Marc Rosenberg

The appellant, a former foreign exchange trader, appealed a trial judgment finding him liable for fraud and breach of contract, and dismissing his counterclaim for wrongful dismissal.

The appellant had executed multiple unauthorized foreign exchange trades resulting in approximately $5.4 million in losses, which he concealed using fictitious credits.

On appeal, he argued the trial judge's reasons were inadequate, applied the wrong standard of proof for fraud, and erred in finding the employer could rely on his misrepresentations.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons sufficient, the correct standard of proof applied, and that the employer's alleged carelessness was not a defence to fraud.

The appellants appealed a trial judgment declaring that the respondents were entitled to a prescriptive easement for a right-of-way over a driveway on the appellants' property.

The appellants argued the trial judge erred in finding the use was 'as of right' rather than by permission.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to find on the record that the arrangement between the original owners did not amount to permission, and deference was owed to that factual finding.

The appellant was acquitted of Occupational Health and Safety Act charges at trial.

The Crown successfully appealed to the Provincial Offences Appeal Court, where the appeal judge permitted the Crown to rely on a new theory of liability regarding supervisor status and raised additional dispositive issues on her own motion without allowing submissions.

The Court of Appeal allowed the appellant's appeal, holding that it is improper for the Crown to advance a new theory of liability on an appeal against acquittal, and that the appellant was denied a fair hearing when the appeal judge decided the case on unargued grounds.

A new hearing was ordered.

The Crown appealed the accused's acquittal on charges of robbery, assault with a weapon, and uttering death threats.

The Crown argued the trial judge erred by excluding certain medical evidence due to alleged non-disclosure, refusing to allow the Crown to admit the accused's statement to police, and failing to correct improper comments made by defence counsel during the jury address.

The Court of Appeal found that while the trial judge erred in excluding the medical evidence and defence counsel made improper comments regarding wrongful convictions and the Crown's integrity, these errors did not render the trial unfair or necessarily affect the verdict.

The appeal was dismissed.

The appellant appealed a trial judgment that annulled the parties' marriage based on the law of Iran.

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

The trial judge's credibility findings, which favoured the respondent over the appellant, were upheld.

The appeal was dismissed with costs fixed at $5,000.

The appellants appealed an order dismissing their third party claim against the plaintiff's counsel.

The Court of Appeal dismissed the appeal, finding that on the pleadings, any negligence alleged against the proposed third party was attributable to the plaintiff.

The plaintiff had not distanced itself from responsibility for its counsel's negligence, making the third party claim inappropriate.

The appellant appealed a trial judge's order permitting the respondent to relocate with the children to Hamilton.

The appellant argued the trial judge erred in finding the move was a material change in circumstances, that it was not reasonably foreseeable, and that it was in the best interests of the children.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the law, made no palpable and overriding errors, and properly considered all factors regarding the children's best interests.

The appellant sued a trustee in bankruptcy and others.

A Registrar dismissed his motion for leave to continue the action under s. 215 of the Bankruptcy and Insolvency Act, and the appellant did not appeal.

Instead, he issued a new Fresh as Amended Statement of Claim based on the same facts.

The motion judge struck the new claim on the grounds of res judicata and abuse of process.

The Court of Appeal dismissed the appeal, holding that the new claim was an attempt to relitigate a determined matter and that the proper avenue was to appeal the Registrar's order.

The appellant pleaded guilty in 1989 to break and enter and assault, serving eight months in jail.

Almost twenty years later, fresh evidence revealed that another individual committed the offences.

The appellant appealed his conviction with the consent of the Crown.

The Court of Appeal admitted the fresh evidence, set aside the guilty pleas, and entered acquittals, noting the dangers of mistaken eyewitness identification and the court's discretion to set aside a guilty plea in the interests of justice to prevent a miscarriage of justice.

The Crown appealed the accused's acquittal on drug charges.

The trial judge had excluded evidence of cocaine found in a knapsack the accused threw away while fleeing police, finding violations of ss. 8 and 9 of the Charter.

The Court of Appeal allowed the appeal, holding that the accused was not detained when the police chase began, and by the time he was tackled, police had reasonable grounds for investigative detention.

Furthermore, the accused abandoned any reasonable expectation of privacy in the knapsack when he threw it away.

A new trial was ordered.

The appellant was convicted of first-degree murder following a trial where the cause of death and similar fact evidence were central issues.

The Crown alleged the appellant killed his partner during a contraband liquor deal, while the defence argued the death was accidental due to commotio cordis.

The Court of Appeal found the trial judge misdirected the jury by misstating expert evidence regarding carbon monoxide and confusing medical diagnosis with legal causation.

The trial judge also erred in admitting the entirety of a fictitious 'Mr. Big' murder plot as similar fact evidence, as it lacked sufficient distinctiveness and was highly prejudicial.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for sexually assaulting his young son, arguing his guilty pleas should be set aside because a major depressive disorder undermined their voluntariness.

The Court of Appeal held that the 'limited cognitive capacity' standard applies to determine whether a mental disorder affects the voluntariness of a guilty plea.

Applying this standard, the court preferred the Crown's expert evidence and found the appellant understood the process and made a conscious, volitional decision.

The appeal was dismissed.

The appellant was convicted of second-degree murder for shooting his wife and sentenced to life imprisonment with 13 years of parole ineligibility.

He appealed the conviction, arguing the trial judge erred in admitting the deceased's ante-mortem statements and evidence of his prior discreditable conduct, and in failing to properly instruct the jury on the use of this evidence.

He also appealed the period of parole ineligibility.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's evidentiary rulings or jury instructions, and concluding that the sentence was fit given the history of domestic abuse.

In a medical malpractice action, the parties agreed to a bifurcated trial to determine the threshold factual issue of whether the defendant doctor advised the plaintiff to take a specific medication.

The trial judge decided the issue in favour of the plaintiffs, finding the doctor did not recommend the medication.

The defendants appealed to the Court of Appeal.

The plaintiffs moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal dismissed the motion to quash, holding that the order was final because it disposed of a defence and deprived the defendants of a substantive right that could be determinative of the entire action.

The appellant appealed his sexual assault conviction, arguing that the trial judge's reasons were inadequate and that the trial judge erred in assessing credibility.

The Court of Appeal found that while the trial judge's reasons were inadequate, the basis for rejecting the appellant's testimony was apparent from the record.

The court also held that the trial judge did not err in his credibility findings.

The appeal was dismissed.

The appellants, a First Nation and its leaders, engaged in a peaceful protest and blockade to prevent a private mining company from conducting exploratory drilling on lands subject to an ongoing aboriginal land claim.

They were found in civil contempt for violating interim and interlocutory injunctions and were sentenced to six months' imprisonment and substantial fines.

On appeal, the Court of Appeal set aside the custodial and monetary sentences, holding that they were excessively harsh and that the sentencing principles from R. v. Gladue apply to aboriginal persons facing civil contempt proceedings.

The appellants, a First Nation and six individuals, appealed their six-month sentences for contempt of a court order.

The respondent did not oppose the appeal, conceding that the appellants had spent enough time in jail and that the underlying dispute required negotiation.

The Court of Appeal accepted the respondent's position and allowed the appeal, ordering the release of the appellants.

The appellant, a police officer, appealed his sentence for participating in an unprovoked assault on a civilian and attempting to fabricate evidence.

He argued the trial judge failed to adequately consider the impact of imprisonment on his career.

The Court of Appeal dismissed the appeal, finding no error in principle and agreeing with the trial judge that the grave nature of the offence and the appalling breach of trust required a sentence of imprisonment to address denunciation and deterrence.

The appellant was unsuccessful at trial, where the trial judge made no order as to costs due to her impecuniosity.

The appellant subsequently pursued an appeal and was again entirely unsuccessful.

The Court of Appeal awarded costs to the respondents, holding that they should not be deprived of their costs a second time despite the appellant's financial circumstances.

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

The appeal court had interfered with the trial judge's finding that a slight deviation from the recommended 7-day replacement schedule for the alcohol test solution did not affect the accuracy of the breath tests.

The Court of Appeal allowed the appeal and restored the conviction, holding that the Criminal Code does not mandate a strict 7-day replacement schedule and the trial judge's finding of fact was amply supported by the evidence.