Marc Rosenberg

The appellants sought to commence proceedings against the Russian respondents in Ontario and attempted to serve them in Russia under the Hague Convention.

The Russian government refused service citing sovereignty and national security.

The appellants brought a motion in Ontario to dispense with or validate service under rules 16.04 and 16.08.

The Court of Appeal held that rule 17.05(3), which incorporates the Convention, is a complete code for service on foreign defendants in contracting states, and Ontario courts have no discretion to substitute, dispense with, or validate service where the Convention applies.

The appellant company's operations manager and vice-president was severely injured in a workplace accident.

The company had previously opted to remove its executive officers from workers' compensation coverage to save money, purchasing private disability insurance instead.

After the injured officer sued the company and settled for $950,000, the company sought indemnification from its commercial general liability insurer.

The insurer denied coverage based on an 'employee injury exclusion' clause.

The Court of Appeal upheld the trial judge's finding that the injured officer was an employee at the time of the accident and that the exclusion clause unambiguously applied to all employees, including executive officers, thereby precluding coverage.

The appellant was convicted of sexual assault and assault.

Prior to trial, the defence learned of police occurrence reports relating to one of the complainants from an unrelated incident and sought disclosure.

The trial judge ruled that the occurrence reports were 'records' under s. 278.1 of the Criminal Code and subject to the third-party production regime in s. 278.2.

On appeal, the Court of Appeal held that the trial judge erred in statutory interpretation.

The Court found that a complainant does not have a reasonable expectation of privacy in a police occurrence report, and that records made by persons responsible for the investigation or prosecution of the offence are explicitly excluded from s. 278.1.

The occurrence reports were subject to the Crown's first-party disclosure obligations under Stinchcombe.

The appeal was allowed and a new trial ordered.

The plaintiff appealed an order dismissing her action.

The application judge found evidence that the plaintiff lacked capacity to instruct counsel to commence the action.

The Court of Appeal held that the application judge erred in principle by failing to consider Rule 7 of the Rules of Civil Procedure.

Instead of dismissing the action, it should have been stayed under Rule 15.02 until an application for a litigation guardian could be made.

The appeal was allowed, the dismissal set aside, and the action stayed.

The Crown appealed the dismissal of its application for certiorari and mandamus after a preliminary inquiry judge discharged the respondents on first degree murder and committed them for second degree murder.

The Court of Appeal upheld the finding that there was no evidence of planning and deliberation.

However, the Court found the preliminary inquiry judge exceeded his jurisdiction by determining whether the victim was unlawfully confined to the degree required for constructive first degree murder under s. 231(5)(e), rather than leaving that question to the jury.

The appeal was allowed and the matter remitted to the preliminary inquiry judge.

The appellant was convicted of assault with a weapon, uttering threats, and forcible confinement in a domestic setting.

The complainant, his fiancée, deliberately failed to attend court for the trial.

The trial judge admitted her videotaped K.G.B. statement as the main evidence against the appellant.

On appeal, the appellant argued he was denied the opportunity to cross-examine her.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the statement met the necessity and reliability requirements for admitting hearsay evidence.

The appellants appealed a Superior Court order regarding their compliance with a municipal by-law.

The sole issue on appeal was whether a chain link fence could be considered a 'principal structure' under section 5.16.6 of the by-law.

The Court of Appeal held that, reading the by-law as a whole, a principal structure must have a wall, and a chain link fence does not constitute a wall.

The appeal was dismissed with costs.

The appellant appealed his conviction entered by a judge and jury.

During deliberations, the jury asked a question regarding the evidence.

The trial judge had not reviewed the evidence in his charge and failed to identify critical parts of the evidence, such as identification evidence, when answering the jury's question.

The Court of Appeal found this to be a reversible error, particularly because it was not a strong Crown case.

The court declined to apply the curative proviso, allowed the appeal, set aside the conviction, and ordered a new trial.

The appellant appealed her conviction on the basis that the trial judge erred in finding no air of reality to the defence under section 3(2) of the regulations.

The Crown conceded the error, as there was evidence the appellant was holding prescription drugs as an agent for another person.

The Court of Appeal allowed the appeal, set aside the conviction, and entered an acquittal.

The appellant appealed his conviction and sentence for importing and trafficking almost 112 kilograms of cocaine.

He argued the trial judge misapprehended evidence in finding reasonable and probable grounds for the search.

The Court of Appeal found no material misapprehensions of evidence and upheld the conviction.

The sentence appeal was also dismissed, as the sentence was within the proper range given the unprecedented quantity of drugs and the appellant's prior record for the same offence.

The appellant appealed his conviction.

The Crown conceded that the trial judge misapprehended the evidence regarding the placement of fingerprints due to a mistaken submission by Crown counsel.

The Court of Appeal found this misapprehension was critical to the conviction.

However, the Court rejected the argument that the verdict was unreasonable.

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

The appellant, who was previously found not criminally responsible for threatening to kill his sister, appealed a disposition of the Ontario Review Board ordering his continued detention in a forensic unit with limited community privileges.

He sought a conditional discharge or discretion for community living.

The Court of Appeal dismissed the appeal, finding that the Board's conclusion that the appellant remained a significant threat to public safety was supported by the evidence, and the disposition was appropriate.

The appellant sued his insurance broker in negligence for failing to offer optional income replacement benefits.

The trial judge found the broker breached its duty of care but dismissed the action because the appellant failed to prove causation, specifically that he would have purchased the coverage if offered.

On appeal, the appellant argued that in cases of insurance broker negligence, the insured does not need to prove causation.

The Court of Appeal rejected this argument, holding that the normal rules of negligence apply and causation remains a question of fact.

Finding no palpable and overriding error in the trial judge's factual conclusions, the appeal was dismissed.

The appellant appealed his conviction for sexual interference, arguing that the trial Crown engaged in improper cross-examination by asking him to comment on the veracity of the complainant.

The Court of Appeal agreed, finding that the question violated the rule against asking an accused for their opinion on another witness's truthfulness.

The trial judge erred by relying on the appellant's equivocal response to this improper question to erase his reasonable doubt.

The appeal was allowed and an acquittal entered.

The appellants appealed an order dismissing their action for delay under Rule 48.14.

The action had been struck from the trial list because the appellants were not ready for trial, and they failed to restore it within 180 days.

The Court of Appeal upheld the status hearing judge's decision, finding no error in considering the entire history of the delay rather than just the 180-day period, and concluding that the judge's finding of no reasonable explanation for the delay was supported by the evidence.

The plaintiffs in a proposed class action appealed a motion judge's decision striking out several claims from their statement of claim against an insurer regarding the sale and administration of universal life insurance policies.

The Court of Appeal allowed the appeal in part, reinstating the claims for breach of the duty of good faith and fair dealing, breach of contract, and deceit and fraud, finding it was not plain and obvious these claims would fail.

The court upheld the striking of allegations concerning releases because the plaintiffs failed to request specific relief for those who signed them.

The appellant insurer appealed a summary judgment ordering it to pay US$15 million for defence costs under a directors' and officers' liability policy.

The dispute centered on whether an exclusion clause (Endorsement #14) unambiguously excluded coverage for claims against the insured's directors and officers acting in their capacity as executives of a bankrupt former subsidiary.

The Court of Appeal found the exclusion clause ambiguous, as it could reasonably be interpreted to either exclude or preserve coverage depending on the capacity in which the executives were sued.

Because the factual matrix did not resolve the ambiguity and the motion judge had not made findings regarding the parties' reasonable expectations, the Court of Appeal allowed the appeal, set aside the summary judgment, and returned the matter to the Superior Court for trial.

The appellant law firm appealed an order that imposed terms effectively removing its solicitor's lien over client files for unpaid legal fees.

The respondents did not appear on the appeal.

The Court of Appeal allowed the appeal, finding that the motion judge identified no basis for imposing the terms and the respondents failed to justify not imposing the lien or show efforts to pay the outstanding account.

A declaration was issued entitling the appellant to a solicitor's lien.

The accused was charged with impaired operation of a vessel causing death.

The trial judge excluded breath test evidence under s. 24(2) of the Charter, finding breaches of ss. 8, 9, and 10(b) due to delays in making and facilitating an approved screening device demand, and acquitted the accused.

The Crown appealed.

The Court of Appeal held that the trial judge erred in finding the accused was detained before the demand was made and in his application of the s. 24(2) Grant framework.

The Court concluded that the admission of the breath test evidence would not bring the administration of justice into disrepute.

The appeal was allowed and a new trial ordered.

The appellant appealed an order upholding a previous order that set aside its statement of defence and dismissed its counterclaim.

The appellant argued the motion judge erred in interpreting Rule 37.14 of the Rules of Civil Procedure, characterizing the motion as a collateral attack, and failing to properly weigh the appellant's self-represented status and the short duration of delay.

The Court of Appeal dismissed the appeal, finding the motion judge comprehensively balanced the interests of the parties and correctly concluded the appellant had wholly failed to comply with court orders without reasonable explanation.