Marc Rosenberg

The appellant appealed his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the eye-witness identification evidence.

However, the Court allowed the sentence appeal, holding that the trial judge erred in principle by finding the appellant was a danger to the community, as the record showed he had been rehabilitated in the four years since the offence.

Given the appellant's six years on bail without incident and the time already served, the sentence was reduced to time served plus 18 months' probation.

The appellant appealed the dismissal of its claim, arguing it only discovered its loss from a breach of duty to warn when an internal investigation report was disclosed in 2010.

The Court of Appeal dismissed the appeal, finding that the appellant knew the goods were stolen and that it had paid storage fees for missing goods by October 2006.

The court noted that knowing the full extent of damages is not required to trigger the limitation period under section 5 of the Limitations Act.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed his conviction on the basis of inadequate reasons by the trial judge.

The Court of Appeal found that the trial judge failed to consider exculpatory witness evidence, the physical unlikelihood of the appellant's alleged actions, a non-hearsay statement showing another person's knowledge of the gun, and the impact of the destruction of a TTC video.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant appealed his manslaughter conviction, arguing the proceedings should have been stayed as an abuse of process due to the misconduct of a forensic pathologist and the Office of the Chief Coroner for Ontario.

The appellant had previously been convicted of murder based on the pathologist's flawed pediatric forensic pathology evidence, a conviction later overturned by the Supreme Court of Canada.

The Court of Appeal held that while the state actors' misconduct was egregious and fell within the residual category of abuse of process, a stay of proceedings was not warranted.

Balancing the interests, the court found that a trial on the merits was appropriate given the serious nature of the allegations of chronic physical child abuse and the fact that the systemic issues had since been addressed.

The appellant appealed his conviction for second-degree murder and his sentence of life imprisonment with 14 years of parole ineligibility.

He argued that the trial judge's presiding over both his bail hearing and trial created a reasonable apprehension of bias, and that the jury charge contained errors regarding post-offence conduct, intent, and lacked balance.

The Court of Appeal dismissed the conviction appeal, finding no apprehension of bias and concluding that the jury charge, read as a whole, did not result in a miscarriage of justice.

The sentence appeal was also dismissed, as the trial judge made no errors in principle given the brutal, drug-related nature of the planned robbery and killing.

The appellant, who was previously found not criminally responsible for second-degree murder, appealed a disposition of the Ontario Review Board transferring him to a medium secure all-male unit at Brockville Mental Health Centre.

Brockville also appealed the disposition, arguing the Board failed to make sufficient inquiries about the suitability of the transfer given its waiting list.

The Court of Appeal dismissed both appeals, finding the Board had sufficient information to make its disposition and properly considered the appellant's history, including the facts underlying a recent sexual assault acquittal, to determine the least onerous and least restrictive disposition.

The appellant appealed his sentence, raising constitutional arguments regarding the Truth in Sentencing Act and the Charter.

The Court of Appeal found it unnecessary to address the constitutional arguments, noting the parties agreed to credit the appellant with an additional 315 days of pre-sentence custody.

The court held the resulting sentence was fit and at the low end of the range given the aggravating factors, including a lengthy record and the theft of vehicles worth almost $150,000.

The appeal was dismissed.

The appellant appealed his conviction for first-degree murder, arguing that the trial judge erred in admitting police investigative narrative evidence and that the Crown improperly cross-examined him on his alibi, infringing his right to silence.

The Court of Appeal held that the investigative narrative evidence was properly admitted in reply because the defence had attacked the integrity of the police investigation.

The Court also found that while some of the Crown's cross-examination and jury address regarding the appellant's right to silence and false alibi were problematic, the trial judge's instructions adequately protected the appellant's fair trial rights.

The appeal was dismissed.

The appellants were convicted of common assault and aggravated assault following a bar fight.

They appealed their aggravated assault convictions, arguing the trial judge erred by failing to properly instruct the jury on the doctrine of common purpose under s. 21(2) of the Criminal Code, despite the Crown heavily relying on it.

The Court of Appeal agreed, finding that the trial judge's brief reference to a 'joint criminal enterprise' without a full explanation of the elements of common purpose left the jury without adequate guidance.

The appeals were allowed, the convictions for aggravated assault were set aside, and a new trial was ordered.

The appellant appealed his 9-month sentence for three counts of break and enter of private dwellings, arguing that the immigration consequences justified a reduction.

The Court of Appeal dismissed the appeal, noting the trial judge was aware of mitigating factors and could not avoid immigration consequences given the maximum penalty for the offence.

The court did, however, order a correction to the warrant of committal to accurately reflect the trial judge's intended credit for pre-trial custody.

The appellants appealed a motions judge's finding that an agreement to mediate suspended the limitation period under s. 11(1) of the Limitations Act, 2002.

The appellants argued that an express written agreement was required and that the alleged agreement lacked mutual intention.

The Court of Appeal dismissed the appeal, holding that the motions judge's finding of an agreement to mediate was supported by the evidence and owed deference.

The Court clarified, however, that it did not endorse the motions judge's suggestion that s. 11(1) applies even where there is ambiguity about the existence of an agreement.

The appellant, a nurse/receptionist, forged oxycodone prescriptions and faxed them to pharmacies, where accomplices picked up the pills.

She was convicted of uttering forged documents and trafficking, and sentenced to 42 months' imprisonment.

On appeal, she argued the trial judge failed to give a W.(D.) instruction, the trafficking verdict was unreasonable because innocent pharmacists dispensed the drugs, and the sentence was unfit.

The Court of Appeal dismissed the conviction appeal, finding the jury was properly instructed and the innocent agency doctrine applied.

The sentence appeal was also dismissed, as the 42-month sentence was fit given the serious breach of trust and did not violate the parity principle.

The appellant appealed a summary judgment order dismissing its claim.

The Court of Appeal allowed the appeal, finding that the discoverability of the claim was a genuine issue requiring a trial.

The Court noted there was no evidence the appellant suffered loss or damage before selling the property in March 2010.

The appellants appealed an order declaring them vexatious litigants, arguing procedural irregularities in the application process.

The appellants contended that opposing counsel lacked authority to act for all applicants, the application judge lacked authority to hear the matter, the affidavit evidence was inadmissible, and the reasons were inconsistent.

The Court of Appeal dismissed the appeal, finding no merit to any of the procedural complaints and upholding the vexatious litigant order.

Substantial indemnity costs were awarded to the respondents due to the appellants' persistent groundless allegations.

The appellant client appealed the confirmation of an assessment of a solicitor's account, arguing the retainer agreement was an invalid contingency fee agreement under the Solicitors Act.

The Court of Appeal dismissed the appeal, finding the agreement was not a contingency fee agreement, the Act did not apply retrospectively, and the appellant had already received an assessment of the fairness and reasonableness of the account.

Following an appeal, the Court of Appeal considered written submissions regarding the costs of the motion before the lower court.

The Court ordered that the costs of the motion be remitted to the motion judge for reconsideration in light of the appellate reasons.

This was a costs endorsement following an appeal.

On consent, the parties agreed that the costs of the appeal should be fixed at $15,000 to the respondent to the appeal, inclusive of fees, disbursements and applicable taxes.

The Court of Appeal ordered costs in that amount.

The appellants challenged a regulatory decision reducing a power generator's proposed revenue requirements for nuclear compensation costs during a forward test period.

The Court of Appeal held that future compensation costs mandated by existing collective agreements were committed costs, not forecast costs that could simply be managed downward.

The Board acted unreasonably by relying on hindsight and current benchmarking information unavailable when the collective agreements were made, and by failing to conduct a prudence review based on what was known or ought to have been known at the time of the commitments.

The matter was remitted to the Board for rehearing in accordance with those principles.

Following a civil jury trial arising from a motor vehicle accident involving an intoxicated driver and alleged commercial host over-service, the appellant bar challenged the trial judge’s decision to set aside the jury’s $0 award for future income loss and substitute his own assessment.

The Court of Appeal held that the common law and Rule 52.08 threshold for disregarding a jury verdict were not met because there was some evidence supporting the jury’s conclusion.

The court upheld the trial costs award, rejecting the argument that the successful plaintiff should have been deprived of costs.

On the cross appeal, the court rejected requests for a new trial based on counsel conduct and trial complexity, but held that the jury questions and instructions on apportionment of liability were legally flawed under the commercial host framework and the Negligence Act.

Rather than ordering a new trial, the court directed that apportionment be resolved by agreement or further written submissions, with no costs of the appeal and cross appeal.

The appellant appealed a trial judge's finding of liability for a fire that destroyed his hotel and damaged adjacent buildings owned by the respondents.

The trial judge had accepted the respondents' expert evidence that the fire was caused by a defective boiler and inadequate clearance of its exhaust ventilation duct.

On appeal, the appellant argued the trial judge provided insufficient reasons and failed to articulate the standard of care.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons adequately explained his resolution of the conflicting expert evidence and his conclusion that the appellant's failure to maintain the boiler breached the standard of care and caused the fire.