Marc Rosenberg

The appellant appealed a summary judgment dismissing its counterclaim and cross-claim in a patent dispute.

The Court of Appeal allowed the appeal, finding that the motions judge erred by assessing credibility, weighing evidence, and making findings of fact on disputed issues, which are functions reserved for the trier of fact.

The motions for summary judgment were dismissed and the matter was sent to trial.

The court reviewed written submissions regarding the costs of a motion for leave to appeal.

The moving party argued that costs should not follow the event or should be nominal, while the responding party sought costs in excess of $2,000.

The court rejected both extremes, fixing the responding party's costs at $1,400 plus GST.

The appellant appealed a trial judgment regarding liability and damages for a bridge collapse.

The appellant argued the trial judge erred in findings of negligence under the Highway Traffic Act, failing to apportion negligence under the Negligence Act, misusing similar fact evidence, and improperly depreciating the cost of new materials used for repairs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings on negligence, noting contributory negligence was not pleaded or argued at trial, and upholding the depreciation figure as appropriate.

The appellant appealed his convictions for armed robbery, pointing a firearm, and being masked with intent, as well as his sentence of 17.5 years.

He argued the trial judge erred in instructions regarding eyewitness identification and prior statements, and that there was no evidence the handgun was a firearm.

The Court of Appeal dismissed the conviction appeal, finding any errors in the jury charge were harmless and there was sufficient circumstantial evidence that the weapon was a firearm.

The sentence appeal was also dismissed, as the lengthy sentence was justified by the appellant's status as an untreatable, dangerous career criminal with a history of bank robberies.

The appellant mother previously succeeded in an appeal permitting her to move from Ottawa to Oakville with her daughter and granting her sole legal custody.

The respondent father subsequently requested the court amend the judgment regarding custody, arguing it had not been contested.

The Court of Appeal affirmed its previous order granting sole custody to the mother, finding that joint custody requires a high degree of cooperation which was not present on the record.

The court also awarded costs to the appellant, fixed at $20,000 plus disbursements, taking into account the additional access costs the respondent would incur due to the move.

The appellant was convicted of attempted murder and other offences following a shooting at his high school.

At trial, he was found fit to stand trial and did not raise a defence of not criminally responsible on account of mental disorder (NCRMD).

On appeal, fresh psychiatric evidence established that the appellant suffered from severe paranoid schizophrenia and was NCRMD at the time of the offences.

However, the appellant was too mentally ill to participate in his appeal or instruct counsel.

The Court of Appeal held that it had jurisdiction to hear the appeal despite the appellant's incompetence, as the Criminal Code does not require an appellant to be fit to prosecute an appeal, provided procedural fairness is ensured.

The Court allowed the appeal and substituted a verdict of NCRMD, finding that a new trial was unnecessary given the conclusive fresh evidence.

The appellant appealed his conviction for a drug offence.

The Court of Appeal found several serious errors in the trial, including the trial judge's failure to instruct the jury on the element of control when answering a question about possession, failing to follow the proper procedure for answering jury questions, and improperly admitting highly prejudicial hearsay evidence suggesting guilt by association.

However, the Court declined to enter an acquittal, finding there was sufficient evidence for a properly instructed jury to convict.

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

The Crown appealed the directed verdicts of acquittal of the respondents on charges of keeping and being inmates of a common bawdy-house.

The trial judge had acquitted the respondents based on Supreme Court of Canada decisions regarding acts of indecency.

The Court of Appeal held that the trial judge erred in law, as there was evidence that the respondents offered to perform acts of masturbation for payment, which a trier of fact could find constituted acts of prostitution.

The Court also found sufficient evidence of frequent or habitual use to pass the directed verdict stage.

The appeals were allowed, the acquittals set aside, and new trials ordered.

The appellants appealed a partial summary judgment granted to the respondents regarding a fourth payment allegedly held in trust.

The Court of Appeal allowed the appeal, finding that the fourth payment was not clearly severable from the rest of the case and that the respondents failed to meet the burden of demonstrating no genuine issue for trial.

The court noted the lack of documentary evidence supporting the trust claim and the respondents' failure to explain the transaction.

The partial summary judgment was set aside, with costs reserved to the trial judge.

The appellants appealed two orders of the motions judge.

The first order dismissed their action and struck their defences to the counterclaim due to their failure to post security and pay outstanding costs awards.

The second order granted judgment to the respondents on their counterclaim, declaring them owners of personal property left in a building.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's exercise of discretion to strike the pleadings, and agreeing that the appellants had intentionally abandoned the property pursuant to an agreement.

The respondent insurance company sued the appellant insurance broker to enforce an indemnity provision in their agreement, under which the broker agreed to cover losses on insurance programs it sold.

The broker argued the provision was an illegal and unenforceable contract of reinsurance because the broker was not licensed under the Insurance Act.

The trial judge found the agreement was not for insurance and enforced it.

The Court of Appeal dismissed the appeal, holding that even if the agreement violated the Insurance Act, it remained enforceable.

The licensing requirements exist to protect the public, not to allow sophisticated industry participants to avoid their contractual obligations.

The respondent sought costs of the appeal on a substantial indemnity basis, arguing the appellant's conduct was egregious.

The Court of Appeal rejected this submission, finding the appeal was not vexatious or devoid of merit.

Costs were awarded to the respondent on a partial indemnity basis, fixed at $8,500 plus GST.

The appellant was convicted of living off the avails of prostitution and exercising direction for the purpose of aiding prostitution in relation to an escort agency.

On appeal, he argued that business records containing double hearsay were improperly admitted and that breaches of a publication ban deprived him of a fair trial.

The Court of Appeal dismissed the conviction appeal, finding the records admissible under the co-conspirators exception to the hearsay rule and that the publication ban issues did not cause a miscarriage of justice.

The sentence appeal was allowed, reducing the sentence from two years less a day to 12 months' imprisonment due to the appellant's lack of prior record and the trial judge's refusal to allow time for sentencing submissions.

The appellant appealed his conviction and sentence for drug offences.

The Crown conceded that the guilty plea, entered in error at the conclusion of a Charter voir dire, should be struck.

The Court of Appeal found that the trial judge erred in minimizing the seriousness of a section 8 Charter breach, which occurred when the appellant was searched without reasonable and probable grounds before entering a police cruiser after being detained in freezing weather.

The Court concluded that the seriousness of the breach favoured exclusion of the evidence under section 24(2) of the Charter.

The appeal was allowed, the convictions were set aside, and acquittals were entered.

The appellant appealed his robbery conviction, arguing it was unreasonable because neither the victim nor the arresting officer could identify him in court six years after the offence.

The Court of Appeal dismissed the appeal, noting that defence counsel had admitted at trial that the appellant was the person arrested on the night of the offence.

This admission, combined with the victim's out-of-court identification and circumstantial evidence, provided sufficient evidence of identification.

The appellant was convicted of conspiracy to traffic in heroin and trafficking in heroin.

At trial, the judge directed a verdict of acquittal on possession charges but allowed the jury to consider evidence relating to those charges when deliberating on the remaining counts.

On appeal, the appellant argued this violated the Supreme Court's ruling in Grdic.

The Court of Appeal dismissed the appeal, holding that Grdic does not apply to overlapping evidence in a single proceeding with multiple counts, as established in Arp.

The court also dismissed grounds of appeal relating to the 'in furtherance' jury instruction and the trial judge's reference to money found in a stuffed bear.

The appellants appealed the judgment of the lower court.

The Court of Appeal for Ontario dismissed the appeal with costs, agreeing with the reasons of the lower court judge.

Counsel were permitted to file written submissions on the amount of costs.

The appellant mother appealed a motions judge's decision denying her request to relocate from Ottawa to Oakville with her five-year-old daughter.

The Court of Appeal found the motions judge erred by refusing to admit fresh evidence regarding the mother's pregnancy and changed family circumstances, refusing to permit cross-examination of the court-appointed assessor, and delegating the mobility determination to the assessor without independently applying the Gordon v. Goertz factors.

The appeal was allowed, permitting the mother to relocate with the child.

On a sentence appeal from a manslaughter conviction arising from the killing of an abusive parent, the court held that the sentencing judge committed reviewable errors in principle.

The judge applied an unduly narrow penitentiary range, failed to treat provocative conduct as relevant mitigation, and misapprehended the evidence by overstating the time between the sexual assault and the homicide.

Given the offender's reduced moral culpability, lack of record, guilty plea, trauma history, and treatment needs, the original four-year penitentiary sentence was unfit.

The appeal was allowed and the sentence was reduced to time served with probation.

The appellant appealed judgments regarding custody, access, child support, and property division, as well as orders preserving a boat pending appeal.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's decisions on custody, access, or the imputation of income for child support.

The court granted minor variations to allow specific set-offs against child support arrears but otherwise upheld the trial judge's orders, including the requirement to sell the boat to satisfy arrears and costs.