Marc Rosenberg

Amicus counsel applied for an order under s. 672.11(b) of the Criminal Code directing a psychiatric assessment of the appellant to determine if he was exempt from criminal responsibility due to a mental disorder.

The application was opposed by both the self-represented appellant and the Crown.

The Court of Appeal dismissed the application, finding that the medical evidence did not demonstrate the necessity for an assessment and noting that the appellant would likely refuse to participate, rendering the assessment futile.

The appellant appealed his sentence for manslaughter.

The Court of Appeal found that the trial judge erred in principle in two respects: first, by holding that the plea to manslaughter fully accounted for the mitigating effect of the appellant's intoxication; and second, by failing to give adequate weight to the appellant's aboriginal status under s. 718.2(e) of the Criminal Code.

The Court noted the appellant was only a party to the offence, did not administer the fatal blows, and had a restorative plan in place.

The appeal was allowed, and the sentence was reduced to 15 months' imprisonment (an effective sentence of five years considering pre-sentence custody) followed by 12 months' probation.

The appellant was convicted of multiple offences including forcible confinement, assault, and criminal harassment against a former girlfriend, and was sentenced to 21 months' imprisonment.

He appealed the sentence on the basis that the trial judge failed to give him credit for 18 months spent on bail under strict house arrest conditions.

The Court of Appeal held that time spent under stringent bail conditions is a relevant mitigating factor that must be considered, and the failure to do so is an error in principle.

The appeal was allowed and the sentence was reduced to 16 months' imprisonment.

The youth appellant, aged 14 at the time of the offence, was convicted of being an accessory after the fact to murder after assisting an adult in dismembering and disposing of the bodies of two victims.

The trial judge imposed a custodial sentence of six months' secure custody and two years' probation, finding it was an exceptional case under s. 39(1)(d) of the Youth Criminal Justice Act.

The youth appealed the sentence.

The Court of Appeal dismissed the appeal, holding that the horrifying circumstances of the offence and the youth's substantial role made it an exceptional case where a non-custodial sentence would be inconsistent with the purpose and principles of sentencing.

The moving party brought a motion seeking to review or reopen the court's previous disposition of her appeals.

The Court of Appeal dismissed the motion without an oral hearing, finding a lack of merit and a lack of jurisdiction to grant the relief sought.

The court noted that the proper remedy for dissatisfaction with the disposition of the appeals was to seek leave to appeal to the Supreme Court of Canada.

The court ordered that the moving party may not file further motions in respect of these appeals.

The appellant appealed a costs order requiring him to pay the costs of an unsuccessful third-party records application to the Simcoe County Children's Aid Society.

The trial judge had relied on the court's inherent jurisdiction and rejected the need for 'fault' on the part of the accused to award costs.

The Court of Appeal allowed the appeal and set aside the costs order, finding that the trial judge erred in principle by departing from the general principles governing costs awards against an accused, which require reprehensible conduct or a serious affront to the court's authority.

The appellant appealed his conviction for first degree murder following the death of his wife, which the Crown alleged was a staged suicide via drug overdose and blunt force trauma.

The appellant argued the trial judge erred in instructing the jury on after-the-fact conduct and the absence of proven motive.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate and properly summarized the defence's position.

The parties, equal shareholders in a land development company, reached a deadlock.

The trial judge ordered the company wound up and gave the appellant the first right to buy the respondent's shares at fair market value.

After the parties failed to agree on a price, the trial judge fixed the share value and ordered a descending auction if the rights of refusal were not exercised.

The Divisional Court set aside this order and directed a public auction.

The Court of Appeal allowed the appeal, finding that the trial judge erred by abandoning the valuation mechanism without notice, and the Divisional Court erred by removing the appellant's right of first refusal.

The matter was remitted to the trial judge.

The appellant sought to certify a class proceeding against the respondent for environmental contamination caused by a nickel refinery in Port Colborne.

The motion judge and Divisional Court dismissed the certification motion.

On appeal, the Court of Appeal allowed the appeal and certified the action.

The Court found that the appellant's narrowed claim for property devaluation met all certification requirements under the Class Proceedings Act, 1992, including identifiable class, common issues, preferable procedure, and representative plaintiff.

The appellant appealed an order dismissing her counterclaim.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the counterclaim was in substance an action for damages for being sued and therefore did not disclose a valid cause of action.

The appellant husband appealed an order regarding support arrears.

The Court of Appeal dismissed the appeal, finding that the motion judge had sufficient material to infer that the husband's claim of inability to pay the arrears was false.

Costs of $5,000 were awarded to the respondent wife.

The appellant husband, residing in Saskatchewan, obtained a provisional order to terminate spousal support.

The provisional order was sent to Ontario for a confirmation hearing because the respondent wife resided there.

The Ontario court found that not all evidence from Saskatchewan had been transmitted, failing to comply with s. 18(3) of the Divorce Act, but dismissed the motion for confirmation instead of remitting it back.

The Court of Appeal allowed the husband's appeal, holding that a proper record was essential, set aside the dismissal, and directed the matter be remitted for a confirmation hearing in Alberta, where the wife now resides.

The appellants appealed a decision regarding the interpretation of a management contract.

The appellants argued that the earliest the respondents could terminate the contract was if they failed to meet the 2002 budget, and thus they were entitled to termination pay.

The Court of Appeal disagreed, finding that the contract was for a one-year term and was renewable only if the parties agreed on a sound business plan.

Since the parties could not agree on a plan, the contract was not renewed, and the respondents were not required to pay termination pay.

The appeal was dismissed.

The appellant appealed a trial judgment, arguing that the trial judge erred in finding that a denial in the statement of defence, when read with a letter from the respondent's counsel, did not constitute an admission.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to conclude there was no unambiguous concession and that the denial put the plaintiff to the proof of its allegations.

The appellant appealed a decision granting permanent wardship of a child with no access, arguing that circumstances had substantially changed since the original decision, including the death of a younger child and the original foster mother, and the appellant's continuing efforts to improve parenting abilities.

The Court of Appeal dismissed the appeal, finding that the evidence amply supported the lower courts' findings and that the changes did not alter the expert conclusion that permanent wardship with no access was in the child's best interests.

The court noted the child had been in a stable and loving foster home for three years and upsetting that stability would not be in the child's best interests.

The moving party requested a reconsideration of the Court of Appeal's judgment released on November 16, 2005.

The Court agreed to hear oral submissions on the request.

The Court ordered that the judgment be temporarily stayed pending the disposition of the reconsideration motion, allowing the endorsement to be registered on the title of the property in issue.

The appellants appealed a judgment finding that the respondent acquired ownership of disputed land through adverse possession.

The parties' predecessors in title had severed a property in 1960 and mistakenly believed the boundary divided a pond equally, contrary to the registered metes and bounds description.

The Court of Appeal dismissed the appeal, affirming that the test of inconsistent use does not apply to adverse possession claims based on mutual mistake.

The court upheld the finding of adverse possession but modified the order to grant an easement rather than a conveyance for a specific portion of the land.

The appellants appealed an order granting the respondents leave to amend their statement of claim to include a declaration that the deceased's estate was entitled to ownership of a condominium based on a resulting or constructive trust.

The appellants argued the proposed claims were statute-barred under the Limitations Act and that the amendments would cause non-compensable prejudice due to the deaths of key parties.

The Court of Appeal dismissed the appeal, holding that the proposed trust claims fell within the exception in s. 43(2) of the Act for claims to recover trust property retained by a trustee, and thus were not statute-barred.

The Court also found no non-compensable prejudice, as intention could be inferred from documentary and third-party evidence.

The appellants, owners and employees of a body-rub parlour, brought an action challenging a municipal by-law regulating such establishments.

They alleged the by-law was a colourable attempt to prohibit body-rub parlours, trenching on federal criminal law power, and that it violated ss. 8 and 9 of the Charter.

They also claimed damages for misfeasance in public office and intentional interference with economic interests.

The motions judge granted the City's motion for summary judgment, dismissing the action.

On appeal, the Court of Appeal held that the appellants raised triable issues regarding the colourability of the by-law and the s. 8 Charter claim concerning warrantless searches.

However, the Court upheld the dismissal of the tort claims and the s. 9 Charter claim.

The appellant appealed his conviction for sexual assault, arguing that the trial judge violated his equality rights under section 15 of the Charter by requiring him, as a gay man, to ascertain the complainant's sexual orientation to avail himself of the defence of honest but mistaken belief in consent.

The Court of Appeal dismissed the appeal, finding that the trial judge did not impose a special obligation based on sexual orientation.

Instead, the trial judge correctly applied the standard law, concluding the appellant was wilfully blind or reckless in assuming consent without inquiry.