Marc Rosenberg

The appellant appealed from a Superior Court judgment in a dispute involving family medicine program respondents and universities.

The Court of Appeal held that, assuming amendments to the Regulated Health Profession Act applied, they applied to the College and not to any of the respondents.

The court further held that the action was an abuse of process for the reasons given below.

The appeal was dismissed with fixed costs payable to the respondents.

The appeal concerned whether an unjust enrichment claim seeking a remedial constructive trust over real property was governed by the ten-year limitation period in s. 4 of the Real Property Limitations Act or the two-year regime in the Limitations Act, 2002.

The court held that such a claim is an action to recover land because it seeks to obtain an interest in land by judgment, and that an alternative monetary remedy advanced in the same proceeding shelters under the same provision.

Although the motion judge erred in concluding that a legislative gap would otherwise exist, the court held that the Limitations Act, 2002 applies to equitable claims generally.

The appeal from the dismissal of summary judgment was dismissed.

The appellant appealed an order holding her jointly and severally liable for trust funds wrongfully removed from a trust established for grandchildren beneficiaries.

The Court of Appeal upheld findings that the appellant abdicated her role as co-trustee by authorizing her nephew to invest trust funds in his unfettered discretion and then making no inquiries into the investments or administration of the trust.

Relief under s. 35(1) of the Trustee Act was unavailable because the loss arose from the investment of trust property and the appellant had not acted reasonably.

The exculpatory clause in the trust indenture did not protect a trustee who improperly delegated her powers and failed to function as a trustee.

The appeal was dismissed with nominal costs to the respondent.

The appellants challenged an order dismissing their claim for delay, arguing that the respondent's consent to a June 2012 order requiring the action to be set down for trial by a specified date implicitly represented trial readiness and engaged Rule 48 of the Rules of Civil Procedure.

The court rejected that submission, holding that the respondent had merely agreed to a scheduling requirement directed at the appellants' longstanding delay and made no representation about its own readiness for trial or the fairness of a future trial.

The court also held that consent to the scheduling order did not waive the respondent's right to later rely on prejudice arising from delay predating the order.

The appeal was dismissed with fixed appeal costs to the respondent.

The appellant challenged a trial judgment in a contractual compensation dispute involving a consulting services agreement.

The Court of Appeal rejected arguments based on alleged fiduciary breach, amendment of the agreement by later invoices, acquiescence, and breach of good faith, holding that the pleaded fiduciary theory did not establish compensable loss and that no amendment to the compensation terms was proved.

The court further held that acquiescence was unavailable against a legal claim for contractual compensation, and that estoppel had neither been pleaded nor pursued.

The appeal was dismissed with costs.

The appellants appealed a judgment enforcing a mortgage but abandoned any challenge to the mortgage's validity.

The appeal was confined to whether approximately $315,000 had been shown to have been advanced by the respondent and whether those funds were advanced under the mortgage.

The court held there was no requirement in the circumstances to prove the source of the funds and found the evidentiary record, including the appellant's own affidavit and cross-examination, demonstrated acceptance that the funds were advanced under the mortgage.

The appeal was dismissed with fixed costs to the respondent.

The appellant appealed convictions for sexual assault and sexual interference arising from allegations by a child complainant against a family friend.

The court held that, although the trial judge correctly identified the governing W. (D.) burden of proof framework, the credibility analysis was undermined by palpable and overriding errors, including improper reliance on prior consistent disclosure, illogical use of an admitted lie to bolster credibility, and a misapprehension of the evidence about post-disclosure behavioural change.

Because the record still contained evidence on which a reasonable trier of fact could convict, the verdict was not set aside as simply unreasonable.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The appellant challenged convictions for historical sexual offences against his children, arguing inadequate reasons, misapprehension of evidence, unreasonable verdicts, and an unfit sentence.

The Court of Appeal held that the trial judge was alive to inconsistencies in the complainants’ evidence, gave reasoned credibility findings, and properly applied the criminal burden of proof in rejecting the defence evidence.

Deference was owed to the trial judge’s credibility assessments, and none of the alleged conflicts or inconsistencies undermined the verdicts.

Leave to appeal sentence was granted, but the eight-year global sentence was within range and upheld.

The appellants challenged summary judgment enforcing a loan guarantee on the basis that the lender failed to comply with the Regulations under the Canada Small Business Financing Act by not taking first-ranking security and by relying on a guarantee term permitting direct recourse against guarantors.

The court held that, on the facts, the failure to obtain first-ranking security did not invalidate the guarantee or provide the guarantors with a remedy, particularly absent evidence of misleading conduct when the guarantee was executed.

The court further held that the impugned guarantee provision was not inconsistent with the statutory scheme, including the requirement that the lender realize on available security before making a claim to the Minister.

The appeal was dismissed with costs.

The appellant sought damages under a critical illness insurance policy connected to a mortgage loan after asserting that he had suffered a covered heart attack.

The appeal turned on the interpretation of policy wording requiring both ECG changes indicating myocardial infarction and an elevated level of cardiac enzymes or any other marker above acceptable levels.

The court held that the policy required something in addition to ECG changes and that 'above acceptable levels' meant higher, not merely different from normal.

The appellant failed to establish coverage, and the insurer's cross-appeal from the no-costs order was also dismissed.

The accused appealed his convictions for violent offences against a former friend, while the Crown appealed the refusal to designate him a dangerous offender.

The court dismissed the conviction appeal, holding that the trial judge made no reviewable errors in applying the credibility framework, assessing the forensic evidence, or giving reasons.

On the sentence appeal, the court held that the trial judge erred in law by importing intractability into s. 753(1), by treating spontaneity and absence of 'serial' offending as defeating pattern, and by misapprehending the availability of long-term offender style community control for a non-sexual violent offender.

The offender was designated a dangerous offender and the disposition was varied to five years' imprisonment followed by a ten-year supervision order.

The moving party sought review of a single-judge order refusing an extension of time to perfect an appeal from a civil action.

The court held the proposed appeal lacked merit and further found that the moving party had still provided no reasonable explanation for the delay, notwithstanding extensive affidavit material.

The court also rejected requests for a forensic audit of opposing counsel's billing practices and for injunctive relief.

The review application was dismissed with fixed costs to the respondents.

The appellants challenged a jury verdict arising from a construction site injury at a partly-built house, arguing errors in the causation charge, occupiers' liability analysis, trial management, jury instructions, and refusal to permit further objections.

The Court of Appeal held that the trial judge's causation charge properly reflected the but-for framework and the apportionment scheme under the Negligence Act, and in any event no substantial wrong or miscarriage of justice occurred.

The court also held that the jury's finding that the site was secure did not preclude liability because the workers had been told defects needed to be fixed and could only do so by entering the site.

Complaints about judicial interventions, the summary of evidence, and the proposed fresh evidence were rejected.

The appeal was dismissed with costs.

The appellant insurer appealed a jury-based judgment awarding life insurance proceeds to the respondent beneficiary.

The sole issue was whether the trial judge erred in instructing the jury on the meaning of a change in insurability under s. 180(1)(c) of the Insurance Act.

The court held that, given the insurer's own delivery form and underwriting evidence, insurability was properly linked to the insured's state of health in the circumstances of this case.

The appeal was dismissed and appeal costs were fixed at $10,500 inclusive.

The appellant appealed convictions for sexual offences against a child, arguing that the trial judge improperly assessed credibility, gave insufficient weight to inconsistencies, overemphasized demeanour, misapprehended the appellant's evidence, and allowed interpreter errors to undermine trial fairness.

The court held that appellate intervention in credibility findings is rare and found no palpable and overriding error in the trial judge's treatment of the complainant's evidence or the appellant's testimony.

The court also held that interpreter mistakes were minor, were addressed as they arose, and did not establish trial unfairness.

The appeal was dismissed.

The appellant appealed his convictions for trafficking in cocaine, possession of proceeds of crime, and offering to transfer a firearm, which arose from an undercover police operation.

He argued that the trial judge erred in refusing to stay the charges for unreasonable delay under s. 11(b) of the Charter, failing to exclude evidence due to s. 8 and s. 10(b) Charter breaches, misapprehending identification evidence, and rejecting his entrapment application.

The Court of Appeal reviewed the periods of delay and found that while the delay was significant, it did not violate s. 11(b) when balanced against societal interests and the lack of actual prejudice.

The Court also upheld the trial judge's findings that the search was consensual or minimally intrusive, the identification evidence was reliable, and the undercover officer's actions constituted legitimate investigation rather than entrapment.

The appeal was dismissed.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred by allowing part of the proceedings to be translated simultaneously rather than consecutively.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded the interpreter was competent to perform both simultaneous and consecutive interpretation, and that simultaneous interpretation met the constitutional requirement of contemporaneity.

The applicant, convicted of sexual assault causing bodily harm and kidnapping, applied for an extension of time to appeal and for the appointment of counsel under s. 684 of the Criminal Code.

The Crown consented to the time extension but opposed the appointment of counsel.

The Court of Appeal granted the application, finding that the applicant lacked the means to retain counsel and could not effectively present his complex appeal, which included arguable grounds regarding after-the-fact conduct, Vetrovec warnings, and prior inconsistent statements.

The court referred the matter to Legal Aid Ontario, ordering that if legal aid is refused, counsel be appointed with fees paid by the Attorney General.

The appellant appealed a disposition of the Ontario Review Board, seeking an absolute discharge or, alternatively, permission to live in the community.

The Court of Appeal dismissed the appeal, finding that the appellant remained a significant threat to public safety.

The court rejected the argument that there was a treatment impasse, noting that the diagnosis had been clarified and the treatment team was trying different approaches.

The appellants sued the respondent for breach of contract, defamation, negligence, and injurious falsehood, alleging that their business proposal on a reality television show was edited to misrepresent its merits.

The motion judge granted summary judgment dismissing the action on the basis that the appellant had signed a comprehensive release.

The Court of Appeal dismissed the appeal, finding that the release gave the respondent sole discretion to edit the recording and barred the claims, and that there was no independent duty of good faith that could alter the express terms of the contract.