Marc Rosenberg

The plaintiffs claimed damages for historical sexual assaults against multiple defendants.

The plaintiffs entered into Pierringer settlement agreements with all defendants except three, and the action against the settling defendants was dismissed.

The remaining active defendant, Dr. Kerr, moved to set aside the dismissal order, arguing the trial judge might lack jurisdiction to apportion fault to the settling defendants under s. 1 of the Negligence Act.

The motions judge held the court lacked jurisdiction.

The Court of Appeal allowed the appeal, holding that the Superior Court has jurisdiction to determine the degree of fault of the settling defendants, even though they will not be parties at trial, as this avoids prejudice to the non-settling defendants and promotes the public interest in settlement.

The appellants appealed an order of the Superior Court of Justice regarding their right to recovery under a bond.

The Court of Appeal held that naming the appellants on the bond did not give them an independent right to recovery under their lending agreements.

The court declined to interfere with the motion judge's interpretation of the inter-lender agreement and dismissed the appeals with costs.

The appellants appealed a trial management order in a child protection proceeding.

The Court of Appeal dismissed the appeal, finding no error in the exercise of discretion.

The Court clarified that the statutory requirement for a child to be 'brought before the court' does not mandate physical presence in the courtroom, and confirmed that the governing legislation permits a bifurcated, non-continuous hearing.

The appellant appealed his convictions and sentence for six sexual assaults.

He argued that the authorizing judge lost jurisdiction to issue a DNA warrant by failing to give notice to his counsel.

The Court of Appeal held that even if there was a breach of section 8 of the Charter, the DNA evidence was admissible under section 24(2) because it would have been inevitably discovered and the breach was not serious.

The Court also found the trial judge's jury instructions adequate.

On the sentence appeal, the Court found the trial judge erred in principle by refusing two-for-one credit for pre-sentence custody solely for treatment purposes, but upheld the total sentence as fit given the severity of the offences.

The appellant was acquitted at trial of an impaired driving-related offence after the trial judge excluded evidence under s. 24(2) of the Charter, finding the officer lacked reasonable grounds for a breath demand.

The summary conviction appeal court overturned the acquittal, concluding the trial judge analyzed the evidence piecemeal.

The Court of Appeal allowed the appeal and restored the acquittal.

The majority held that the trial judge properly considered the totality of the evidence and his conclusion that the officer lacked reasonable grounds was not unreasonable.

The trial judge's application of the Collins factors to exclude the evidence was also upheld.

The appellant, detained under a security certificate pursuant to the Immigration and Refugee Protection Act, appealed a Superior Court decision staying his application for habeas corpus.

He argued the Federal Court could not provide a timely remedy for his constitutional claims.

The Court of Appeal dismissed the appeal, holding that the Superior Court properly declined jurisdiction because the Federal Court has concurrent jurisdiction, specialized expertise in immigration and national security, and an ongoing process that should not be circumvented.

The appellant appealed his convictions and sentences for sexual assault and aggravated assault.

The Court of Appeal found that trial counsel provided ineffective assistance by failing to interview a nurse and cross-examine the complainant on a statement that supported the defence of consent.

The court quashed the sexual assault conviction and ordered a new trial.

The court also reviewed the five-year concurrent sentence for aggravated assault, reducing it to four years in light of fresh evidence showing the appellant's progress with rehabilitation, while noting the serious domestic context of the offence.

The plaintiff sued the defendant for sexual assault and sought production of the Crown brief from the defendant's related criminal proceedings.

The criminal trial had been stayed, and the defendant's statements to the police had been excluded due to a breach of his s. 10(b) Charter rights.

The Court of Appeal upheld the Divisional Court's creation of a screening mechanism, requiring notice to the Attorney General and police before a Crown brief can be produced in civil proceedings.

However, the Court of Appeal reversed the Divisional Court's ruling that the defendant's excluded police statements were shielded from production, holding that the criminal rule of automatic exclusion for conscriptive evidence does not apply in the civil discovery context.

The appellant appealed a partial summary judgment dismissing his claims for an accounting of partnership profits from 1990 to 2000 and damages for mental distress against two of his former law partners.

The Court of Appeal upheld the dismissal of these claims, finding no error by the motions judge, except regarding the claim for an accounting for the period from January 2000 to July 2001, which the appellant was permitted to pursue.

A cross-appeal seeking to dismiss the claim against a third partner for alleged abusive conduct was dismissed.

The appellant appealed his conviction for possession for the purpose of trafficking.

The Court of Appeal found that the trial judge erred in concluding there was no section 8 Charter violation, as the appellant was detained and should have been given his section 10(b) rights before consenting to the search.

However, the Court held that the evidence should not be excluded under section 24(2).

The Court also found the verdict was reasonable given the overwhelming evidence that the appellant and his companion were drug couriers.

The appeal was dismissed.

The Crown appealed the respondents' acquittals for criminal negligence causing death following a fatal horseback riding accident involving a ten-year-old novice rider.

The Crown argued the trial judge erred in excluding evidence of prior incidents involving the horse and expert evidence regarding safe trail ride operations.

The Court of Appeal found that the trial judge erred in excluding one prior incident and the expert evidence, as the expert evidence met the necessity criterion.

However, the appeal was dismissed because the Crown failed to demonstrate with a reasonable degree of certainty that the verdicts would not necessarily have been the same had the errors not occurred.

The respondent, a federal employee working in Saskatchewan, brought a constructive dismissal action in Ontario after experiencing workplace harassment in Saskatchewan and resigning due to a delayed response to his grievance from Ottawa.

The Crown appealed the motions judge's finding that Ontario had jurisdiction.

The Court of Appeal allowed the appeal, holding that under s. 21(1) of the Crown Liability and Proceedings Act, the claim arose in Saskatchewan where the employment and harassment occurred, not in Ontario where the delayed response originated.

The appellant appealed the dismissal of his application for certiorari to quash an order committing him to stand trial for first degree murder.

The preliminary hearing judge had committed the appellant based on the theory that the murder occurred during a sexual assault or unlawful confinement.

The Court of Appeal found there was no evidence of anal intercourse, as only a trace amount of the deceased's own sperm was found, and no evidence of unlawful confinement.

The appeal was allowed, the committal for first degree murder was quashed, and the appellant was ordered to stand trial for second degree murder.

The accused, charged with arson, retained out-of-town counsel under a legal aid certificate.

Legal Aid Ontario refused to authorize travel expenses or junior counsel.

Shortly before trial, the accused successfully applied for a 'Fisher' order requiring Legal Aid or the Crown to pay these expenses to ensure a fair trial.

The Crown and Legal Aid appealed.

The Court of Appeal allowed the appeal and quashed the order, holding that the state has no positive obligation to fund counsel of choice except in rare circumstances where a fair trial is otherwise impossible.

The court found no evidence that local competent counsel were unavailable or that the accused's right to a fair trial was imperilled.

The appellants appealed a motions judge's decision finding that time was of the essence in a contract and that a fundamental breach had occurred.

The appellants also sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motions judge's application of the law from Sail Labrador Ltd. v. Challenge One (The).

The court also refused to admit the fresh evidence, concluding it did not meet the test for admission and was not relevant to the finding that time was of the essence.

The appellant appealed the dismissal of its application for a certificate of pending litigation and specific performance of a real estate agreement.

The agreement was signed by an individual using an unregistered business name 'in trust for a company to be formed'.

The appellant, a pre-existing company, claimed status through a later assignment.

The Court of Appeal dismissed the appeal, holding that the individual violated the Business Names Act and lacked capacity to maintain a proceeding or assign benefits to circumvent the legislation.

The appellant appealed an order of the motions judge who refused an adjournment and dismissed the counter-application.

The appellant's former counsel had requested an adjournment to allow new counsel to file a Notice of Change of Solicitor, but the motions judge refused because former counsel could not contact the new counsel who was in another court.

The Court of Appeal (majority) held that the motions judge did not reasonably exercise his discretion and should have given the appellant a reasonable time to confirm new counsel.

The appeal was allowed and the order set aside.

Abella J.A. dissented, finding no error in the motions judge's discretion given the appellant's history of delay.

The appellant appealed a $60,000 costs award made by the Divisional Court following a one-day hearing.

The Court of Appeal found the award to be grossly excessive, disproportionate to similar proceedings, and violative of compensation principles underlying the costs grid.

The appeal was allowed, the costs award was set aside and reduced to $18,000, and the appellant was awarded $5,000 for the costs of the appeal and leave application.

The appellants appealed the judgment of the trial judge.

The Court of Appeal for Ontario dismissed the appeal, agreeing with the comprehensive reasons of the trial judge.

The court found that the record supported the trial judge's factual findings and found no error in his application of the law to those facts.

Costs were fixed at $15,000.

The appellants appealed a judgment granting partition and sale of lands.

They argued there was an existing agreement for the purchase and sale of the lands.

The Court of Appeal upheld the applications judge's finding that the exchange of letters only committed the parties to a process and no binding agreement existed, as several terms had not been agreed upon.

The respondent's prima facie right to partition and sale was affirmed, and the appeal was dismissed with costs.