Marc Rosenberg

The appellants appealed a trial judgment awarding the respondent 6.5 months' notice for wrongful dismissal after 11 months of employment.

The appellants argued that the respondent's retention of $2,780 from a licensing fund constituted just cause for dismissal, that she had received prior notice of termination, and that the notice period was inordinately high.

The Court of Appeal dismissed the appeal, finding that the single act of retaining funds did not amount to just cause in context, that the prior events did not constitute legal notice, and that the notice period, while on the high side, was within the acceptable range given the respondent was induced to leave secure employment.

Following a fatal motor vehicle accident caused by an uninsured driver, a dispute arose between two insurers over the priority of their respective policies in funding the settlement.

The motions judge held that the driver's State Farm Fire umbrella policy, which included an uninsured motorist option, had to respond before the passenger's Royal Insurance O.E.F. 44 family protection endorsement.

The Court of Appeal allowed the appeal, finding that the umbrella policy was not a motor vehicle liability policy under the Insurance Act and was explicitly excess insurance.

Therefore, the passenger's O.E.F. 44 endorsement had to be exhausted before recourse could be made to the umbrella policy.

The young person appealed his conviction and sentence for an offence related to a stolen van.

He argued that his acquittal for theft was inconsistent with his conviction for possession.

The Court of Appeal dismissed the conviction appeal, finding the trial judge erred in law by failing to consider joint enterprise for the theft, rather than making inconsistent findings of fact.

The sentence appeal was also dismissed, as the young person committed the offence while on probation, had a prior record, and committed a further offence while awaiting sentence, justifying secure custody.

The appellant was convicted of first degree murder after the deceased was shot and dismembered.

The appellant appealed on several grounds, including the trial judge's refusal to direct a verdict of acquittal on first degree murder, the admission of his criminal record, and the trial judge's decision to provide the jury with a written copy of part of the jury instructions.

The Court of Appeal dismissed the appeal, finding that after-the-fact conduct was relevant to planning and deliberation, the errors regarding the criminal record did not prejudice the appellant, and the provision of written jury instructions was appropriate and did not result in prejudice.

The appellant purchaser entered into an agreement to buy a parcel of land from the respondent vendor.

The vendor's predecessor in title had obtained a consent to sever abutting lands, conveyed the severed lands to herself, and subsequently conveyed the remaining lands to the vendor.

The purchaser requisitioned the title, arguing the conveyance to the vendor violated the subdivision control provisions of the Planning Act because the predecessor still owned the abutting lands at the time of the conveyance.

The Court of Appeal agreed, holding that the exception in s. 50(6) of the Planning Act only applies if the remaining part is conveyed before the consented part.

Since the consented part was conveyed first, the exception did not apply, and the conveyance to the vendor violated the Act.

The Crown appealed a 30-day conditional sentence imposed on the respondent for two counts of breach of probation.

The respondent, a paedophile with a major mental illness and borderline normal intelligence, had breached a probation order by communicating with young boys.

The trial judge imposed a short conditional sentence to account for pre-sentence custody and to facilitate the respondent's reintegration, including finding a residence and resuming medication.

The Court of Appeal dismissed the appeal, finding no error in principle and deferring to the trial judge's assessment of this highly unusual and difficult case.

The appellant appealed his conviction on the basis that his roadside statement, made before he was advised of his right to counsel, was improperly admitted.

The Court of Appeal, applying its previous decision in R. v. Huff, held that the statement must be excluded from the evidence available for the Carter defence and credibility assessment.

The appeal was allowed and a new trial ordered.

The Crown appealed the refusal of trial judges to make DNA data bank orders for five adult offenders.

The Court of Appeal held that the appeal route follows the general scheme of the Criminal Code and that the standard of review is one of deference absent an error in principle.

The Court found that the DNA data bank provisions apply retrospectively to offenders still before the court after the legislation came into force.

The Court allowed the appeals, finding that the trial judges misapprehended the broad purposes of the DNA data bank, placed unreasonable emphasis on the offenders' privacy, and failed to properly weigh the offenders' criminal records and the nature of their offences.

DNA data bank orders were issued for all five offenders.

The Crown appealed a trial judge's ruling excluding similar fact evidence and the resulting severance ruling.

The trial judge had applied the test for similar fact evidence, requiring a high degree of similarity because identity was in issue.

The Court of Appeal found no error of law or jurisdiction in the trial judge's exercise of discretion to weigh the probative value against the prejudicial effect.

The appeal was dismissed.

The appellant appealed his conviction and sentence for a firearms offence.

He argued the police lacked articulable cause to detain and search him.

The Court of Appeal dismissed the conviction appeal, finding the officers had a reasonable suspicion based on a detailed and compelling tip from an identified complainant, justifying a pat-down search.

The sentence appeal was also dismissed due to the seriousness of the offence, though a stay was entered on one count due to the rule against multiple convictions.

The appellant appealed from an order dismissing his summary conviction appeal.

Under s. 839 of the Criminal Code, the appeal was restricted to questions of law alone.

The appellant argued that the summary conviction appeal judge erred in failing to find that the trial judge should have drawn adverse inferences against the complainant and investigating officer.

The Court of Appeal held this was a question of fact, not law.

The Court also rejected arguments regarding equality rights, fresh evidence, and an inappropriate question by Crown counsel during cross-examination.

The appeal was dismissed.

The appellant appealed the dismissal of his pre-trial application, which sought to litigate interlocutory rulings from the preliminary inquiry and alleged violations of s. 11(b) of the Charter and lack of disclosure.

The Court of Appeal dismissed the appeal, holding that the application judge properly exercised his discretion to dismiss the application, as these matters are ordinarily dealt with by the trial judge.

The Court directed that the matter proceed to trial as soon as possible.

The appellant appealed her sentence.

The trial judge had imposed a sentence above what the Crown suggested, stating she should go to the penitentiary for two years, without adequately considering her difficult family circumstances.

The Court of Appeal found the sentence too harsh and reduced it to time served, while upholding the trial judge's decision not to impose a conditional sentence.

The appellants appealed their convictions for performing the controlled act of dispensing eyeglasses without authorization under the Regulated Health Professions Act.

The individual appellant, an optician registered in Nova Scotia but not Ontario, sold prescription bifocals to a private investigator.

The appellants argued that the retail sale of eyeglasses to adults is not a health care service and that the controlled act of dispensing should be defined by the risk of harm.

The Court of Appeal dismissed the appeal, holding that the sale of prescription eyeglasses falls within the scope of opticianry and constitutes a health care service.

The Court further held that the plain meaning of the statute defines the controlled act, and courts are not required to engage in a risk analysis before determining if an activity is prohibited.

The appellants, a corporation and its undisclosed principal, breached an agreement to purchase land after the real estate market collapsed.

The trial judge assessed damages at the date of closing and held a third-party corporation and its principals liable on an undertaking as to damages given during an interlocutory injunction.

On appeal, the Court of Appeal upheld the damages assessment against the appellants, finding the sealed contract rule inapplicable.

However, the Court allowed the third parties' appeal, concluding that the injunction did not cause the appellants' damages, which resulted instead from the market collapse and their deliberate refusal to close.

The appellant appealed his conviction, arguing the trial judge erred in assessing credibility and improperly used his after-the-fact conduct as positive evidence of guilt.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.(D.) principles, gave cogent reasons for disbelieving the appellant, and permissibly used the after-the-fact conduct as a factor in assessing overall credibility.

The appellant appealed his conviction and sentence, arguing he received ineffective assistance of counsel at trial.

The Court of Appeal admitted fresh evidence demonstrating that trial counsel failed to call evidence that could have explained inaccuracies in the appellant's police statement.

The trial judge had used the statement to undermine the appellant's credibility.

The Court found that the ineffective assistance occasioned a miscarriage of justice.

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

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

The Court of Appeal found the verdict unreasonable because the trial judge's reasons indicated the appellant only acted to aid the co-accused after the co-accused had already abandoned the attempt to take possession of the drugs.

The appeal was allowed and an acquittal entered.

The appellant employer appealed a trial judgment finding it liable for wrongfully dismissing the respondent employee.

The employer argued that the trial judge interfered in the conduct of the trial to such an extent that the image of judicial impartiality was destroyed.

The Court of Appeal agreed, finding that the trial judge unduly intervened by redirecting lines of questioning, extensively cross-examining the employer's witnesses, and requiring the production of a policy manual that was not part of the pleadings.

The appeal was allowed and a new trial was ordered.

The plaintiff commenced a negligence action for property damage caused by a fire shortly before the expiry of the limitation period.

During discoveries, it was revealed that the proper plaintiff was the plaintiff's corporation, not the plaintiff personally.

The plaintiff successfully moved to amend the statement of claim to substitute the corporation as the plaintiff.

The defendant appealed, arguing the amendment should not be permitted after the limitation period expired.

The Court of Appeal dismissed the appeal, holding that Rule 5.04(2) grants the court discretion to substitute a party after a limitation period expires, provided there is no non-compensable prejudice to the defendant and special circumstances exist.