Marc Rosenberg

The appellants, operators of an adult entertainment parlour, challenged the validity of a 2002 regional anti-smoking by-law that prohibited smoking in bars but exempted casinos.

They argued the by-law was invalid because the underlying 1997 approvals from local municipalities were done by resolution rather than by-law, no new approvals were obtained for the 2002 by-law, and the exemption for casinos was discriminatory.

The Court of Appeal dismissed the appeal, finding that resolutions were sufficient to convey approval, the original approvals authorized the general exercise of the power to regulate smoking, and the distinction between bars and casinos was expressly authorized by the enabling statute.

The Court allowed the respondent's cross-appeal on costs, finding the motion judge erred in denying costs based on his personal disapproval of the political decision to exempt casinos.

The appellant appealed a decision of the Summary Conviction Appeal Court that had overturned his acquittal.

The Court of Appeal found that the summary conviction appeal judge erred in concluding the trial judge improperly treated the arresting officer's notes as evidence or required them to confirm oral testimony.

The trial judge properly used the absence of an important fact in the notes regarding the origin of the odour of alcohol to assess the officer's credibility.

The trial judge's finding of reasonable doubt regarding the officer's reasonable suspicion was restored.

The appellant appealed a condition of his probation order.

The Crown conceded that condition r(8) of the probation order was not a reasonable condition.

The Court of Appeal granted leave to appeal, allowed the appeal, and deleted the condition.

The appellant appealed a summary conviction appeal court decision regarding an impaired driving charge.

At trial, the defence expressly conceded there were no Charter issues and did not object to the admissibility of evidence.

On appeal, the appellant attempted to argue that the officer lacked reasonable grounds for the breath demand under s. 254(3) of the Criminal Code, affecting the presumption in s. 258(1)(c).

The Court of Appeal held that this Charter argument was not open to the defence given their position at trial, and the non-Charter argument was answered by the Supreme Court's decision in R. v. Rilling.

Leave to appeal was granted, but the appeal was dismissed.

The appellant appealed his convictions on the basis of inconsistent verdicts.

He had admitted participation in all charged offences but relied on the defences of duress and necessity, which applied equally to all crimes as part of a single transaction.

The Court of Appeal found that the jury must have reached an unjustifiable compromise, allowed the appeal, set aside the convictions, and entered acquittals.

The appellant appealed his conviction and sentence, arguing he received ineffective assistance of counsel because his trial counsel failed to call his wife as an alibi witness.

The Court of Appeal dismissed the conviction appeal, finding that trial counsel had reasonable grounds for not calling the witness and that the appellant failed to establish prejudice.

The sentence appeal was also dismissed, as the sentence of two years less a day was within the appropriate range for the calculated and cold-blooded offence.

The appellant, a clinical psychologist, sought a declaration that her insurer had a duty to defend her against an action for negligence and defamation arising from a psychological report she prepared.

The insurer denied coverage based on a professional services exclusion in her Commercial General Liability policy.

The Court of Appeal upheld the application judge's decision, finding that the injuries alleged were due to the rendering of professional services and did not fall within the incidental medical malpractice exception.

The appeal was dismissed.

The respondents, a group of neighbours, obtained an injunction from the Superior Court restraining the landlords from operating an illegal rooming house.

When the landlords failed to evict the tenants through the Ontario Rental Housing Tribunal, the neighbours obtained a Superior Court order requiring the tenants to vacate the premises.

The tenants appealed, arguing the court lacked jurisdiction.

The Court of Appeal allowed the appeal, holding that the Tenant Protection Act confers exclusive jurisdiction on the Tribunal to terminate residential tenancies and evict tenants, thereby ousting the Superior Court's jurisdiction to make such an order.

The mother brought an application for child support for the parties' child, who was over the age of majority and attending university away from home.

The application judge ordered the father to pay retroactive child support, ongoing table amounts, and a pro-rated share of extraordinary expenses.

The father appealed.

The Court of Appeal allowed the appeal, finding that the application judge failed to properly consider the factors for retroactive support, lacked sufficient evidence to justify the extraordinary expenses, and erred by not considering whether the table amount was inappropriate under s. 3(2)(b) of the Guidelines for a child attending university away from home.

The court set aside the order and directed a trial of the outstanding issues.

The appellant was convicted of three counts of criminal negligence causing death and one count of criminal negligence causing bodily harm after driving impaired the wrong way on a 400-series highway.

He appealed his convictions, arguing the trial judge erred by refusing an adjournment and forcing him to proceed unrepresented after his counsel was removed from the record.

The Court of Appeal dismissed the conviction appeal, finding the trial judge reasonably concluded the appellant was manipulating the system to delay the trial.

The sentence appeal was also dismissed, with the court upholding the nine-year imprisonment term due to the severe aggravating factors.

The Crown appealed the accused's acquittal on driving charges.

At arraignment, the Crown sought to amend the information to correct the make and model of the accused's vehicle.

The defence refused to consent, and the trial judge refused the amendment, citing prejudice.

The Crown offered no evidence, resulting in an acquittal.

The Court of Appeal dismissed the appeal, holding that while the trial judge erred in finding prejudice, she correctly refused the amendment because a court has no power under s. 601 of the Criminal Code to amend an information to conform to evidence before any evidence has been heard.

The Court of Appeal for Ontario allowed the appeal from the judgment of the Superior Court of Justice.

The court ordered that an order go in terms of the draft order filed by the parties.

The appellants abandoned their appeal.

The Court of Appeal for Ontario dismissed the appeal as abandoned and awarded costs of $7,500 to the Clarkson respondents and $4,000 to the City of Hamilton as per a settlement.

The appellant appealed an order of the Superior Court of Justice.

As the matter was settled between the parties and the appeal was unopposed, the Court of Appeal allowed the appeal without commenting on the merits and made no order as to costs.

The Crown appealed a Summary Conviction Appeal Court decision that quashed the respondent's conviction.

The respondent had confronted intruders on his rural farm at 4:00 a.m. and removed the keys from their vehicle, leading him to fear for his safety as the intruders could not leave without retrieving the keys.

The Court of Appeal agreed with the summary conviction appeal judge that the trial judge erred in finding the respondent lacked reasonable grounds to apprehend imminent danger, as his belief was based on objectively verifiable facts.

The Crown's appeal was dismissed.

The appellant appealed a summary conviction appeal court decision that allowed a Crown appeal.

The Court of Appeal dismissed the appeal, finding no burden on the Crown to establish reasonable and probable grounds, abundant evidence that breath samples were taken pursuant to a demand under s. 254, and that the appellant was served with a copy of the certificate.

The court also found no merit to the Charter arguments, noting the burden was on the appellant to establish a breach and no objection was taken at trial.

The appellants appealed a sentence imposed for failing to remit $750,000 in GST funds.

The Court of Appeal found that while the trial judge erred in rejecting unchallenged submissions regarding the appellants' financial circumstances without notice, a conditional sentence was not appropriate.

The court held that the massive fraud on the public ordinarily called for a penitentiary sentence, and although mitigating factors justified a reformatory sentence, general deterrence required a custodial term.

The appeal was dismissed.

The appellant was charged with possession of marijuana after a small amount was found in her purse during a routine security screening at the entrance of a courthouse.

She argued that the warrantless search violated her rights under s. 8 of the Charter.

The trial judge and summary conviction appeal judge both rejected this argument and convicted her.

The Court of Appeal dismissed the appeal, holding that the search was authorized by law, the law was reasonable given the vital objective of ensuring courthouse safety, and the search was carried out in a reasonable manner.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board's decision to deny an absolute discharge was unreasonable, reversed the burden of proof, and breached procedural fairness by rejecting a joint submission without express notice.

The hospital's doctor had recommended an absolute discharge, which was supported by both the appellant and the Crown.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's lack of a track record of remission and programming for substance abuse.

The Court also found no reversal of the burden of proof and held that the Board's questioning provided sufficient notice of its concerns regarding the joint submission.

The appellants appealed a trial judge's finding that the respondent's carport overhung their property.

The Court of Appeal dismissed the appeal, finding there was sufficient evidence on the record to support the trial judge's conclusion, which the appellants failed to answer with their own evidence.