Marc Rosenberg

The appellant appealed his conviction for aggravated assault and his sentence of two years less one day.

He argued the trial judge failed to adequately consider evidence supporting his claim that he was an innocent bystander and erred in relying on the identification evidence of a specific witness.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's assessment of the evidence was reasonable and supported by the record.

The sentence appeal was also dismissed, as the unprovoked, racially motivated, and gang-related machete attack warranted the sentence imposed.

The appellant appealed his conviction for sexual interference.

The Court of Appeal found that the trial judge misdirected the jury by instructing them that prior consistent statements could be used to bolster the complainant's credibility, despite there being no allegation of recent fabrication.

The Court declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code because the jury clearly had concerns about the complainant's credibility.

The appeal was allowed and a new trial was ordered on the charge of sexual interference, restricted to the allegations of digital penetration.

The appellant appealed a decision regarding the issuance and execution of a search warrant for records.

The Court of Appeal dismissed the appeal, finding that the conditions imposed on the warrant's execution were sufficient and that the appellant failed to show a section 8 Charter violation affecting the issuing judge's jurisdiction.

The Court left open the possibility for the appellant to argue at trial that certain documents are inadmissible due to common-law privilege or a section 7 Charter violation.

The appellant appealed an order dismissing its motion to set off amounts it owed to the respondent against amounts the respondent owed to it.

The respondent's insurer had fully indemnified the respondent for its property losses and claimed the amount owed by the appellant through subrogation.

The Court of Appeal dismissed the appeal, affirming that amounts owed by an insured to a creditor cannot be set off against amounts owed by the creditor to the insured because, due to subrogation, the claims do not exist in the same right.

The appellant sign companies challenged a municipal by-law that imposed an annual fee on third-party billboards and capped the total number of such signs.

The appellants argued the fee was an ultra vires indirect tax and the cap violated their freedom of expression under the Charter.

The Court of Appeal upheld the by-law, finding that the annual fee was a valid regulatory fee authorized by the Municipal Act, as it defrayed the costs of the municipality's sign section.

The Court also held that while the cap on billboards infringed freedom of expression, it was saved under section 1 of the Charter as a reasonable limit to protect the city's urban plan and streetscape.

The appellant appealed an order refusing to set aside a default judgment signed by the Registrar.

The Court of Appeal found that the Registrar lacked jurisdiction to sign the default judgment under Rule 19.04 because the claim for 'approximately $450,000' in damages for conversion and fraud was not a liquidated demand.

The default judgment was set aside with leave for the respondent to proceed before a judge under Rule 19.05.

However, the court refused to set aside the noting of pleadings closed due to the appellant's intentional refusal to defend.

The appellant landlord sued the respondent, a competing landlord, for inducing breach of contract after a tenant abandoned the appellant's building and signed a new lease with the respondent.

The tenant had previously threatened to terminate its lease due to the appellant renting space to an abortion clinic.

The Court of Appeal upheld the summary judgment dismissing the action, finding no genuine issue for trial because the evidence showed the tenant had already decided to terminate its lease before any contact with the respondent.

The appellants, former civilian employees of the police force, alleged they agreed to transfer to the respondent's employment based on a pre-employment representation that their terms and conditions would remain the same.

The motions judge dismissed their action, holding under the Weber doctrine that the dispute arose out of a collective agreement and was subject to exclusive arbitral jurisdiction.

The Court of Appeal allowed the appeal, finding that a pre-employment agreement does not necessarily arise out of the collective agreement, and therefore the court may have jurisdiction.

The appellant appealed a trial judgment finding it had made a false representation of fact when calling on a letter of credit.

The trial judge found the appellant called the letter of credit to replace it with cash as a security deposit, rather than for arrears owing.

The Court of Appeal allowed the appeal, holding that the trial judge's finding was unreasonable and contrary to the evidence, which established the respondent bank knew the letter of credit was obtained to satisfy a security deposit requirement.

The action was dismissed.

The appellants appealed their convictions for first degree murder.

The Crown's case relied heavily on eyewitness identification, including testimony from unsavoury witnesses.

The appellants argued that the verdict against one of them was unreasonable, and that the trial judge erred in his instructions to the jury regarding the assessment of a witness's credibility, the application of the 'might reasonably be true' test, and the definition of reasonable doubt.

The Court of Appeal found that the verdict was not unreasonable given the confirmatory evidence available.

The Court also held that the trial judge's jury instructions, while not perfect in light of subsequent jurisprudence, did not constitute reversible error.

The appeals were dismissed.

The appellants appealed the dismissal of their action for battery and breach of good faith against their insurer and an independent chiropractor.

The appellant alleged she suffered a vertebrobasilar artery injury due to an unconsented procedure during an independent chiropractic examination arranged by her insurer.

The Court of Appeal upheld the trial judge's finding that the appellant failed to prove the chiropractor performed the alleged procedure.

The Court also found that the appellant had impliedly consented to the examination by attending without objection, and that the insurer's failure to inform her she could refuse attendance did not vitiate this consent or constitute a breach of good faith.

The appellants, secured creditors of a bankrupt company, sought to amend their statement of claim in an Ontario action to allege informal liquidation and improvident realization by the respondent bank.

The respondent argued these issues were res judicata due to a prior Quebec court decision involving another creditor, in which the appellants had intervened.

The Court of Appeal held that the appellants were privies to the plaintiff in the Quebec action due to their active involvement and shared interest.

Therefore, issue estoppel applied, and the appellants were bound by the Quebec court's findings.

The appeal was dismissed, the cross-appeal allowed, and the motion to amend the statement of claim was dismissed.

The respondent's husband failed to pay premiums on a term life insurance policy, causing it to lapse before his death.

The respondent sought relief from forfeiture under section 98 of the Courts of Justice Act to recover the death benefit.

The applications judge granted the relief.

On appeal, the Court of Appeal held that section 98 is not available to revive a lapsed term life insurance policy, as the failure to pay premiums does not constitute a penalty or forfeiture, but rather a simple failure to pay for ongoing coverage.

The appeal was allowed and the application dismissed.

Following further written representations on costs and funds in court, the Court of Appeal amended its order in a commercial appeal.

The court directed that funds paid by the appellant on account of land transfer tax relating to a registered instrument be released from prior orders and paid to the appellant.

The remaining issues of costs and the balance of money in court were left to the assessment officer, with the remaining funds to stay in court pending a final order of assessment.

The respondent moved to quash an appeal from an order dismissing a rule 21.01(1)(b) motion to strike a same-sex former partner's spousal support claim.

The underlying action involved a support claim advanced after a long same-sex relationship ended before the legislative amendment to s. 29 of the Family Law Act extending spousal support rights to same-sex couples.

The Court of Appeal held that an order dismissing a motion to strike for failure to disclose a reasonable cause of action is interlocutory, regardless of the forcefulness of the motion judge's reasons, because the substantive rights remain to be determined at trial.

The appeal therefore lay to the Divisional Court with leave, not to the Court of Appeal, and was quashed with costs.

The appellant appealed an order staying her main action after she had signed a release in settling an earlier negligence action against one participant in a dental implant procedure.

In the subsequent action against another dentist and her former lawyer, both defendants commenced third party proceedings against the settling defendant, who then obtained a stay of both the third party proceedings and the main action as an abuse of process.

The Court of Appeal held there was no proper basis to stay the main action, particularly where any reliance on the release by non-parties would require adjudication of the privity exception discussed in Fraser River.

The appeal was allowed, the stay of the main action was set aside, and the appellant was held to her undertaking not to pursue claims that could trigger contribution or indemnity claims against the released party.

The appellant challenged an order refusing to dismiss or stay an action against the federal Crown arising from alleged interference with an immigration consulting business conducted outside Ontario.

The court interpreted s. 21(1) of the Crown Liability and Proceedings Act and held that the requirement that the claim arise in the province applies to both para. (a) and para. (b), including superior courts in provinces without county or district courts.

Relying on the French version of the provision and the legislative history, the court concluded that Ontario lacked jurisdiction because the claims did not arise in Ontario.

The appeal was allowed, the action was dismissed without prejudice to proceeding in Federal Court, and no costs were awarded.

The appellant challenged an order striking its amended statement of claim alleging that brand-name pharmaceutical manufacturers and a related generic seller marketed pseudo-generic drugs through misleading origin representations and anti-competitive pricing practices.

The Court of Appeal held that the pleading could support a claim under s. 52 of the Competition Act, as well as related tort claims for unlawful interference with economic relations and conspiracy, because the alleged false statement of origin could have been made to promote a business interest and in a material respect.

The court agreed, however, that the double ticketing claim under s. 54 of the Competition Act and the Business Practices Act allegations were not viable on the pleaded facts.

The court also held that it was not plain and obvious that the Food and Drugs Act claim against the generic seller must fail.

The appeal was allowed in part with costs to the appellant.

This was an appeal, with leave, from a costs order arising out of summary judgment and related motions in ongoing litigation involving a counterclaim.

The court declined to interfere with the motions judge’s award of solicitor-and-client costs and with the allocation of costs, finding those determinations were within the judge’s discretion and supported by the record.

However, the court varied the order respecting the costs of the action by holding that two respondents whose litigation with the appellant remained ongoing should not receive those costs immediately, while another respondent was entitled to its costs of the action subject to careful assessment to avoid double-counting.

The court also held that costs payable to the appellant should be payable now on a party-and-party basis rather than in the cause.

The appellant appealed a second degree murder conviction arising from a fatal stabbing in an apartment where multiple persons were present, including a witness with a motive to deflect blame.

The Crown conceded several material jury charge errors, including failure to give an adequate Vetrovec warning, misdirection on after-the-fact conduct, mischaracterization of an alternative suspect’s violent record, and inadequate instructions on intoxication and the manslaughter alternative.

The Court of Appeal held the errors were serious and declined to apply the curative proviso because it could not conclude the verdict would inevitably have been the same.

The court also stated that protected statements made during a mental assessment under s. 672.21 of the Criminal Code may be used only on credibility and not as positive evidence of guilt.

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