Marc Rosenberg

The appellant was convicted of trafficking cocaine and possession of proceeds of crime.

On appeal, he argued that the trial judge erred by refusing to review the Crown's peremptory challenge of the only proposed black juror, and by failing to adequately emphasize in the jury charge that no drugs or buy money were found on him at arrest.

The Court of Appeal dismissed the appeal, finding no pattern of arbitrary challenges by the Crown and concluding that the trial judge properly reviewed the defence theory regarding the absence of drugs and money.

The appellant appealed his convictions for the first-degree murder of his two-year-old son and the aggravated assault of his common-law spouse.

He argued that he received ineffective assistance of counsel because his trial lawyer failed to cross-examine Crown witnesses to show he did not commit the offences.

The Court of Appeal found the evidence of guilt overwhelming and trial counsel's tactical decisions reasonable.

The court also dismissed grounds of appeal relating to the trial judge's jury instructions on after-the-fact conduct and the burden of proof.

The appeal from conviction was dismissed, and the sentence appeal was quashed.

The plaintiff was involved in two motor vehicle accidents 11 months apart.

He settled his claim against the first tortfeasor and provided a standard release.

The identity of the second tortfeasor was unknown, so the plaintiff sued his own insurer under the unidentified motorist coverage for damages arising exclusively from the second collision.

The insurer brought a third party claim against the first tortfeasor for contribution and indemnity.

The Court of Appeal upheld the motion judge's decision to strike the third party claim, finding that the insurer would only be held liable for the degree of damages attributable to the second accident and therefore had no right to seek contribution or indemnity from the first tortfeasor.

The plaintiff was injured in a motor vehicle accident while a passenger in an uninsured vehicle.

She sought uninsured motorist coverage under the policy of the other driver, who was insured by the respondent.

The motion judge dismissed the action against the respondent, finding the plaintiff was not a 'person insured under the contract' under s. 265 of the Insurance Act.

The Court of Appeal allowed the appeal, applying its previous decision in Taggart.

The Court held that the broader definition of 'insured' in s. 224 informs s. 265, meaning that because the plaintiff was entitled to statutory accident benefits under the respondent's policy, she was also entitled to uninsured motorist coverage.

The Court declined to overrule Taggart, finding it was not decided per incuriam.

The appellant appealed her conviction for possession for the purpose of trafficking, arguing the trial judge misapprehended the evidence and the expert's opinion.

The Court of Appeal dismissed the appeal, finding the trial judge properly rejected the appellant's improbable and inconsistent testimony and correctly assessed the factors proving the purpose of trafficking.

The appellant appealed a sentence for breach of probation.

The trial judge had effectively imposed a 34-month sentence, considering pre-sentence custody.

The Court of Appeal found the sentence manifestly excessive, noting the appellant had no prior record for breach of probation, had never been imprisoned, and had successfully served a conditional sentence.

The appeal was allowed, and the sentence was reduced to time served, with the probation order remaining in place.

The appellant, an off-duty police officer, was convicted of impaired driving causing death and bodily harm following a motor vehicle collision.

He appealed his convictions, arguing the trial judge erred by refusing to give a special jury instruction on the frailties of eyewitness confidence, and that his Charter rights were violated during the seizure of blood and breath samples.

The Court of Appeal dismissed the conviction appeal, finding the jury instruction was unnecessary and the evidence was lawfully obtained.

The appellant's sentence appeal seeking a conditional sentence or reduced term from his 21-month imprisonment was also dismissed.

The City of Toronto appealed a declaration that its 2004 Amending By-Law, which prohibited commercial parking lots from issuing private parking tickets for unauthorized parking, did not apply to Imperial Parking Canada Corporation (Impark).

Impark argued that its signage created a contract whereby it consented to parking even if proper advance payment was not made, subject to a higher daily rate.

The Court of Appeal upheld the application judge's finding that Impark's signs explicitly offered consensual parking, meaning the by-law, which only applied to vehicles parked without consent, did not apply to Impark's fee collection activities.

The appeal was dismissed.

The City of Toronto appealed a decision quashing a by-law that prohibited commercial parking lots and private parking enforcement agencies from issuing private parking tickets.

The application judge had found the by-law ultra vires, reasoning that trespassers are not 'consumers' under the consumer protection licensing power in s. 150(2) of the Municipal Act, 2001.

The Court of Appeal allowed the appeal, holding that the application judge applied an overly restrictive interpretation of 'consumer protection'.

Applying a broad and purposive approach, the Court found that 'consumer' includes any person with whom a licensed business transacts, engages, or deals directly, including alleged trespassers from whom the business seeks to extract payment.

The appellant applied for an adjournment of her conviction and sentence appeal to obtain transcripts and adduce fresh evidence.

The Court of Appeal dismissed the adjournment request, noting the appellant had failed to take steps to obtain transcripts and the proposed fresh evidence was irrelevant.

The appellant then declined to participate in the appeal.

The Court reviewed the materials, found no basis to interfere with the convictions or sentence, and dismissed the appeal.

The respondent, a licensed driver and trainer, was disciplined by track judges for providing an improper urine sample.

He appealed to the Ontario Racing Commission, which held a hearing de novo.

At the hearing, the Commission allowed the senior track judge from the initial panel to testify.

The Divisional Court quashed the Commission's decision, finding this created a reasonable apprehension of bias.

The Court of Appeal allowed the appeal, holding that the track judge had relevant factual evidence to give and his testimony did not create a reasonable apprehension of bias, as the Commission Panel's ruling did not show preconceived views or give undue weight to his evidence.

On a ministerial review reference treated as a conviction appeal, the court admitted fresh forensic pathology and archival evidence undermining the reliability of the original time-of-death evidence that had been central to the Crown’s theory of exclusive opportunity.

Applying the fresh evidence framework, the court held that the conviction, as affirmed on the earlier reference, could no longer stand and amounted to a miscarriage of justice.

At the remedial stage, the court undertook an extensive review of the historical record, expert evidence, archival material, and the practical impossibility of a retrial.

Although an acquittal was not the only conceivable verdict, the court concluded that an acquittal was clearly the more likely result at a hypothetical new trial and entered that remedy.

The Lieutenant Governor in Council, Minister of Health, and Attorney General of Ontario appealed a Divisional Court order quashing a regulation that removed Apo-Flavoxate as an interchangeable drug product under the Drug Interchangeability and Dispensing Fee Act (DIDFA).

The Court of Appeal allowed the appeal, finding that the de-listing was accomplished by a regulation enacted by the LGIC pursuant to s. 14(1.1) of the DIDFA, which grants broad power to remove designations in the public interest.

The Court held that the rules of procedural fairness do not apply to public bodies exercising legislative functions, and the regulation was not outside the statutory purpose.

The appellant appealed an order dismissing his motion to expunge child support arrears that accrued while he was unemployed.

The motion judge had found the appellant intentionally unemployed and imputed income to him based solely on affidavit evidence without cross-examination.

The Court of Appeal allowed the appeal, holding that the motion judge erred in rejecting the appellant's uncontradicted affidavit evidence regarding his diligent job search without a trial or cross-examination.

The matter was remitted for a rehearing.

The self-represented appellant appealed an order dismissing her 14B motion and prohibiting her from bringing further proceedings without leave of a judge.

The motion judge had dismissed the motion because there was no underlying proceeding before the court.

The Court of Appeal dismissed the appeal, finding the appellant's materials incomprehensible and agreeing that a motion cannot be brought in a litigation void.

The appellant sought to examine a non-party expert witness residing in British Columbia prior to an application hearing, but the motion judge dismissed the request for an interprovincial summons.

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

The Court of Appeal dismissed the motion to quash, holding that an order finally disposing of an issue between a party and a non-party is a final order.

However, the Court dismissed the appeal on the merits, finding no palpable and overriding error in the motion judge's conclusion that the expert's evidence was not necessary for the due adjudication of the proceeding under the Interprovincial Summonses Act.

The appellant employer appealed a trial judgment finding that its former successful salesperson was not a fiduciary and did not misuse confidential information when he left to start a competing business.

The Court of Appeal upheld the trial judge's findings, noting the employee had no management authority, hiring power, or corporate decision-making ability, and thus was not a fiduciary despite his high sales volume.

The Court also agreed that the customer information used was not confidential and the industry relied more on price and service than personal influence.

The appellant solicitors appealed a motion judge's order regarding the assessment of their accounts.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that there was a single retainer covering multiple matters, making the earlier bills interim rather than final.

Because the order for assessment was obtained within thirty days of the final bill, it properly applied to all accounts.

Leave to appeal the costs order was also refused.

The appellant tenant appealed a judgment dismissing its application under s. 23(2) of the Commercial Tenancies Act for an order finding that the respondent landlord unreasonably withheld consent to a lease assignment.

The Court of Appeal found that while the application judge set out the correct test, he erred by failing to consider whether the landlord's refusal was unreasonable in fact because it was designed to achieve a collateral purpose or benefit.

The appeal was allowed, the judgment set aside, and the matter remitted for a new hearing.

The mortgagee appealed the trial judge's decision to reduce the interest rate on the mortgage and deny costs.

The Court of Appeal allowed the cross-appeal, holding that the mortgagee was entitled in law to the interest rate called for in the mortgage, and that delay in bringing the action within the limitation period did not justify a reduction.

The court also awarded costs of the trial and the appeal to the mortgagee, noting that success was no longer divided and the judgment exceeded the offer to settle.