Marc Rosenberg

The appellant appealed his conviction, arguing the verdict was unreasonable due to discrepancies in the victim's description, specifically the failure to notice a cleft chin.

The Court of Appeal dismissed the appeal, finding that the circumstantial evidence implicated the appellant and the victim's description was similar to the appellant's appearance.

The court concluded that the failure to notice a cleft chin was not an exculpatory dissimilarity and the verdict was not unreasonable.

The appellant appealed a conviction involving a forged endorsement on a cheque.

The central issue was whether the named payee was a non-existent entity or merely a misdescription.

The Court of Appeal upheld the trial judge's finding of fact that it was a misdescription, meaning the cheque was not payable to bearer under the Bills of Exchange Act.

Consequently, the forged endorsement was a material addition to a genuine document, and the appeal was dismissed.

The Crown appealed sentence, arguing that a conditional sentence was unfit given the seriousness of the offence and the need for denunciation.

The court held that a community-based sentence should not originally have been imposed, but declined to incarcerate the respondent because of the passage of time, hardship, remorse, rehabilitation, employment, family support, and ongoing community service.

Leave to appeal sentence was granted and the conditional sentence was increased to two years less one day, with the curfew extended for the full duration of the sentence.

The probation order was left undisturbed.

The appellants appealed their convictions for conspiracy to import drugs, importing, and attempted possession for the purpose of trafficking.

The Court of Appeal dismissed the appeals against the conspiracy and importation convictions, finding sufficient evidence to support the trial judge's conclusions and rejecting arguments regarding the misuse of disclosure and directed verdicts.

However, the Court applied the Kienapple rule to stay the convictions for attempted possession for the purpose of trafficking, as a single act underlay the multiple charges.

The court considered written submissions from the parties regarding costs following an appeal.

The court decided to vary its previous reasons to provide that the appellant is entitled to one third of the costs of the appeal, rather than full costs.

In supplementary reasons regarding costs, the Court of Appeal considered offers to settle made by both parties.

Despite the appellant's success on the appeal, the court ordered no costs of the appeal because the respondent's offer to settle was almost identical to the appeal result.

For the application, considering the appellant's misconduct and the various offers, the court ordered no costs to either party up to November 1, 1999, and party-and-party costs to the respondent thereafter.

The Ontario Human Rights Commission appealed a Divisional Court decision upholding a board of inquiry's pre-hearing disclosure order.

The board had ordered the complainant, who alleged discrimination based on a physical handicap, to produce various medical, workers' compensation, and pension files, as well as a list of all other treating medical practitioners.

The Court of Appeal held that the board had the authority to order the complainant to provide an affidavit of documents for the specified files, allowing for claims of privilege and irrelevance to be adjudicated.

However, the Court found that the board exceeded its jurisdiction by ordering the complainant to provide a list of all other treating doctors and their treatments without any relevance screening, as this unjustifiably infringed her privacy rights.

The appeal was allowed in part to set aside that specific paragraph of the board's order.

The appellant sought prerogative writ relief to prohibit a Superior Court judge from proceeding with sentencing, arguing the judge lacked jurisdiction to order a psychiatric assessment.

The Court of Appeal dismissed the appeal, holding that prerogative writ relief does not lie against a Superior Court judge's decision absent a constitutional violation.

The Court further noted the application was an improper attempt to circumvent the rule against interlocutory appeals in criminal trials.

The matter was remitted for sentencing.

The appellant pleaded guilty to assaulting his former girlfriend with a machete.

Prior to sentencing, he brought a motion to strike his guilty plea, claiming he was confused and did not understand the proceedings.

The trial judge dismissed the motion, finding that the appellant comprehended the plea and inferring that his trial counsel had properly ensured he understood its nature and consequences.

The Court of Appeal upheld the trial judge's decision, noting that a guilty plea entered by a represented accused is presumed valid and the appellant failed to discharge the onus of proving otherwise.

The plaintiff, an Ontario Provincial Police officer, was injured in a motor vehicle accident while driving a police cruiser.

The driver of the other vehicle was underinsured.

The plaintiff claimed under the OPCF 44 endorsement of both her personal automobile insurance policy and the police force's fleet policy.

The issue on appeal was which insurer was required to respond first.

The Court of Appeal held that the plaintiff was an 'insured person' under the fleet policy because the cruiser was provided for her 'regular use'.

The Court found that 'regular use' does not require a personal use component.

Therefore, the fleet policy was the first loss insurance.

In supplementary reasons regarding the costs of the trial, the Court of Appeal determined that the appellant's judgment was more favourable than its November 19, 1999 offer to settle.

The offer had proposed paying the respondent $200,000 while the appellant would retain ownership of the disputed invention.

Finding no reason to depart from the rule, the Court applied the cost consequences of Rule 49.10, awarding the appellant party-and-party costs up to the date of the offer and solicitor and client costs thereafter.

The appellant, while on probation in Ontario, travelled to Cuba and assaulted his companion.

He was charged in Ontario with breach of probation.

The trial judge convicted him, and the summary conviction appeal court upheld the conviction.

On further appeal, the Court of Appeal held that probation orders bind the conduct of probationers both at home and abroad.

Applying the real and substantial link test, the Court found that Ontario had jurisdiction to try the offence because the probation order was made in Ontario and prosecuting the breach did not offend international comity.

The appeal was dismissed.

The intervener, a media outlet, brought a motion seeking limited access to a sealed affidavit to determine whether to challenge the sealing order.

The Crown opposed the motion, stating the affidavit contained confidential information pertaining to an ongoing criminal investigation.

The Court of Appeal dismissed the motion, finding that the risk of compromising the ongoing investigation outweighed the public's right to know, especially given that the sealing order was temporary and set to expire in three months.

The appellants appealed a child protection order placing the children in Crown wardship without access.

The court held there was evidence supporting the trial judge’s findings that the children were in need of protection and that one parent posed a substantial risk within the meaning of s. 37(2)(d) of the Child and Family Services Act.

The court further held the children would not be protected from that risk if returned to the appellants, even with supervision by the society.

Finding no error in the reviewing judge’s analysis, the appeal was dismissed without costs.

The husband appealed a trial decision including his early retirement incentive payments in his net family property.

He argued for the first time on appeal that the payments were a gift and should be excluded under the Family Law Act, or alternatively, that they should be pro-rated based on his years of employment during the marriage.

The Court of Appeal dismissed the appeal, finding the payments were consideration for taking early retirement, not a gift.

The court also upheld the trial judge's decision to include the full amount in the husband's net family property, as he failed to meet the onus of proving the payments were for past services.

The court further upheld the exclusion of a survivor's pension from the wife's net family property due to her health.

The appellant husband appealed a decision dismissing his application to reduce spousal support following his early retirement.

The husband argued the applications judge failed to apply the rule against double-dipping from Boston v. Boston and misapprehended the evidence regarding his income.

The Court of Appeal found that while the rule against double-dipping did not apply because the support was largely based on need, the applications judge did misapprehend the evidence regarding the husband's post-retirement income and expenses.

The appeal was allowed, and spousal support was reduced from $1,800 to $1,200 per month, indexed to the cost of living.

The appellant was convicted of sexual interference involving a young boy with learning disabilities.

He appealed the conviction, arguing the verdict was unreasonable and that Crown counsel engaged in misconduct during cross-examination and the jury address.

He also appealed his sentence of six months' imprisonment, seeking a conditional sentence.

The Court of Appeal dismissed the appeal, finding the verdict was not unreasonable and that, while some of the Crown's remarks were improper, they did not render the trial unfair.

The sentence was upheld as fit given the breach of trust.

The appellant construction company appealed the dismissal of its claims for unjust enrichment and breach of trust under the Construction Lien Act.

The appellant had sought funds from a letter of credit provided by a developer to a municipality after the developer failed to pay for constructed services.

The Court of Appeal dismissed the appeal, agreeing with the reasons of the motion judge.

The appellant appealed an order of the motions judge, arguing that the judge erred in abridging the time for service of motion materials and refusing a brief adjournment.

The Court of Appeal agreed, noting that voluminous materials were served less than 24 hours before the hearing and the appellant's counsel had another commitment.

The Court also found no urgency requiring a final determination on that date.

The appeal was allowed, the motions judge's order was set aside, and the matter was remitted for a rehearing.

The respondent, an independent contractor for the appellant, invented a valuable hinge.

The appellant had previously required the respondent to sign an Employee Technology Agreement assigning his rights to any inventions to the company, under threat of termination.

The trial judge found the agreement unenforceable due to lack of consideration and economic duress.

The Court of Appeal reversed, holding that continued employment and forbearance from dismissal constituted valid consideration.

The Court also found no economic duress, as the pressure to sign was not illegitimate given the appellant's bona fide belief in its ownership of the inventions and the respondent's opportunity to seek independent advice.

The appellant was declared the owner of the invention.