appeal, finding the sentence was within the acceptable range given the unique circumstances, including the victim's unprovoked attacks, the respondent's lack of prior record, and the harsh conditions of his pre-trial custody.

The respondents brought a motion requesting the Court of Appeal vary its order for a new trial to an order remitting the matter to the trial judge.

The Court declined to grant the relief, finding it would not be appropriate to ask the trial judge to revisit her conclusions on the critical causation issue based on the Court's reasons.

The motion was dismissed without costs.

The young person appealed their robbery conviction, arguing it was unreasonable due to flawed eyewitness identification from a photographic line up and that the trial judge failed to consider exculpatory evidence.

The Court of Appeal dismissed the appeal, noting the complainant recognized the appellant from prior commercial dealings and another witness corroborated the appellant's involvement in planning the robbery.

The court also found the allegedly exculpatory evidence was not exculpatory and the trial judge was not required to mention every piece of evidence in the reasons.

The Crown appealed the sentence imposed on the respondent for knowingly supplying a handgun and ammunition to a member of the Hells' Angels while under a firearms prohibition order.

The Court of Appeal found the original sentence grossly inadequate and an error in principle for not making the sentence for the section 117.01 offence consecutive.

Taking into account the respondent's guilty plea, lack of prior convictions, and the hardship of re-incarceration, the Court varied the sentence to a total of 20 months consecutive to the 18 months of pre-trial custody credit.

The appellant surgeon appealed a trial judgment finding him negligent in his care and treatment of the respondent patient.

The patient suffered severe complications, including nerve and artery damage, during surgery for Thoracic Outlet Syndrome.

The trial judge found that the surgeon failed to adequately disclose the risks of the surgery and that a reasonable person in the patient's position would not have consented had proper disclosure been made.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding informed consent.

The appellant insurer appealed a trial judgment allowing the Motor Vehicle Accident Claims Fund's action for restitution of statutory accident benefits paid to an injured passenger.

The appellant argued the Fund was required to proceed by arbitration under the Dispute Regulation rather than by a civil action.

The Court of Appeal dismissed the appeal, holding that while the Fund is an 'insurer' under the regulation, this was a 'proper case' for a restitution action because the parties had engaged in informal discussions past the 90-day arbitration notice period, making arbitration impossible.

The Court also held that the notice provisions of the regulation do not apply to civil restitution claims and that judge-made law regarding the Fund's status as an insurer applies retrospectively.

The appellant appealed the sentence imposed by the trial judge.

The Court of Appeal found the sentence to be grossly excessive, noting it was double what the Crown had sought at trial and out of proportion to the offence.

The appeal was allowed and the sentence was reduced to time served.

The appellant appealed a sentence imposed for a massive fraud.

The Court of Appeal noted that the sentence was in accordance with a joint submission and fell within the appropriate range given the scale of the offence.

Leave to appeal was granted, but the appeal was dismissed.

The appellant appealed his committal for extradition to the United States on charges of conspiracy to traffic marijuana and sought judicial review of the Minister of Justice's surrender order.

He sought to introduce fresh evidence of inconsistent witness statements, argued the Minister failed to consider prosecuting him in Canada under the Extradition Treaty, and challenged the Minister's refusal to seek return assurances or delay surrender pending Ontario civil forfeiture proceedings.

The Court of Appeal dismissed the appeal and judicial review, finding the fresh evidence would not have altered the committal and the Minister's discretionary decisions were reasonable.

The appellant appealed his convictions and sentence for sexual assault and sexual interference involving a boy left in his care.

The Court of Appeal dismissed the conviction appeal regarding credibility assessments but applied the Kienapple principle to enter a conditional stay on the sexual assault conviction, as both charges shared the same factual and legal nexus.

The sentence appeal was dismissed, with the court finding that the fresh evidence of the appellant's spouse's health issues did not justify a conditional sentence for such a serious breach of trust.

The wife appealed a trial judge's decision staying her Ontario application for equalization of net family property and spousal support on the basis that Greece was the more appropriate forum.

On appeal, the wife sought to introduce fresh evidence consisting of an application the husband filed in Greece after the Ontario trial, which contradicted his previous evidence regarding the parties' assets.

The Court of Appeal admitted the fresh evidence under the Palmer test, finding it radically changed the parameters of the property issues.

The court allowed the appeal, set aside the stay, and ordered the proceedings to continue in Ontario.

The appellant, an executor of the Lorraine Penna estate, appealed the dismissal of a motion for a declaration that claims against the estate were statute-barred.

The respondents sought to hold the estate liable for the fraudulent actions of a co-trustee in the administration of the Paul Penna estate.

The Court of Appeal held that the two-year limitation period in s. 38(3) of the Trustee Act applied and was preserved by s. 19 of the Limitations Act, 2002.

The court found that the fraud exception in s. 43(2) of the former Limitations Act did not apply because the deceased trustee was not a party or privy to the fraud.

The court also declined to apply the special circumstances doctrine to add the estate as a defendant.

The appeal was allowed in part, declaring the summary judgment motion barred by the limitation period.