Marc Rosenberg

The appellant appealed a trial judge's finding that there was no oral agreement displacing the effect of title documents and no resulting trust.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence.

The appellant appealed the trial judge's decision that he had not established a permanent and serious impairment of an important physical, mental or psychological function resulting from a motor vehicle accident under s. 267.5(5) of the Insurance Act.

The appellant argued the trial judge erred in her consideration of future events.

The Court of Appeal dismissed the appeal, finding that the trial judge did consider future events but properly concluded the evidence was mere conjecture, and her conclusion that the statutory threshold was not met was supported by the evidence.

The young person pleaded guilty to aggravated assault following a swarming incident where the victim was repeatedly stabbed with a box cutter.

The youth court judge imposed a sentence of two years' probation.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding the probation sentence demonstrably unfit given the seriousness of the violent offence, the young person's role as the ringleader, and the devastating impact on the victim.

The sentence was varied to a nine-month custody and supervision order followed by six months' probation.

The appellants obtained loans from the respondent financial institutions to purchase mutual funds based on the advice of their financial advisors.

When the investments failed to perform, the appellants faced margin calls and suffered losses.

They sued the financial institutions, alleging negligence and breach of fiduciary duty for failing to advise them of the risks associated with the loans.

The motion judge granted summary judgment dismissing the claims against the financial institutions.

The Court of Appeal upheld the decision, finding that the relationship between a bank and its customer is generally that of debtor and creditor, and there were no special circumstances or exceptional relationships to give rise to a duty of care or a fiduciary duty to advise the borrowers.

The appellant appealed his sentence for fraud.

The trial judge had imposed a lengthier sentence than originally imposed, explaining the reasons for the increase, including the magnitude of the frauds and the absence of an early guilty plea.

The Court of Appeal found the sentence fit and dismissed the appeal.

The appellant appealed his criminal conviction, arguing that the trial judge erred in assessing the complainant's testimony and identification evidence, and challenging the admissibility of his statement under section 7 of the Charter.

The Court of Appeal dismissed the appeal, finding that the trial judge gave comprehensive reasons and properly addressed the frailties in the evidence.

The Court also held that the appellant was precluded from raising the section 7 Charter issue for the first time on appeal, as it had not been raised at trial and the statement's voluntariness had been conceded.

The appellant appealed a trial judgment dismissing its claim that the steam rate under a 1994 Steam Sale Agreement should be based solely on nuclear-generated steam, rather than including oil-fired steam.

The trial judge interpreted the phrase 'full reasonable cost recovery principle' to allow the respondent to recover its actual costs, including those from an oil-fuelled back-up boiler.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the factual matrix or her application of contract interpretation principles.

The appellant appealed a summary conviction appeal court decision that ordered a new trial on the basis that the trial judge's reasons for dismissing the charges did not meet the requirements of R. v. Sheppard.

The Court of Appeal allowed the appeal, finding that the trial judge's reasons were sufficient to explain why the traffic stop was arbitrary and violated s. 9 of the Charter.

The trial judge had accepted the appellant's evidence and rejected the officer's testimony regarding the reason for the stop.

The Court of Appeal restored the order dismissing the charges.

Following the release of reasons for decision, the respondent sought costs of the appeal on a partial indemnity basis against the appellant.

The Court of Appeal amended its previous costs order, which had awarded no costs, to award the respondent $15,000 in partial indemnity costs, taking into account the novelty of the issue and the fact that costs were only sought against the appellant.

The appellant and the Crown both appealed a sentence of six months' imprisonment, three years' probation, and a ten-year s. 161 order for internet luring.

The appellant had communicated explicitly with an undercover officer posing as a 13-year-old girl and was arrested at a pre-arranged meeting location.

The Crown sought to introduce fresh statistical evidence on youth internet usage, which the Court of Appeal rejected for failing the due diligence requirement.

The Court upheld the trial judge's factual findings, including the rejection of an expert's opinion that the appellant did not intend physical contact.

The Court concluded that a conditional sentence was inappropriate for this offence, and while the six-month sentence was lenient, it was not manifestly inadequate.

Both appeals were dismissed.

The tenant (TDL) leased property from a landlord and later signed a postponement and non-disturbance agreement (PNDA) with the landlord's mortgagee.

TDL obtained a judgment against the landlord for damages and costs, with a right to set off the amount against rent.

When the landlord defaulted on the mortgage, the mortgagee went into possession and demanded rent without the set-off.

The Court of Appeal held that under the PNDA, the mortgagee stepped into the landlord's shoes and assumed the existing state of accounts, including TDL's right of set-off.

The appeal was allowed.

The appellants, a 14-year-old Jehovah's Witness and her parents, fled British Columbia to Ontario to avoid a court order authorizing blood transfusions without consent.

The BC Director obtained an ex parte interim custody order in BC and successfully enforced it in Ontario, resulting in the child's return to BC.

Although the underlying medical dispute was subsequently resolved and the BC orders vacated, the appellants appealed the Ontario enforcement orders.

The Court of Appeal held the appeal was moot but exercised its discretion to hear the procedural issues.

The Court allowed the appeal, finding the Ontario courts erred in enforcing the BC ex parte custody order under s. 41(1) of the Children's Law Reform Act because the appellants were denied an opportunity to be heard, and the motion judge erred in refusing to hear viva voce evidence.

The young person appealed his convictions for robbery and using an imitation firearm during a home invasion, as well as his sentence of 16 months secure custody and eight months community supervision.

The Court of Appeal dismissed the conviction appeal, finding the fingerprint evidence compelling.

On the sentence appeal, the Court found the trial judge erred in principle by ignoring the Youth Criminal Justice Act and focusing on general deterrence.

While a custodial sentence was warranted because the home invasion constituted a 'violent offence', the Court varied the sentence to 15 months (six months secure, four months open, five months supervision) due to mitigating factors and confirmed the court's jurisdiction to combine open and secure custody for a single offence.

The Crown appealed the accused's acquittal on charges of impaired driving and driving over 80.

The trial judge and summary conviction appeal judge had excluded breathalyzer evidence under s. 24(2) of the Charter, finding that police officers violated the accused's s. 8 rights by walking onto his driveway to investigate him.

The Court of Appeal allowed the appeal, holding that the officers' entry onto the driveway was justified by the implied licence doctrine.

Because the accused did not ask the officers to leave, they were lawfully on the property when they made the breathalyzer demand, meaning no s. 8 violation occurred.

The appellant was convicted of importing cocaine after drugs were found in his luggage trolley at the airport.

At trial, the Crown relied on an unrecorded inculpatory statement allegedly made to police, which the appellant denied making.

The trial judge refused to give a special jury instruction regarding the police's failure to audio or videotape the statement, and permitted the Crown to cross-examine the appellant on his prior drug convictions.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred in both failing to give the requested jury instruction on the unrecorded statement and in allowing cross-examination on the prior drug convictions, as their prejudicial effect outweighed their probative value.

The Crown appealed a trial judgment finding it liable for breach of contract and awarding $2.52 million in compensatory damages plus $400,000 in punitive damages to a software developer.

The trial judge found that the government deliberately undermined the objectives of a portal development agreement by secretly encouraging a subcontractor to develop a competing product, breaching an implied duty of good faith.

The Court of Appeal upheld the findings on liability and compensatory damages, concluding the government's conduct undermined the contract's business efficacy and the parties' reasonable expectations.

However, the Court set aside the punitive damages award, finding it served no rational purpose since the breach of good faith already formed the basis of the compensatory damages.

The developer's cross-appeal for lost market value and lost opportunities was dismissed.

The appellants, former nursing students at Loyalist College, sought to certify a class action against the college for breach of contract and negligent misrepresentation.

They alleged the college falsely promised a 'Queen's option' allowing them to obtain a nursing degree from Queen's University after completing two years at Loyalist.

The motion judge and Divisional Court dismissed the certification motion, finding no identifiable class or common issues.

The Court of Appeal allowed the appeal, holding that the lower courts erred in their application of section 5 of the Class Proceedings Act.

The Court found that the pleadings disclosed a cause of action, there was an identifiable class, common issues existed regarding the contract and representations, and a class proceeding was the preferable procedure.

In the context of a Reference directed by the Minister of Justice regarding a 1959 murder conviction, the Crown applied for a production order under s. 683(1)(a) of the Criminal Code against third-party journalists.

The journalists had produced a documentary about the case and interviewed several witnesses who were now providing fresh evidence.

The journalists resisted, arguing the court lacked jurisdiction to issue a production order against a third party for investigative purposes.

The Court of Appeal held it had jurisdiction to order production where it is in the interests of justice to assist in determining the admissibility of fresh evidence.

The court ordered the production of two of the three retained video recordings.

The appellant appealed convictions arising from sexual offences against a child, arguing the trial judge improperly treated the case as a credibility contest, misused the child's complaint to her mother, gave unreasonable reasons for rejecting the defence evidence, and applied different credibility standards to the parties.

The Court of Appeal held that the trial judge properly instructed himself under the W.(D.) framework, did not merely choose between competing versions, and gave adequate reasons grounded in the evidence.

The court further held that the complaint to the mother was admissible under the narrative exception and was used only for a limited, permissible purpose in assessing truthfulness.

The appeal was dismissed.

The appellant father appealed a trial judgment awarding the respondent mother sole custody of their child and permitting her to relocate to Quebec.

The father argued the mother interfered with his access and that the trial judge failed to apply the maximum contact principle or give proper weight to the custody assessor's report.

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

The court emphasized that trial judges are owed considerable deference in custody matters and that the weight given to expert evidence is for the trier of fact.

The mobility clause was struck out as moot since the mother had already returned to Ontario.