Marc Rosenberg

The appellants challenged search warrants issued under the Mutual Legal Assistance in Criminal Matters Act in aid of foreign money laundering investigations, arguing that once improperly obtained material was excised, the warrants lacked sufficient foundation and should also be quashed for abuse of process.

The court held that review of the warrants was governed by the Garofoli standard, not a de novo reconsideration of whether the reviewing judge would himself or herself have issued the warrants.

Applying that standard, the remaining information was sufficient and also established that an evidence-gathering order under s. 18 would not have been appropriate.

The court further held that allegations concerning Charter breaches and investigative abuse were more properly addressed at the s. 15 hearing on whether seized materials should be sent to the requesting states.

The appeal was dismissed.

The appellants challenged the trial judgment on the basis that the trial judge improperly relied on res ipsa loquitur and erred in finding that a fire was probably caused by pyrolysis arising from the placement of a plywood bulkhead near an exhaust pipe.

The court held that, on the expert and other evidence, it was open to the trial judge to exclude electrical fault and find on a balance of probabilities that pyrolysis was the most likely cause.

The court further held that the construction left exposed plywood in close proximity to the exhaust pipe, contrary to recommendations and creating a risk of fire, supporting negligence and breach of the implied warranty under the Sale of Goods Act.

The appeals by Lloyd’s and Hughes were dismissed, and the plaintiffs’ cross-appeal against Spartan was also dismissed.

The appellant appealed a summary judgment on a dishonoured cheque issued for delivered satellite equipment, arguing that factual disputes, legal set-off, equitable set-off, and alleged misrepresentation required a trial.

The Court of Appeal held there was no genuine issue of material fact on the respondent's claim, and that the appellant's counterclaim for commissions, rebates and warranty credits was not pleaded as a liquidated or ascertainable debt capable of legal set-off.

The court further held that equitable set-off does not apply to bills of exchange, including cheques, and rejected the alleged misrepresentation argument as not properly pleaded as a defence to the validity of the cheque.

The appeal was dismissed, but enforcement of the summary judgment was stayed on terms pending determination of the counterclaim.

In an insolvency appeal arising from a consumer proposal, the appellant bank challenged an order holding that an approved proposal compromised the unsecured portion of its secured claim and that a side agreement with the debtors was unenforceable.

The court held that, because the bank did not seek revision of the proposed assessment of its security, the approved proposal was binding on all unsecured claims under s.62(2)(a) of the Bankruptcy and Insolvency Act.

The court further held that equality among creditors is a basic insolvency principle and that a secret side agreement violating that equality amounts to a fraud on other creditors and is unenforceable.

The appeal was dismissed, Mr. Farmer was to be removed as an inspector, and the order was amended by consent to remove any reference to misconduct by the trustee.

The appellant challenged convictions arising from two closely similar bank robberies, arguing that the verdicts were unreasonable and that the trial judge erred in his treatment of identification, forensic hair evidence, and similar fact reasoning.

The court held that the eyewitness identification evidence on the Burlington robbery, together with the appellant's association with the getaway vehicle and limited after-the-fact conduct evidence, supported the verdict.

Although the trial judge used an anchoring rather than pooling approach to similar fact evidence, the court found no prejudice because the allegedly exculpatory Hamilton evidence did not materially undermine identification of the appellant.

The appeal from conviction and sentence was dismissed.

The appellants sought a new trial, alleging errors in the trial judge's reasons in a fraudulent misrepresentation action arising from a land purchase.

The court held there was ample evidence supporting each alternative basis on which the trial judge relied and that it was open to the trial judge to conclude the appellants failed to prove fraudulent representations.

The appellate court found no palpable and overriding error in the treatment of the evidence, including evidence concerning land value and the alleged representation.

The appeal was dismissed with costs on a solicitor and client basis.

The appellant challenged the trial judge’s conclusion that a purported purchase and sale transaction was not genuine and therefore was not bona fide for the purposes of s. 70 of the Registry Act.

The Court of Appeal held that the trial judge found the transaction to be a sham and that there was ample evidence supporting that conclusion, including back-dated documents, lack of due diligence, and deficiencies in the evidence.

A cross-appeal concerning slander of title, punitive damages, and costs was also dismissed, although leave to appeal costs was granted.

The appeal was dismissed with costs, except that a non-participating respondent was awarded no costs.

The appellants moved to stay a post-trial order directing that money paid into court by the plaintiff as security for costs be paid out to the respondent's solicitors in trust.

The court held that a successful plaintiff at trial is entitled to the return of money posted as security for costs notwithstanding an appeal and rejected the attempt to preserve the security indirectly pending appeal.

The motion to stay was dismissed with costs.

The respondent's cross-motion to strike a ground in the supplementary notice of appeal was dismissed as moot without costs.

The appellant appealed robbery convictions arising from a single incident and argued that the verdict was unreasonable, that the trial judge erred in assessing eyewitness identification evidence, and that she improperly treated a defence witness's evidence with caution.

The court held that the trial judge was alive to the dangers of eyewitness identification, carefully scrutinized the weaknesses in the Crown evidence, and was entitled to rely on one complainant's identification based on prior familiarity and close observation during the offence.

The court also held that it was open to the trial judge to approach the evidence of a defence witness, who faced an outstanding charge on the same matter, with caution because of the obvious potential for self-interest.

The appeal was dismissed.

The appellant prosecutor appealed from the dismissal of an application for certiorari and mandamus after a justice of the peace quashed an information charging an employer with failure to report a workplace accident within three days.

The central issue was whether the reporting breach under s. 21(1) of the Workplace Safety and Insurance Act, 1997 was a continuing offence for limitation purposes under s. 76(1) of the Provincial Offences Act.

The court held that the statutory scheme emphasizes the employer's continuing duty to report, not merely timely reporting, and that the offence continues until the employer complies.

The contrary interpretation would undermine compliance and create an incentive to avoid reporting.

The appeal was allowed, certiorari was granted, and mandamus was unnecessary because the parties had settled.

The appellant appealed convictions on multiple historical sexual offence counts arising from allegations by four complainants.

The court held that the jury instructions created a reasonable likelihood that the jury misapprehended the reasonable doubt standard by suggesting conviction could follow either proof beyond a reasonable doubt or some lesser level of satisfaction.

The court also held that the trial judge erred in refusing to entertain the self-represented appellant's attempt to obtain child welfare records, and failed in the duty to provide reasonable assistance to an unrepresented accused.

The appeal from conviction was allowed, the convictions and conditional stays were set aside, and a new trial was ordered.

The accused appealed convictions for multiple sexual assaults and sexual exploitation, arguing improper Crown cross-examination and inadequacy in the jury charge.

The court held that one line of cross-examination was unfair but caused no prejudice, and that the impugned cross-examination cumulatively did not deprive the accused of a fair trial.

The Crown separately appealed a conditional sentence as unfit for repeated sexual assaults against a vulnerable young complainant in a relationship of trust.

Although the court found an error in principle and concluded a conditional sentence should not have been imposed, it dismissed the sentence appeal after granting leave because the sentence had largely been served under strict conditions and incarceration at that stage would not be in the interests of justice.

The appellant appealed his conviction for criminal negligence causing death and sought leave to appeal a three-year penitentiary sentence with an eight-year driving prohibition arising from a fatal dirt bike collision.

The principal trial issue was the identity of the driver.

The court rejected challenges to habit evidence, expert reconstruction evidence, demonstration evidence, and hearsay use during cross-examination, holding that any concerns were adequately addressed by the trial judge’s charge and that no prejudice was shown.

The court also rejected the unreasonable verdict argument.

Leave to appeal sentence was granted, but the sentence appeal was dismissed as no error in principle was established and the sentence was fit.

The appellant challenged a finding of incapacity to manage property on the basis that repeated defects in the psychiatric facility's leave of absence procedure meant he was no longer a patient under the Mental Health Act.

The court held that the appeal was not moot despite the later discharge and issuance of a notice of continuance, because the validity of the continuance depended on the validity of the underlying certificate.

Interpreting the statutory definition of patient flexibly and purposively, the court concluded that the procedural irregularities in granting leaves of absence did not amount to a discharge in fact or law.

The original certificate of incapacity therefore remained valid, and the appeal was dismissed without costs.

Dans cet appel en diffamation portant sur un documentaire télévisé, la Cour a statué que l'avis écrit exigé par le par. 5(1) de la Loi sur la diffamation doit, avant l'introduction de l'action, préciser suffisamment les propos diffamatoires reprochés pour permettre au défendeur de corriger, rétracter, justifier ou atténuer.

La lettre initiale de la demanderesse, qui alléguait de façon générale que l'émission était diffamatoire, était trop vague pour satisfaire à cette exigence à l'égard du radiodiffuseur et de la productrice.

Quant aux autres défendeurs, l'avis détaillé leur a été signifié seulement après la délivrance de la déclaration, ce qui constituait également un défaut fatal.

L'appel principal a été accueilli, l'appel incident rejeté, et aucune ordonnance n'a été rendue quant aux frais.

The appellants challenged a motion decision permitting a broadcast libel action to proceed despite an allegedly deficient pre-action notice.

The court held that s. 5(1) of the Libel and Slander Act requires written notice before commencement of the action and that failure to comply is an absolute bar, not a mere irregularity.

Applying the governing notice standard, the court found the plaintiff's initial letter too general to specify the matter complained of, because it did not identify with sufficient clarity which statements in the broadcast were alleged to be libellous.

The appeal was allowed, the cross-appeal was dismissed, and the entire action was barred against all defendants.

The appellant appealed a second degree murder conviction arising from a fatal confrontation in his residence, where he asserted self-defence and the trial judge left provocation with the jury.

The Court of Appeal held that the self-defence charge was adequate, but found reversible error in the response to the jury's question on provocation and in the treatment of after-the-fact conduct because the jury was not properly instructed on innocent explanations and conduct consistent with innocence.

The court further held that Crown counsel's cross-examination was repeatedly improper, including questioning on silence, disclosure, and criminal record details, and that the curative instructions did not adequately remove the prejudice.

Considering these errors cumulatively, the court concluded the appellant did not receive a fair trial and ordered a new trial.

In a motor vehicle tort action, the appellant sought an order compelling his automobile insurer to fund and provide an independent defence after the insurer denied coverage on the basis of alleged policy and statutory breaches, including conduct surrounding impaired driving and failure to report the accident.

The court held that no immutable rule should govern whether the duty to defend is suspended where breach of condition is alleged; the issue must be resolved contextually, having regard to the strength of the parties' positions and the need to furnish a separate defence.

On the facts, the alleged breaches were clear and uncontested, no evidentiary basis was advanced for estoppel or relief from forfeiture, and the insurer had already been added as a statutory third party under s. 258(14) of the Insurance Act and was defending liability and quantum in terms aligned with the insured's interests.

The appeal was dismissed with costs.

The appellant appealed a conviction for second degree murder following a jury trial.

The Court of Appeal held that the trial judge failed to adequately instruct the jury on intent and on the cumulative effect of intoxication, provocation, and excessive force in self-defence.

The charge improperly compartmentalized the defences and referred to them as alternative defences, creating a risk that the jury would not appreciate their combined effect.

The court was not satisfied that no substantial wrong or miscarriage of justice had occurred.

The conviction was set aside and a new trial on second degree murder was ordered.

Criminal conviction appeal arising from a taxi robbery prosecution in which the police obtained an inculpatory statement by threatening to "trash" the accused's mother's home during execution of a search warrant.

The court held that police conduct rendering a statement involuntary at common law infringes s. 7 of the Charter, and that the resulting oral statement and diagram were conscriptive evidence that had to be excluded under s. 24(2).

The court exercised its discretion to allow the accused to advance the Charter argument for the first time on appeal because voluntariness had been fully litigated at trial and the record was complete.

The court further held that the St. Lawrence rule must be modified to recognize a discretion to exclude involuntary confessions despite confirmation by real evidence, with admission justified only in highly exceptional circumstances.

Without the confession, the remaining evidence could not support conviction, so the convictions were quashed and acquittals entered.