Marc Rosenberg

The appellant appealed his conviction and the finding that he was a dangerous offender.

On the conviction appeal, he argued the trial judge erred in instructing the jury on evidence of his assault on police officers at the time of arrest and failed to properly summarize the defence's position.

The Court of Appeal dismissed the conviction appeal, finding no misdirection and noting the overwhelming evidence of guilt.

On the sentence appeal, the appellant argued the trial judge gave undue weight to an expert's opinion that relied on other experts not called as witnesses.

The Court dismissed the sentence appeal, finding the expert was entitled to rely on the material and the dangerous offender finding was fully supported by the evidence.

The applicant, who was self-represented, applied for bail pending his appeal from convictions for attempting to obstruct justice.

He had been sentenced to ten months' imprisonment.

The Crown conceded the appeal was not frivolous but opposed release on public interest grounds, citing the applicant's criminal record, which included breaches of court orders and forcible confinement.

The court denied the application, finding it was not in the public interest to release the applicant due to the risk that he would commit further offences, including offences against the administration of justice.

The appellants appealed an order declaring that the interest in a partnership agreement was owned as joint tenants rather than tenants in common.

The Court of Appeal dismissed the appeal, finding that the language of the partnership agreement inevitably led to the conclusion of joint tenancy.

The dismissal was made without prejudice to other broader legal claims regarding the distribution of the property.

The appellant was convicted of two counts of arson.

He was arrested and held in police custody for 16 hours before being interviewed and giving a statement.

The Crown failed to account for this 16-hour period or explain why the appellant was not brought before a justice of the peace.

The trial judge admitted the statement, finding that the appellant's consultation with counsel cured any concerns about the delay.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge misdirected himself on the burden of proof for voluntariness.

Proof of access to counsel is not a proxy for proof of voluntariness, and the Crown was required to account for the lengthy period of custody.

The appellant guaranteed her husband's business loans and provided a collateral mortgage on her home.

The bank later agreed to replace the guarantee with a new conventional mortgage, but subsequently sued on the original guarantee, which the appellant settled.

When the bank sued to enforce the new mortgage, the appellant raised defences of negligence, unconscionability, misrepresentation, and undue influence.

The Court of Appeal dismissed the defences against enforcement, finding the appellant had independent legal advice and entered the transaction freely, rebutting any presumption of undue influence.

However, the Court allowed an equitable set-off against the mortgage debt for the damages the appellant suffered when the bank breached its agreement by suing on the original guarantee.

The appellant appealed his global sentence of 32 months' imprisonment (after 40 months' credit for pre-trial custody) for sexual assault, unlawful confinement, and breach of recognizance.

He argued the trial judge failed to adequately consider his rehabilitation prospects, imposed a sentence higher than the Crown's submission, failed to mitigate for time spent in segregation, and imposed an excessive sentence.

The Court of Appeal dismissed the appeal, finding no error in principle and concluding the sentence was proper given the violent nature of the offences and the appellant's lengthy prior record.

The respondent sought costs following an appeal.

The appellant argued that the time claimed by the respondent for preparation was excessive.

The Court of Appeal agreed in part with the appellant's submissions and fixed the costs payable to the respondent at $12,000 inclusive of disbursements and GST.

The appellant appealed his assault conviction, arguing ineffective assistance of counsel and challenging the trial judge's assessment of his credibility, particularly regarding his head injury and alcohol consumption.

The Court of Appeal found that trial counsel was competent and that the trial judge properly applied the W. (D.) framework.

The court held that the Crown's cross-examination on the appellant's head injury and alcohol use was proper, and the trial judge did not misuse this evidence in rejecting the appellant's implausible version of events.

The appeal was dismissed.

The appellant appealed a motions judge's decision refusing to grant an adjournment, appoint an inspector, or invoke compliance and oppression remedies under the Condominium Act, 1998.

The Court of Appeal upheld the motions judge's exercise of discretion, noting that while the direct election of the president and prohibition of proxies were non-compliant, they were approved by the Board to address long-standing complaints.

The court also confirmed that an increase in common expenses in the annual budget does not require a by-law or compliance with s. 97(4) of the Act.

The appeal was dismissed.

The appellant appealed his sentence, arguing the sentencing judge erred by not imposing a conditional discharge.

The Court of Appeal found that the sentencing judge failed to consider the disparity between the appellant's sentence and his wife's conditional discharge for a related offence, and gave insufficient regard to the appellant's interests, including the loss of his livelihood as a chartered accountant due to travel restrictions.

The appeal was allowed, and given the passage of time, an absolute discharge was substituted.

Following the release of the court's reasons for judgment, the appellant requested a reconsideration of part of the decision.

The Court of Appeal declined to change the reasons for judgment.

Costs were fixed in favour of the respondents in the amount of $17,808.35 plus GST.

The respondents purchased condominium units as tax-sheltered investments, with the purchase price allocated between land/construction and services.

When the vendor failed to deliver title, the respondents sought compensation from the Ontario New Home Warranty Program.

The Program argued the contract was severable and refused to compensate for the services portion.

The Court of Appeal held that the agreements constituted a single contract for the provision of a home at fair market value, entitling the respondents to compensation for the full purchase price.

The Court also clarified that prejudgment interest is payable out of the guarantee fund at the rate prescribed by the Condominium Act, not the Courts of Justice Act.

The client retained the solicitors on a contingency fee basis for a catastrophic personal injury action.

The action settled at mediation for $2.5 million in general damages plus costs and disbursements.

The client signed an agreement at mediation authorizing the solicitors to take their maximum contingency fee of $500,000 inclusive of GST.

The client later challenged the fees.

The assessment officer and motions judge both reduced the fees, finding the agreement unfair or unreasonable.

The Court of Appeal allowed the solicitors' appeal, holding that the fee agreement was fully understood by the client, freely entered into, and reasonable given the significant risks assumed by the solicitors and the excellent result achieved.

The appellant brought an action against the respondent, with whom she had a secret extra-marital affair for 14 years, claiming damages for failure to provide adequate child support.

The appellant had signed a release in 1974 for $27,500.

The motions judge struck out the appellant's claims under Rule 21.

On appeal, the Court of Appeal upheld the decision, finding that the appellant's 26-year delay in seeking rescission of the release constituted acquiescence under the doctrine of laches, making her equitable claims certain to fail.

The appellant and respondent had an extramarital affair resulting in two children.

In 1974, the appellant executed a release discharging the respondent from all claims in exchange for a lump sum.

Twenty-six years later, the appellant brought an action seeking rescission of the release, breach of fiduciary duty, and unjust enrichment.

The Court of Appeal upheld the motions judge's decision to strike the claim under Rule 21, finding that the appellant's lengthy delay in bringing the equitable claims constituted acquiescence, making the action certain to fail.

The adult appellants brought an action against the respondent, their alleged biological father, claiming damages for breach of fiduciary duty and unjust enrichment for failing to provide adequate child support during their youth.

The motions judge struck the statement of claim under Rule 21.

On appeal, the Court of Appeal upheld the decision, finding that the claim was essentially one for retroactive child support which circumvented the comprehensive statutory scheme.

The court also held that on the facts pleaded, the respondent owed no fiduciary obligations to the appellants as he never assumed a parental role or exercised control over their lives.

The appellant appealed a trial judge's decision finding no agreement existed for the respondent to pay a real estate commission or finder's fee.

The Court of Appeal upheld the trial judge's conclusion that the three property 'flips' were part of one transaction for which the appellant had already earned a commission, and that the respondent had refused to sign an agreement for any further fee.

The appeal was dismissed.

Following a successful appeal, the appellant submitted a bill of costs.

The respondent failed to provide responding submissions.

The Court of Appeal assessed the costs based on the appellant's bill and awarded costs on a partial indemnity scale fixed at $11,642.36 inclusive of GST and disbursements.

The respondent physician pleaded guilty to defrauding OHIP of nearly $1 million over seven years through false billings.

The trial judge imposed a conditional sentence of two years less a day and a restitution order.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding that a conditional sentence was demonstrably unfit given the egregious breach of trust and the paramount need for general deterrence in large-scale frauds against the public health care system.

Taking into account the respondent's unusual mitigating circumstances and the time already served under the conditional sentence, the Court imposed a sentence of 18 months' incarceration.

The appellants and respondents owned cottage properties on Lake Erie.

The trial judge found the appellants had acquired prescriptive easements for parking and a pier on the respondents' land, but applied equitable proprietary estoppel to impose annual licence fees.

The Court of Appeal held the trial judge erred in applying the equitable doctrine without a finding of unconscionability, setting aside the licence fees.

The Court dismissed the respondents' cross-appeal, upholding the findings that parking was reasonably necessary for the enjoyment of the dominant tenements, and that proprietary estoppel was established for a well and concrete blocks.