Marc Rosenberg

The appellant appealed a jury conviction for attempted murder arising from a stabbing outside a restaurant, and also appealed a sentence of seven years and four months' imprisonment.

The principal issues were the admissibility of prior-incident evidence, the adequacy of the party-liability instruction in light of a jury question about non-intervention and indirect involvement, the intent instruction, the reasonableness of the verdict, and sentence fitness.

A majority would dismiss the conviction appeal, grant leave to appeal sentence, and dismiss the sentence appeal, holding that the prior incidents were admissible contextual and motive evidence, the charge on parties and intent was adequate, and the verdict was supported by the evidence.

In dissent, one judge would allow the conviction appeal and order a new trial because the jury may have convicted on an erroneous omission-based party-liability theory.

The appellant appealed both conviction and sentence following a criminal prosecution.

The court upheld the trial judge's conclusion that the wiretap authorizations were valid, that the appellant was not “known” within the meaning of ss. 185 and 186 of the Criminal Code, and that the search warrant was properly granted.

On sentence, the respondent conceded error in principle in the trial judge's conclusion that a conditional sentence was unavailable for the offences in light of the governing Supreme Court authority.

Leave to appeal sentence was granted, the sentence appeal was allowed, and a conditional sentence with house arrest and community service conditions was imposed.

The Crown appealed an order staying criminal charges on the basis of the respondent's health and alleged inability to defend himself.

The Court of Appeal held that the evidentiary record did not establish that the respondent would probably be unable to defend himself or that the trial process would probably cause significant harm to his health.

The stay was found to be premature, with the court noting that fitness and health concerns could be revisited if they arose during trial.

The appeal was allowed and the matter was remitted for trial.

The appellants challenged the dismissal of claims arising from a mortgage life insurance denial after an elderly borrower died shortly after closing.

The court held there was no enforceable contract of insurance for the deceased because he did not meet the policy definition of an insured borrower, which imposed an age limit.

Assuming the lender could in some circumstances act as the insurer's agent, the evidence did not satisfy the stringent waiver test requiring full knowledge of rights and an unequivocal intention to abandon them.

The negligence claims also failed for lack of proof that alternative insurance would have been available and thus lack of damages.

The appellants appealed the refusal to set aside an international commercial arbitration award under the UNCITRAL Model Law as incorporated by Ontario statute.

They argued that the arbitral procedure offended public policy and that they had been unable to present their case because of limited disclosure of agreements and the absence of foreign witnesses.

The court held that the tribunal's procedure did not offend local principles of justice and fairness in a fundamental way and that the appellants had not been deprived of an adequate opportunity to present their case.

The appeal was dismissed with costs.

The appellant sought to reopen a family law appeal to vary the costs order following reasons in a child support case.

The Court of Appeal declined to reopen the appeal and clarified that its earlier statement that the paying spouse should ordinarily bear the child support litigation costs was confined to exceptional cases involving income vastly exceeding $150,000 and a huge disparity in ability to pay.

The court further held that any such approach remained subject to Rule 49 of the Rules of Civil Procedure and, where applicable, Rule 18 of the Family Law Rules, as well as the requirement that the payee spouse have acted reasonably.

The relationship between that approach and rule 24(1) of the Family Law Rules was left for another day because those rules did not apply to this case.

The appellants challenged an order transferring a statutory appeal under the Mining Act from the Mining and Lands Commissioner to the Superior Court.

The court held that a transfer under s. 107 does not enlarge the Superior Court's jurisdiction beyond the scope of the underlying s. 112 appeal, which remains confined to issues under the Mining Act.

Complaints directed at the validity of aggregate permits issued under separate legislation were matters for judicial review, if available, rather than determination in the transferred proceeding.

The appeal was allowed, the transfer order set aside, and the matter remitted to the Commissioner.

This appeal concerned the interpretation of a will where the named remainderman died before the life tenant.

The court held that the devise to the sister was incapable of taking effect within the meaning of s.27 of the Wills Act and, absent contrary intention, was swept into the residue.

Reading the will as a whole, the court found the testator intended the ultimate beneficiaries to be the sister and her heirs, and not to enlarge the widow’s interest beyond a lifetime right of occupation.

The appeal was allowed and a declaration issued that the property passed to the sister’s estate.

Appeal from a solicitor's negligence judgment arising out of two insurance litigation files handled for an insurer.

In the Little matter, the court upheld the finding that counsel negligently failed to alert the insurer to a coverage issue revealed on discovery and that, but for that failure, the insurer would likely have denied errors and omissions coverage based on material non-disclosure in the insurance application.

In the Uniroyal matter, the court held that the trial judge erred in interpreting pollution exclusion wording as clearly excluding groundwater contamination under a 1987 umbrella policy, with the result that the insurer still had a duty to defend and suffered no compensable loss from counsel's conduct.

The appeal was therefore dismissed in part and allowed in part, with a later addendum awarding the appellant trial costs of the Uniroyal matter.

The appellant appealed convictions for sexual assault and threatening serious bodily harm arising from an encounter in which consent was the central issue.

The court held that similar fact evidence from a former partner should not have been admitted because its probative value was limited, the possibility of collusion or tainting materially weakened it, and its prejudicial effect was grave.

The court further held that the jury should have received a limiting instruction on other discreditable conduct evidence, and it identified error in the charge on prior consistent statements.

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

Following release of the court's earlier appeal decision, the respondents asked the court to reconsider based on an alleged significant factual error concerning the timing of an insurer's insolvency.

The court acknowledged the factual error but held it did not affect the interpretation of s.4.2 of the share purchase agreement or the ultimate allocation of liability for post-closing assessments.

The court maintained that the respondents remained liable for assessments levied in 1994 and 1995 and thereafter, whether or not calculated on the sold insurer's premium income.

The earlier appeal decision was left unchanged.

On an appeal from summary judgment dismissing claims against a corporate officer, the court held that a moving party cannot rely on its own examination for discovery on a summary judgment motion because rule 39.04(2) applies to all motions, including summary judgment motions, and a party's own discovery is not 'other evidence' under rule 20.01(3).

The court further held that the motions judge erred by treating the appellants' inability to extract admissions on discovery as evidentiary support for the respondent.

The court also rejected the proposition that a corporate officer is immune from personal tort liability merely because the impugned acts occurred within the scope of corporate duties.

The appeal was allowed, the summary judgment and related costs order were set aside, and the respondent was left free to bring a fresh motion on a proper evidentiary record.

The appellant challenged convictions for trafficking in a narcotic and possession of proceeds of crime on the sole ground that the trial judge improperly refused to order disclosure of the precise location of a police observation post.

The Court of Appeal held that the trial judge applied the correct legal principles in balancing public interest privilege and the accused's right to make full answer and defence.

The appellant already knew the building used for surveillance and the surrounding conditions, and the defence failed to identify any specific prejudice arising from nondisclosure.

The defence was also granted leave to renew the application during trial but did not do so, which was fatal to the appeal.

The appellant municipality appealed a judgment finding it liable for negligent misrepresentation arising from assurances given at council meetings that a road would be upgraded in time to permit a subdivision development.

The court held that the trial judge was entitled to accept the respondent's evidence over the municipal minutes, and that the respondent reasonably relied on the assurances in proceeding with the development agreement and related expenditures.

The representations were treated as implying an existing municipal commitment and ability to complete the road work, not merely non-actionable future promises.

In the circumstances, where the Reeve spoke before full council without correction, the municipality could be liable at the operational level in negligence.

The appeal was dismissed with costs.

The appellants appealed the dismissal of an application to vary a spousal support term contained in a divorce judgment incorporating minutes of settlement with a non-variation clause.

The appellant relied on reduced income and the respondent’s bankruptcy as material changes in circumstances under s. 17 of the Divorce Act.

The court held that the alleged changes were either immaterial or foreseeable at the time of settlement, and that the application judge’s conclusion attracted appellate deference.

Subject to deleting one paragraph of the judgment on consent, the appeal was dismissed with costs.

A receiver appointed at the instance of a secured creditor sought recovery of deferred management fees withdrawn before receivership and operating funds deposited into a new bank account shortly before the appointment.

The Court of Appeal held that both claims were subject to equitable setoff because the respondent's cross-obligations arose from the same management relationship and were closely connected to the receiver's claims.

The court rejected arguments that the new account involved conversion or that the management agreement created a trust excluding the respondent's claims.

The appeal was dismissed and costs were awarded to the respondent.

The Crown appealed a trial judgment staying marijuana cultivation and possession charges against an accused who used marijuana to control severe epilepsy.

The court held that criminally prohibiting possession and cultivation of marijuana for necessary medical use deprived the respondent of liberty and security of the person, and that the deprivation did not accord with the principles of fundamental justice because the statutory scheme provided only illusory or unfettered access to lawful medical use.

The court found the ministerial exemption power in s. 56 of the Controlled Drugs and Substances Act constitutionally insufficient to save the blanket prohibition.

The trial stay was upheld, but the reading-in remedy was set aside and the possession prohibition in s. 4 was declared invalid, with the declaration suspended for one year and a personal exemption granted during the suspension.

The appellant challenged marijuana possession and trafficking convictions by arguing that the former statutory prohibition violated s. 7 of the Charter, exceeded federal jurisdiction, and was not proven on the evidence.

The court held that recreational marijuana use, even in the privacy of the home, did not engage protected liberty or security interests as a matter of fundamental personal importance.

Assuming a harm principle formed part of fundamental justice, the court found a reasoned apprehension of non-trivial harm associated with marijuana use and upheld the prohibition except insofar as it failed to include a medical-use exemption.

Because the appellant was not within the class requiring that exemption and the repealed statute could still support prosecution, no stay of proceedings was warranted.

The appeal was dismissed.

The appellant sought leave to appeal sentence after pleading guilty to criminal negligence causing death arising from alcohol-impaired, high-speed driving through multiple red lights, causing a fatal collision.

The court held that this offence does not lend itself to a fixed sentencing range because it may be committed in an almost infinite variety of factual circumstances, although alcohol-related cases have attracted increasing severity over time.

Given the appellant’s extreme moral blameworthiness, prior record, and the need for denunciation and general deterrence, the five-year penitentiary sentence and 15-year driving prohibition were not clearly unreasonable.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant appealed both conviction and sentence following a jury trial for a sexual offence involving an alleged position of trust.

The court rejected challenges to the jury charge, including references to a non-existent letter, the instruction on position of trust, comments on the failure to testify, and the distinction between credibility and reliability.

The conviction appeal was dismissed because no prejudice was shown and the charge, read as a whole, was adequate.

The sentence appeal was allowed because the trial judge placed undue emphasis on the criminal record and the custodial sentence was disproportionate to the relatively minor factual circumstances of the offence.