Marc Rosenberg

The appellant appealed his convictions for assault, assault with a weapon, and uttering a death threat against his wife, primarily arguing ineffective assistance of trial counsel.

The appellant alleged that his trial counsel lacked legal knowledge, failed to adduce helpful evidence, and was suspended from practice by the Law Society during the trial.

The Court of Appeal applied the G.D.B. test and found that while trial counsel's performance was deficient in some respects and his suspension was a matter of serious concern, the appellant failed to demonstrate that the incompetence resulted in a miscarriage of justice or an unreliable verdict.

The appeal was dismissed.

The appellant appealed a summary judgment dismissing his claim for damages against the respondents for breach of contract.

The appellant had an agreement with the deceased respondent granting him an option to purchase a valuable painting upon the deceased's death.

The deceased sold the painting before his death, breaching the contract.

The motion judge dismissed the claim on the basis that the appellant failed to prove he had the financial means to exercise the option.

The Court of Appeal allowed the appeal, finding that the motion judge erred by assuming the role of a trial judge and that there were genuine issues for trial, including the proper option price and whether the appellant needed to show he had the means to purchase the painting.

The Workplace Safety and Insurance Appeals Tribunal decided that employer contributions to an injured worker's health, welfare, and pension benefit plan were not 'earnings' under the Workplace Safety and Insurance Act, 1997.

The Divisional Court quashed this decision, finding it patently unreasonable because the Tribunal failed to consider the legislative history of the definition of earnings.

The Court of Appeal allowed the Tribunal's appeal, holding that the Tribunal was bound to apply the Board's operational policy, which did not include such contributions as earnings.

The Tribunal's decision was rational and entitled to deference, and the failure to consider legislative history did not constitute a reviewable legal error.

The appellant employer appealed a trial judgment awarding the respondent employee damages for wrongful dismissal, including 18 months' pay in lieu of notice, damages for the lost opportunity to sell his book of business, and a three-month extension for Wallace damages.

The Court of Appeal upheld the trial judge's calculation of the notice period and the award for the lost opportunity to sell the book of business.

However, the Court allowed the appeal in part by setting aside the Wallace damages, finding that awarding them alongside damages for the lost opportunity to sell the book of business amounted to double recovery.

The appellant franchisor and respondent franchisee entered into two consecutive franchise agreements.

The franchisee rescinded the second agreement under the Arthur Wishart Act due to the franchisor's failure to provide a disclosure document, and brought an action for rescission and damages.

The franchisor moved to stay the action based on an arbitration clause in the agreements.

The motion judge dismissed the stay motion and granted partial summary judgment for rescission.

On appeal, the Court of Appeal held that the claims fell within the arbitration clause and that the failure to provide a disclosure document did not render the arbitration agreement invalid under the Arbitration Act.

The appeal was allowed, the summary judgment set aside, and the action stayed.

The appellants appealed a summary judgment decision, arguing that the receiver conducted an improvident sale of hydrofoil vessels.

The Court of Appeal dismissed the appeal, finding that the appellants presented no substantial evidence to support their defence and merely criticized the receiver's marketing efforts.

The court held that summary judgment was appropriate as there were no facts in dispute and the issue of an improvident sale was a question of law.

The appellant appealed a judgment dismissing his claim.

The Court of Appeal agreed with the motion judge that the claim did not disclose a reasonable cause of action, failed to plead the essential elements of any cause of action, and constituted an abuse of process as an attempt to relitigate previous court proceedings.

The appeal was dismissed with costs.

The appellant sought to appeal an order of the Superior Court of Justice.

The Court of Appeal quashed the appeal, finding that the order was interlocutory, not final, and therefore the appeal properly lay to the Divisional Court with leave.

The court also noted that the appellant failed to show any error in the motion judge's exercise of discretion.

The appellant appealed his conviction, arguing the summary conviction appeal judge erred by holding a property owner must call police before using force against a trespasser.

The Court of Appeal granted leave to appeal but dismissed the appeal.

The Court noted that while requiring a property owner to call police before using force would be an error inconsistent with s. 41 of the Criminal Code, the appellant used excessive force even on his own version of events, as the trespassing complainant was not creating a disturbance.

The applicant sought to set aside an order of abandonment and reinstate his appeal against committal for extradition.

The applicant had come into possession of new materials that allegedly undermined the sufficiency of the evidence.

The Court of Appeal granted the application, finding it in the interests of justice to reopen the appeal, conditional upon the appeal being perfected by a specified date.

The appellant appealed his sentence of 9 years for attempted murder and 90 days consecutive for breach of probation, following 14 months of pre-trial custody.

The Court of Appeal found the effective sentence of over 11 years excessive, noting the offence was not planned and deliberate, and the appellant was intoxicated.

The Court also considered fresh evidence akin to a Gladue report detailing the appellant's abusive upbringing and progress in rehabilitation.

The sentence for attempted murder was reduced to 6 years, while the consecutive sentence for breach of probation was upheld.

The appellants were successful on their appeal and sought costs.

The Court of Appeal awarded the appellants costs fixed at $50,000 inclusive of disbursements and GST.

The respondent Frontenac Ventures Corporation was ordered to pay $40,000, and the respondent Her Majesty the Queen in Right of Ontario was ordered to pay $10,000, as its position during the original contempt and sentencing hearings was instrumental in leading to the appeal.

Following a successful appeal of sentences imposed for contempt, the appellants sought costs.

The Court of Appeal awarded the appellants their costs of the appeal fixed at $25,000 inclusive of disbursements and GST.

The respondent corporation was ordered to pay $20,000, and the respondent Minister was ordered to pay $5,000, as the Minister's position during the original contempt and sentencing hearings was instrumental in leading to the appeal.

The appellant appealed his conviction for the historic assault and sexual assault of his stepdaughter.

At trial, the judge repeatedly commented on the Crown's failure to call the complainant's older sisters and drew inferences about the family dynamics and the sisters' quick response to the allegations.

The Court of Appeal found that the trial judge impermissibly speculated about possible abuse of the older sisters by the appellant and used this speculation to bolster the complainant's credibility.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed his convictions for robbery and using a firearm during an indictable offence, arising from a home invasion.

The Crown's case relied heavily on an accomplice's testimony, which the trial judge instructed the jury required confirmation.

The trial judge allowed the jury to use a witness's late, in-dock identification of the appellant as confirmatory evidence.

The Court of Appeal held that the trial judge erred in failing to caution the jury about the frailties of in-dock identification and in leaving it as capable of confirming the accomplice's testimony.

The appeal was allowed and a new trial ordered.

The appellants were convicted of armed robbery and possession of a loaded restricted firearm following an incident at a clothing store where a third accomplice, who was armed, died in a confrontation with the storeowner.

On appeal, they challenged the jury instructions regarding the storeowner's evidence, the elements of armed robbery, and party liability.

The Court of Appeal dismissed the appeals against the armed robbery convictions and sentences, finding the jury instructions adequate.

However, the court allowed the appeals regarding the firearm possession convictions, setting them aside and ordering a new trial because the trial judge failed to instruct the jury on the specific elements of that offence.

The Crown appealed a sentence of six months' imprisonment and one year of probation imposed on the respondent for the sexual abuse of his stepdaughter.

The Court of Appeal found the sentence manifestly inadequate given the extreme breach of trust, the victim's developmental vulnerabilities, and the devastating impact on the family.

The appeal was allowed, and the sentence was varied to two years less a day of imprisonment followed by two years of probation.

The appellant appealed a sentence of two years and nine months imprisonment for sexual assault.

The appellant argued the trial judge placed undue emphasis on his position of trust, claiming he was a fraudster rather than a genuine healer, and that the sentence was disproportionate due to immigration consequences.

The Court of Appeal dismissed the appeal, finding the appellant used his purported position as a religious consultant and healer to fraudulently obtain consent for sexual acts, and that the sentence was fit regardless of immigration consequences.

The appellant was convicted of first-degree murder based in part on DNA evidence and a statement he made to police.

On appeal, he argued his s. 10(b) Charter right to counsel was breached when police questioned him before he had a reasonable opportunity to consult his counsel of choice.

The Court of Appeal agreed, finding the police failed to hold off questioning after the appellant indicated he was still trying to reach his lawyer.

The court concluded the statement was conscriptive evidence that should have been excluded under s. 24(2) of the Charter.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for criminal harassment, arguing he lacked the requisite mens rea because he attempted to disguise himself and hide his presence from the complainant.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to infer recklessness from the proven facts, including that the appellant drove slowly past the complainant's gym twice in a distinctive car and ran onto the street as her vehicle was leaving.