Marc Rosenberg

The appellant appealed a decision finding no conflict between a municipal by-law imposing development charges on commercial/industrial developments and a prior financing agreement.

The Court of Appeal dismissed the appeal, holding that the agreement's silence regarding non-residential development charges did not create a conflict with the by-law under section 14(4) of the Development Charges Act.

The court affirmed that the by-law and the agreement could stand together.

The appellant was convicted of aggravated assault, using a firearm, and possession of a prohibited weapon following his fourth trial.

He appealed, arguing the trial judge erred in admitting an overheard utterance to his lawyer ('I had a gun, but I didn't point it') without context, and in instructing the jury that his failure to ask why he was being arrested could be used to assess his guilt.

The Court of Appeal agreed, finding the utterance's meaning was too speculative and its prejudicial effect outweighed its probative value.

The court also found the trial judge impermissibly undermined the appellant's right to silence.

Given this would be the appellant's fifth trial, the court entered a stay of proceedings.

A probationary employee was discharged shortly after returning from maternity leave and filed a grievance alleging discrimination based on family status.

The collective agreement precluded probationary employees from grieving a discharge, but the board of arbitration found it had jurisdiction under the Labour Relations Act to apply the Human Rights Code.

The Divisional Court quashed this decision.

On appeal, the Court of Appeal allowed the appeal, holding that the Employment Standards Act prohibits dismissing an employee for taking pregnancy leave and makes this prohibition enforceable under the collective agreement, prevailing over any conflicting terms.

The appellant operated an escort agency, arranging dates between male clients and female escorts, and keeping one-third of the fee.

She was convicted of living on the avails of prostitution, attempting to procure, and breach of probation.

On appeal, the Court of Appeal upheld the conviction for living on the avails, finding her business relationship with the escorts was parasitic.

The court upheld one procuring conviction but set aside another, and quashed the breach of probation conviction.

The sentence was varied from ten months' imprisonment to a $10,000 fine.

The appellant administrative body appealed a Divisional Court order quashing its refusal to decline jurisdiction over a human rights complaint challenging the recitation of the Lord's Prayer during the daily opening exercise of the Legislative Assembly.

The Court of Appeal held that the Assembly's Standing Orders and acts done pursuant to them fall within the constitutionally protected sphere of parliamentary privilege concerning exclusive control over internal proceedings.

Applying the parliamentary privilege framework from Supreme Court authority, the court held that once the category of privilege is established, neither courts nor administrative bodies may review particular exercises within that category for compliance with human rights legislation.

The court also held that the Commission's refusal to decline jurisdiction was a reviewable decision attracting correctness review.

Appeal dismissed without costs.

The appellant appealed a judgment regarding the prepayment of a mortgage.

The Court of Appeal found that the respondent was entitled to prepay the mortgage without notice or bonus as it was not in default.

However, the respondent was not relieved of the obligation to make proper tender of the principal and interest.

The appeal was allowed in part to award the appellant additional interest from the date of attempted prepayment to the date of proper tender.

The appellant mother appealed a trial judgment awarding custody of the child to the respondent father.

She argued that the trial judge's comments in chambers and during the trial created a reasonable apprehension of bias and prejudgment.

The Court of Appeal dismissed the appeal, finding that while some comments were unfortunate, a reasonable person would not conclude the trial judge had prejudged the issue.

The Court also upheld the trial judge's finding that it was in the best interests of the child for the father to have custody, noting the decision was fully supported by the evidence and the factors in section 24 of the Children's Law Reform Act.

The appellant appealed a judgment dismissing his personal injury action following a jury verdict.

The jury found that the motor vehicle accident did not cause or materially contribute to any of the appellant's injuries, despite assessing damages at $25,000 for pain and suffering.

The appellant argued the verdict was perverse and that the trial judge erred in evidentiary rulings regarding expert witnesses.

The Court of Appeal dismissed the appeal, finding that the jury's verdict was reasonable given the central issue of the appellant's credibility and the defendants' position at trial.

The court also found no reversible error in the trial judge's evidentiary rulings.

The appellant appealed a decision dismissing his application to vary spousal and child support obligations.

He sought to reduce his support obligations to zero, arguing a material change in circumstances due to an inability to work.

The trial judge found he was working intermittently for cash and was capable of working in a supervisory capacity in the construction industry, imputing an annual income of $40,000.

The Court of Appeal found no error in the trial judge's assessment of the evidence, including expert reports, and dismissed the appeal.

The respondent, a licensed chiropractor, pleaded guilty to nine counts of sexual assault against his female patients over a ten-year period.

The trial judge imposed an eighteen-month conditional sentence.

The Crown appealed the sentence.

The Court of Appeal held that the conditional sentence failed to adequately reflect the principles of general deterrence and denunciation given the gravity of the offences and the gross breach of trust.

The appeal was allowed, and the conditional sentence was replaced with a nine-month term of imprisonment.

The appellant appealed an order providing for child support in accordance with the Federal Child Support Guidelines and costs on a solicitor and client basis.

The motions judge found a material change in circumstances since the signing of the separation agreement due to the appellant's increased income.

The Court of Appeal dismissed the appeal, finding that the motions judge had jurisdiction to make a final order on the motion, the finding of a material change in circumstances was supported by the evidence, and the costs order was justified due to the appellant's failure to disclose his financial affairs.

The appellant appealed his conviction on the basis that the trial judge's credibility findings regarding an eight-year-old child witness were unreasonable.

The Court of Appeal found profound internal inconsistencies in the child's evidence that went to the core of the alleged offence, which the trial judge failed to reconcile.

The Court held that the trial judge erred by lowering the standard of proof due to the complainant's age.

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

The appellant appealed his conviction, seeking to withdraw his guilty pleas and introduce fresh evidence of his innocence.

The Court of Appeal found that the pleas were voluntary and unequivocal, and that his request to withdraw them was a calculated scheme to manipulate the system to obtain bail over the holidays.

The fresh evidence of innocence was rejected as incredible under the Palmer test.

The appeal from conviction was dismissed.

The appellant challenged a summary judgment order that had dismissed most of his claims arising from an alleged agreement concerning the purchase, development, and later sale of a Toronto property.

The Court of Appeal held that the dispute turned on conflicting evidence and the central question of good faith, which required findings of fact, weighing of evidence, and implicit credibility determinations.

Those issues could not properly be resolved on a summary judgment motion.

The appeal was allowed, the cross-appeal dismissed, and the summary judgment motion dismissed.

The drawee bank certified a forged cheque drawn on its customer's account.

The collecting bank accepted the cheque for deposit into an account with a similar name to the payee, without obtaining an endorsement.

The drawee bank sued the collecting bank for the unrecovered proceeds, arguing the collecting bank was liable under the Canadian Payments Association Clearing Rules for failing to provide the missing endorsement.

The Court of Appeal allowed the collecting bank's appeal, holding that the fictitious payee rule in s. 20(5) of the Bills of Exchange Act applied, making the cheque a bearer instrument that could be negotiated by delivery alone.

The Court further held that the Bills of Exchange Act prevails over the CPA Clearing Rules.

The appellant was found not guilty of second-degree murder by reason of insanity in 1978.

Over the years, he gained increased access to the community but was returned to in-patient status after testing positive for drugs.

The Ontario Review Board ordered his detention with only staff-accompanied access to the community.

The Court of Appeal allowed the appeal, finding the Board erred by shifting the focus from public protection to punishing the appellant for drug use.

The Court held the evidence did not establish the appellant was a significant threat to public safety and ordered an absolute discharge.

The appellant appealed his sentence for possession of stolen property and other offences.

At trial, the Crown sought a 12-month sentence, but the trial judge imposed a significantly longer sentence without providing reasons.

The Court of Appeal noted the appellant's youth, early guilty plea, history of childhood abuse, and pretrial custody.

The appeal was allowed, and the sentence was varied to 18 months' imprisonment, accomplished by reducing the sentence for possession of stolen property to five months concurrent.

The appellants, a corporation and its chairman, appealed a Divisional Court order permitting the respondent to amend its statement of claim.

The amendments sought to add claims for intentional interference with economic relations and conspiracy to injure against the chairman personally.

The Court of Appeal allowed the appeal in part.

It struck the claim for intentional interference because the respondent failed to plead the requisite unlawful means.

However, the Court permitted the conspiracy to injure claim to proceed, holding that it was not plain and obvious at the pleadings stage that the Said v. Butt exception—which protects corporate officers acting bona fide in the company's interests—would immunize the chairman from personal liability.

A motion was brought to determine the proper appellate jurisdiction for appeals and cross-appeals arising from judgments on construction lien and breach of trust claims under the Construction Lien Act.

The Court of Appeal held that section 71(1) of the Act applies to both lien claims and trust claims, meaning all such appeals lie to the Divisional Court.

The motion was granted and the appeals were transferred to the Divisional Court.

The appellant was convicted of manslaughter and sentenced to six years' imprisonment after punching the deceased once outside a bar, causing the deceased to fall and suffer fatal head injuries.

On appeal, the appellant argued the trial judge erred in his jury instructions regarding self-defence, provocation, and after-the-fact conduct.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the jury charge and applying the curative proviso regarding the omission of a section 37 self-defence instruction.

The sentence appeal was also dismissed as the six-year term was within the appropriate range.