Marc Rosenberg

The appellant was convicted of second degree murder and sentenced to life imprisonment without parole for 20 years.

At trial, the defence argued that the main Crown witness was the actual shooter and attacked the integrity of the police investigation.

The trial judge permitted the lead detective to provide an investigative narrative to confirm the Crown witness's evidence.

On appeal, the appellant challenged the admission of this investigative narrative, the explanation for why a witness was not called, and the admission of prior consistent statements.

The Court of Appeal dismissed the appeal, finding that the defence's attack on the investigation justified the Crown's response and that the trial judge properly instructed the jury on the limited use of the evidence.

The 20-year parole ineligibility period was also upheld given the appellant's violent criminal record.

The appellant appealed convictions for sexual assault.

The determinative issue was whether the trial judge erred in failing to provide an adequate answer to the jury's questions concerning the timeline of various events.

The Court of Appeal concluded that the trial judge did not properly answer the questions and it was not satisfied the result would have been the same had they been properly answered.

The appeal was allowed and a new trial ordered.

The appellant insurer sought to preserve the evidence of three experts regarding the cause of an infant's injuries before an action was commenced.

A previous application was dismissed because Rule 36.01 did not allow for preservation of evidence prior to the commencement of a proceeding.

Following an amendment to Rule 36.01 that expanded the definition of a party, the insurer brought a new motion.

The motion judge dismissed it on the basis of res judicata.

The Court of Appeal allowed the appeal, holding that the change in the law constituted special circumstances justifying an exception to res judicata.

The court ordered the examination of two experts who had examined the vehicle, but not the expert who only reviewed medical records.

The appellants appealed an order refusing to set aside a consent order.

The Court of Appeal allowed the appeal, finding the motion judge erred in principle by holding her discretion was circumscribed by the factors in Chitel v. Rothbart.

The Court held the discretion is broader and should be exercised to achieve the justice of the case, noting reasonable grounds to question the default judgment and that funds were available before the return date of the motion.

The plaintiff, who suffered severe brain damage at birth rendering him mentally incompetent, commenced a medical malpractice action in 2002 against his mother's obstetrician and the hospital.

In 2006, a second action was commenced against the doctors who treated him post-birth.

The motion judge struck the second action as statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that under the transition provisions in s. 24, the former limitation period applied because the claim was discovered by the litigation guardian before January 1, 2004.

Under the former Limitations Act, the limitation period was suspended due to the plaintiff's mental incompetence, meaning the second action was commenced in time.

The respondent pleaded guilty to a third drinking and driving offence, which was treated as a second offence for sentencing purposes.

Due to an administrative error, the Ministry of Transportation also treated it as a second offence, suspending his licence for three years instead of indefinitely.

After the respondent completed the requirements, the Registrar reinstated his licence.

Two years later, the Ministry discovered the error and suspended the licence indefinitely.

The Divisional Court granted mandamus to reinstate the licence.

The Court of Appeal dismissed the Ministry's appeal, holding that the Ministry could not disavow the Registrar's earlier exercise of statutory authority to reinstate the licence after the respondent had relied on it.

The appellant appealed an order made by the Superior Court of Justice relating to discipline proceedings.

The respondents conceded that they never sought an order relating to proceedings other than the discipline proceedings and related matters.

The Court of Appeal allowed the appeal in part, varying the order to include a notice requirement for proposed witnesses and striking out one paragraph, but otherwise upholding the order.

Costs of $4,000 were awarded to the appellant, to be set off against outstanding costs orders.

The appellants brought a derivative claim under the Family Law Act.

The principal claim was statute-barred, but no claim had been brought by the Estate.

The Court of Appeal dismissed the appeal, affirming that if the principal claim is statute-barred, the derivative claim is also barred, regardless of whether the Estate brought a claim.

The appellant, a lawyer, sued the police and Crown attorneys for malicious prosecution, Charter breaches, and other torts following his acquittal on sexual assault charges.

The motion judge struck most of his fresh amended statement of claim under Rules 21 and 25.

The Court of Appeal allowed the appeal, finding that the motion judge erred by effectively conducting a summary judgment motion rather than accepting the pleaded facts as true, and by applying too narrow a test for malice at the pleadings stage.

The action was permitted to proceed against all defendants except the Police Services Board (save for vicarious liability).

The defendants appealed a jury verdict awarding the plaintiffs $1.475 million in damages for a defamatory newspaper article about the plaintiff's proposed golf course expansion.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred in his treatment of the emerging defence of public interest responsible journalism by conflating it with qualified privilege and failing to have the jury determine the article's meaning first.

The trial judge also made reversible errors in his jury charge regarding the defence of fair comment, malice, and the presumption of falsity.

The appellant, an Aboriginal woman with a history of trauma including residential school attendance, pleaded guilty to aggravated assault after causing permanent brain damage to her two-year-old child.

She was sentenced to two years less a day in custody.

On appeal, she argued the sentencing judge failed to adequately consider her circumstances as an Aboriginal offender under the Gladue framework and erred in assessing aggravating factors.

The Court of Appeal dismissed the appeal, finding that the sentencing judge properly applied the Gladue methodology and that a custodial sentence was appropriate given the gravity of the offence and the need for denunciation and deterrence.

The appellant appealed a family law judgment regarding equalization, allocation of debts, and spousal support.

The Court of Appeal found that the trial judge failed to conduct a proper equalization calculation despite scanty evidence, which also flawed the spousal support order premised on the debt allocation.

The appeal was allowed, the relevant paragraphs of the judgment were set aside, and a new trial was ordered on those issues.

The appellant appealed a decision refusing relief from forfeiture of an option agreement after it was terminated by the respondent due to persistent late payment of rent.

The Court of Appeal held that the application judge was entitled to find the late payments constituted a material breach of the tenancy agreement.

Furthermore, the application judge made no error in principle in applying the test for relief from forfeiture under section 98 of the Courts of Justice Act.

The appeal was dismissed with costs.

The appellant insurer appealed a decision finding it had a duty to defend the respondent.

The Court of Appeal dismissed the appeal, holding that the statement of claim did not allege an intent to injure, meaning the intentional act exclusion clause did not apply.

Furthermore, the respondent met the definition of an employee under the policy as he was engaged in cleaning the premises on behalf of the insured at the time of the incident.

The appellant appealed a trial judgment granting an adverse possession claim.

The respondents conceded that the trial judge erred in treating the matter as a case of mistake, which led to the application of the wrong test.

Specifically, the trial judge failed to consider whether there was an intention to exclude the owners from the uses they wanted to make of their property.

The Court of Appeal allowed the appeal, set aside the judgment, and dismissed the action, awarding costs to the appellant.

The appellant appealed the dismissal of his application for a declaration of paternity and access to a child.

The trial judge had dismissed both the appellant's application and a cross-application by another man, finding the evidence of all parties highly unreliable and noting the mother's refusal to permit DNA testing.

The Court of Appeal dismissed the appeal, holding that the trial judge's adverse inferences regarding the DNA refusal were reasonable, the reasons for rejecting the appellant's credibility were clear from the record, and any error regarding privileged CAS records would not have affected the outcome.

The appellant contractor and respondent First Nation were parties to a construction contract containing an arbitration clause.

After a dispute arose and the contract was terminated, the appellant commenced an action against the respondents and several other parties, claiming relief beyond what was arbitrable under the contract.

The appellant then moved for a mandatory order requiring the respondents to proceed to arbitration.

The motions judge dismissed the motion, finding that arbitrating only part of the dispute would risk multiplicity of proceedings and inconsistent results.

The Court of Appeal dismissed the appeal, holding that the motions judge made no error in principle in exercising her discretion under the Courts of Justice Act to refuse the mandatory order.

The plaintiffs commenced a medical malpractice action following the death of Emilio Spirito, naming several hospitals, doctors, and 'Doctors AB, CD, EF, GH'.

After the two-year limitation period under the Trustee Act expired, the plaintiffs sought to amend the claim to substitute the appellants for Doctors AB and CD.

The motion judge allowed the amendment, finding it was a case of misnomer.

The Court of Appeal dismissed the appellants' appeal, holding that correcting a misnomer does not constitute adding a party, and therefore s. 21 of the Limitations Act, 2002 does not bar the amendment.

The respondents sued the appellant hospital and several doctors for medical malpractice following the birth of their daughter, who suffered severe brain damage due to asphyxia during labour.

The trial judge dismissed the claims against the doctors but found the hospital vicariously liable for its nurses' failure to properly monitor the fetal heart rate between 6:30 and 7:00 p.m.

The trial judge inferred that proper monitoring would have detected the asphyxia, leading to an expedited delivery that would have spared the child's injuries.

The Court of Appeal allowed the hospital's appeal and ordered a new trial, finding that the trial judge misapplied the law of causation by using a 'robust and pragmatic approach' to infer causation without reviewing and making necessary findings on conflicting expert evidence regarding whether the earlier period of asphyxia was actually detectable by intermittent auscultation.

The plaintiff was seriously injured in a motor vehicle accident.

The driver of the vehicle he was in was convicted of dangerous driving causing bodily harm.

In the subsequent civil action, the trial judge ruled that the criminal conviction and its essential facts were conclusive of the driver's negligence, relying on the abuse of process doctrine to prevent relitigation.

The jury found the convicted driver 100% negligent.

The appellant insurer appealed, arguing the abuse of process doctrine was misapplied and prevented them from showing the other driver was also negligent.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the doctrine to prevent relitigation of the criminal conviction's essential facts, which did not preclude the appellant from attempting to prove the other driver's negligence.