Marc Rosenberg

The appellant appealed a disposition order of the Ontario Review Board denying a transfer from a maximum secure facility to a medium secure facility.

The appellant argued the Board erred by refusing to receive an expert report from a forensic psychologist due to late filing, which was caused by legal aid funding delays.

The Court of Appeal allowed the appeal, finding that the Board's refusal prevented it from conducting the mandatory inquiry under s. 672.54 of the Criminal Code, as the report was essential to assessing the appellant's risk and determining the least onerous disposition.

The appellant appealed her sentence of three months' jail and three years' probation for assault, break and enter, and other offences.

The Court of Appeal found that the trial judge misapprehended evidence regarding the appellant's mental health progress and the likelihood of drug use while on a conditional sentence.

Noting the uncontradicted evidence from her psychiatrist that a custodial sentence would be particularly difficult, and her continued progress while on bail, the Court allowed the appeal and reduced the custodial sentence to time served.

The appellant appealed his sentence for attempted murder and aggravated assault.

The trial judge had imposed a ten-year sentence, granting six years of credit for two years and ten months of pre-trial custody.

The Court of Appeal found no error in the trial judge's exercise of discretion or the fitness of the sentence, given the brutal nature of the offences.

Leave to appeal was granted and the appeal was dismissed.

The appellant was injured when crushed between a forklift and a van.

He notified his insurer of a claim for statutory accident benefits nearly two years later, well beyond the 30-day limit under the Statutory Accident Benefits Schedule.

The insurer denied the claim.

The motion judge found the appellant had no reasonable excuse for the delay and declined to grant relief from forfeiture under s. 129 of the Insurance Act, citing prejudice to the insurer.

The Court of Appeal upheld the decision, finding no error in the motion judge's exercise of discretion to deny relief from forfeiture.

The appellant appealed his conviction, arguing that the initial vehicle stop and subsequent search violated his Charter rights.

The Court of Appeal dismissed the appeal, finding that the stop was a lawful exercise of authority under s. 216 of the Highway Traffic Act.

The subsequent arrest was based on reasonable grounds of bail breach, and the search of the vehicle was justified as incident to arrest.

The court also rejected a s. 7 Charter argument regarding the reliability of CPIC information due to a lack of evidentiary foundation and notice.

The appellant appealed his conviction for one count of sexual assault and his sentence of 29 months' imprisonment.

He argued that the jury's guilty verdict on one count and acquittal on another were inconsistent.

The Court of Appeal dismissed the conviction appeal, finding the verdicts reconcilable because the complainant's delayed disclosure regarding the second count could have raised a reasonable doubt.

The sentence appeal was also dismissed as the 29-month term was within the appropriate range.

In a Reference directed by the Minister of Justice concerning the 1959 murder conviction of Steven Truscott, the Crown sought to introduce fresh evidence from a witness, Ms. X. The proposed evidence described a brief, unwanted sexual advance by Truscott in a cornfield approximately a year before the murder.

The Crown argued the evidence was relevant to rebut good character, challenge credibility, support another witness's testimony, and act as similar fact evidence identifying Truscott as the killer.

The Court of Appeal ruled on the admissibility without hearing the testimony viva voce, finding the evidence clearly irrelevant to any material fact in issue.

The Crown's application to tender the evidence was dismissed, and the defence's request for a publication ban on the ruling was denied.

In the context of a Reference regarding his 1959 murder conviction, the applicant sought production of third-party nursing school and psychiatric records of a key Crown witness.

The applicant tendered fresh evidence from two individuals who claimed the witness admitted to lying at trial and sought psychiatric hospitalization to avoid testifying at a 1966 Supreme Court rehearing.

The Court of Appeal applied the O'Connor test and ordered production of the nursing school records, finding they provided independent confirmation of the fresh evidence with minimal prejudice to the witness's privacy.

However, the court refused to order production of the psychiatric records, concluding that the witness's high expectation of privacy outweighed the limited probative value of the one-page discharge form.

The Superintendent of Financial Services appealed an order lifting a CCAA stay and permitting bankruptcy petitions to proceed against the insolvent Ivaco companies.

The Superintendent argued that unpaid pension contributions subject to a deemed trust under the Pension Benefits Act should have been paid or segregated before bankruptcy.

The Court of Appeal dismissed the appeal, holding that the CCAA and BIA create a comprehensive federal insolvency scheme that leaves no gap for provincial deemed trusts to operate outside of bankruptcy.

The court also upheld the motions judge's discretionary decision to lift the stay and his order transferring the companies' head offices to Toronto under the Canada Business Corporations Act.

The Crown appealed the sentence imposed on the respondent for assault causing bodily harm.

The trial judge had imposed a two-year conditional sentence concurrent to a jail sentence.

The Court of Appeal found multiple errors of law, including imposing a conditional sentence concurrent to a jail sentence, exceeding the maximum length for a conditional sentence, and effectively imposing a penitentiary sentence when accounting for pre-trial custody.

The Court also found a conditional sentence manifestly inappropriate given the respondent's record and the unprovoked nature of the attack.

The appeal was allowed, and the sentence was varied to an additional six months' imprisonment.

The appellant appealed his conviction, arguing that the trial judge's reasons were insufficient because they failed to address his testimony concerning fans.

The Court of Appeal dismissed the appeal, finding that the evidence about the fans did not undermine the informant's evidence regarding the detection of marihuana odour.

The appellant appealed against his sentence imposed by the Superior Court of Justice.

The Court of Appeal for Ontario dismissed the appeal against sentence as abandoned.

The appellant appealed his convictions following a jury trial.

The Court of Appeal identified two fundamental errors of law: the trial judge failed to take the verdict from the jury on both counts after the appellant was placed in their charge, and failed to direct the jury on the included offence of simple possession.

Applying the principle from R. v. Haughton, the Court found that the failure to leave the included offence with the jury may have affected the verdict.

As the Crown did not seek a new trial on the full offence and the appellant conceded guilt for simple possession, the Court substituted a conviction for simple possession with a sentence of time served, and quashed the conviction on the second count.

The plaintiff developed an infection and subsequently necrotizing fasciitis following a Caesarian section.

The trial judge found the defendant doctor and home care nurses negligent in their post-natal treatment and concluded this negligence caused the necrotizing fasciitis, applying a robust and pragmatic approach to causation.

On appeal, the Court of Appeal held that the trial judge erred in his application of the robust and pragmatic approach, as there was insufficient evidence to support a finding of causation on a balance of probabilities.

The appeal was allowed and damages were reduced to $1,000 for the pain and suffering flowing from the delayed treatment.

The appellant was convicted of armed robbery after acting as the getaway driver.

At trial, he relied on an alibi that was disclosed to the Crown only days before trial.

The trial judge drew an adverse inference against the alibi due to the late disclosure, which hampered police investigation, and convicted the appellant.

On appeal, the appellant argued the trial judge erred in his treatment of the alibi and in assessing credibility based on a co-accused's lack of motive to falsely implicate him.

He also appealed his six-year sentence, citing disparity with the co-accused's four-year sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's treatment of the alibi or credibility assessment.

The sentence appeal was also dismissed, as the disparity was justified by the co-accused's guilty plea and cooperation with police.

The respondent was convicted of manslaughter after stabbing his landlady 107 times while intoxicated.

The trial judge imposed a sentence of 11 years, deducting pre-trial custody for a net sentence of 4.5 years.

The Crown appealed, arguing the sentence was manifestly unfit and that the trial judge erred by treating the 8 to 12 year range for 'aggravated manslaughter' established in R. v. Clarke as an immutable cap.

The Court of Appeal dismissed the appeal, holding that while subcategorizing manslaughter is not a useful sentencing approach, the trial judge did not fetter his discretion and imposed a fit sentence based on all relevant circumstances.

The parents appealed an order making their two children permanent wards of the Crown without access.

The trial judge had granted summary judgment against the mother based on a prior agreement to be bound by a parental assessment, effectively delegating the disposition decision and depriving her of a hearing on the merits.

The Court of Appeal found this process fundamentally flawed, as the burden was on the Children's Aid Society to show no triable issue regarding the best interests of the children.

The Court also admitted fresh evidence regarding the mother's mental health progress and the parents' support network.

The appeal was allowed and a new hearing ordered.

The appellant appealed an order refusing to allow late amendments to their pleadings.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that while Rule 26.01 is generally mandatory unless prejudice cannot be compensated in costs, the proposed amendments in this case were untenable and tendered at the eleventh hour by a party forced to trial.

The appellant employer appealed a trial judgment finding it wrongfully dismissed the respondent employee, who suffered from chronic fatigue syndrome.

The trial judge awarded 15 months' notice, a 9-month Wallace extension, $500,000 in punitive damages, and a costs premium.

The Court of Appeal upheld the findings of wrongful dismissal, the notice period, and the Wallace extension, finding the employer's order to meet with its doctor unreasonable and its conduct in termination high-handed.

However, the Court reduced the punitive damages to $100,000, finding the trial judge made palpable errors of fact regarding the duration and scope of the employer's misconduct, and reduced the costs premium.

The appellant appealed his dangerous offender designation and indeterminate sentence.

The Court of Appeal allowed the appeal and ordered a new hearing because the trial judge failed to consider the long-term offender provisions, as required by the subsequent Supreme Court of Canada decision in R. v. Johnson.

Additionally, the trial judge and expert witnesses had relied on findings from prior convictions that were later set aside by the Court of Appeal.

Although the dangerous offender finding was not unreasonable based solely on the predicate offences, the failure to consider the long-term offender provisions and the reliance on overturned convictions necessitated a new hearing.