Marc Rosenberg

The appellant was convicted of attempted murder and robbery.

On appeal, he argued for the first time that his s. 10(b) Charter rights were violated when police elicited an unrecorded statement from him after he requested counsel but before he was given an opportunity to consult one.

The Court of Appeal allowed the issue to be raised, finding a sufficient evidentiary record and no prejudice to the Crown.

The Court held that subsequent recorded statements, taken after the appellant consulted counsel, were tainted by the initial breach due to their close temporal and contextual connection.

The statements were excluded under s. 24(2) as conscriptive evidence, and a new trial was ordered.

The appellant brought a proposed class proceeding alleging the respondent bank received interest on cash advances in violation of the criminal interest rate provisions of the Criminal Code.

The motion judge refused to certify the action, finding that restitution and breach of contract claims lacked common issues and that a class proceeding was not the preferable procedure.

The Divisional Court affirmed.

The Court of Appeal allowed the appeal and certified the class proceeding, holding that sections 23 and 24 of the Class Proceedings Act could be used to assess and distribute aggregate damages, thereby resolving the common issues problem.

The Court also found that a class proceeding was the preferable procedure to achieve judicial economy, access to justice, and behaviour modification.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the appellant failed to demonstrate the respondent would suffer no prejudice if the default judgment were set aside.

Costs of $3,500 were awarded to the respondent.

The appellants, who were discharged bankrupts, sought to appeal a declaration validating mortgages on their properties.

The respondent mortgagee brought a motion to quash the appeal on the basis that the appellants lacked standing.

The Court of Appeal allowed the motion to quash, finding that the properties remained vested in the trustee in bankruptcy.

Although the trustee took no position on the appeal and consented to the appellants proceeding, it had not abandoned its interest in the properties under section 40(1) of the Bankruptcy and Insolvency Act.

The appellants appealed an order striking their statement of claim and dismissing their action, which was obtained via an ex parte motion by the respondent Centrecorp.

The Court of Appeal found it inappropriate for Centrecorp to proceed ex parte when the appellants had requested a 7-day extension to answer undertakings and asked to be advised if the extension was refused.

The appeal was allowed and the order set aside, conditional upon the appellants paying outstanding costs orders by a specified date.

The appellants appealed a trial judgment dismissing their claims for wrongful dismissal and shareholder oppression.

The trial judge found the appellant engaged in insubordination, angry confrontations, and drove a tractor at the manager, constituting just cause for dismissal.

The trial judge also found that while there were deficiencies in the business's conduct, they did not prejudice the appellant, and thus no oppression remedy was warranted.

The Court of Appeal upheld the trial judge's findings and dismissed the appeal.

The appellant appealed a judgment extinguishing its title to a triangular parcel of land based on adverse possession.

The appellant argued the trial judge failed to consider the nature of the use of the surplus land and whether the respondent's actions were sufficiently inconsistent with that use.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent's predecessor in title had paved the parcel, placed curb stones, and used it constantly for parking, effectively excluding the true owner.

The Crown appealed a summary conviction appeal court decision that quashed the youth respondent's convictions for sexual offences against a four-year-old child and ordered a new trial.

The appeal judge had found the trial judge misapprehended evidence of opportunity and applied an adult standard to the youth's testimony.

The Court of Appeal allowed the Crown's appeal and restored the convictions, finding the trial judge did not misapprehend the evidence, did not apply an inappropriate standard to the youth's testimony, and did not impermissibly assume the youth lied simply to avoid jail.

The appellant mother appealed an order terminating her spousal support and a costs order that barred her from bringing further proceedings until previous costs awards were paid.

The Court of Appeal upheld the termination of spousal support, finding the application judge did not place unreasonable emphasis on the goal of economic self-sufficiency.

However, the Court varied the costs order to allow the mother to bring applications for the variation of child support, noting that a child's right to support should not be prejudiced by a parent's litigation misconduct.

The appeal was otherwise dismissed.

The unrepresented appellant appealed an order made after the motion judge refused a short adjournment and immediately gave judgment without allowing submissions on the merits.

The Court of Appeal allowed the appeal, finding the proceedings fatally flawed and the refusal of the adjournment unreasonable, as the appellant had been served with voluminous materials only days prior and was deprived of legal representation.

The order was set aside.

The appellant appealed a disposition of the Ontario Review Board that found he continued to suffer from a serious mental disorder and remained dangerous, ordering his detention in a minimum secure unit.

The appellant argued the Board erred in finding him dangerous and sought an absolute discharge.

The Court of Appeal held that the Board's disposition was reasonable, supported by medical evidence of the appellant's lack of insight, illicit drug use, and risk of decompensation.

The appeal was dismissed.

The appellant appealed his conviction for child pornography.

The Court of Appeal found that the trial judge erred by relying on improper propensity reasoning related to the appellant's sexual orientation to infer knowledge.

The trial judge also erred in drawing inferences of consciousness of guilt from advice given to a witness and the location of a computer, without sufficient evidentiary basis linking them to the child pornography charge.

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

The plaintiffs (CN companies) retained a manufacturer to build a custom tunnel boring machine (TBM) for a railway tunnel project.

The TBM broke down due to excess differential deflection, causing significant project delays.

The plaintiffs sought coverage under a builders risk insurance policy issued by the defendants.

The insurers denied coverage based on exclusions for faulty or improper design and inherent vice.

The trial judge found in favour of the plaintiffs, holding that the excess differential deflection was not foreseeable and thus the faulty design exclusion did not apply.

On appeal, the Court of Appeal allowed the appeal, finding that the trial judge erred in his foreseeability analysis.

The Court held that the risk of differential deflection was known and investigated by the designer, making it a foreseeable risk that the design failed to accommodate.

Consequently, the faulty or improper design exclusion applied, and the action against the insurers was dismissed.

The appellant appealed an order refusing to set aside a default judgment entered against him personally.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's factual findings that the appellant was aware he was being sued personally, failed to move promptly, and did not adequately explain the delay.

The appellant sought an adjournment of his appeal to raise a new ground of ineffective assistance of counsel, conceding that the original grounds lacked merit.

The Court of Appeal refused the adjournment and dismissed the appeal, finding no merit to the proposed ground and noting the case did not fall within the exceptional circumstances required for such a claim in civil proceedings.

The appellant appealed his convictions for assault, unlawful confinement, sexual assault, criminal harassment, threatening, and assaulting a police officer, arising from incidents involving his ex-girlfriend.

He argued the trial judge erred in instructing the jury on credibility and reasonable doubt, failed to give a limiting instruction on disposition evidence, and that the guilty verdicts were inconsistent with his acquittal for administering a noxious substance.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate, the disposition evidence was admissible without objection, and the verdicts were not inconsistent.

The appellants appealed a summary judgment dismissing their negligence claims against the respondent employer.

The claims arose from the employment of one of the appellants and alleged failure to provide a safe working environment.

The Court of Appeal upheld the dismissal, finding that the tort claims as framed were barred by the Workers Compensation Act, though noting that any wrongful dismissal claim could proceed.

The appellant appealed his conviction and sentence, arguing that the trial judge erred in rejecting his evidence regarding alleged assaults by a police officer and alleged inducements to provide a statement.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge did not reverse the burden of proof and reasonably concluded that the appellant's version of events was improbable based on the videotape statement and testimony.

The court also upheld the trial judge's finding that no inducements were made.

The sentence appeal was dismissed as abandoned.

The appellant appealed his conviction on the basis that the trial judge erred in instructing the jury.

The principal defence was that the appellant accidentally hit the victim, relying on his almost complete blindness.

The Court of Appeal found that the trial judge erred by instructing the jury that blindness was only relevant to the foreseeability of bodily harm and not to the issue of accident.

The appeal was allowed and a new trial ordered.

The appellant appealed his sentence, arguing the trial judge erred in imposing certain probation terms and failing to give credit for pretrial house arrest.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the probation terms and noting the trial judge was not satisfied the pretrial house arrest had any impact on the appellant.