Marc Rosenberg

The appellant appealed a sexual assault conviction and sought leave to appeal sentence.

The court held that the trial judge properly dismissed the application to adduce evidence of other sexual conduct under s. 276 of the Criminal Code, particularly where the application was not renewed after the complainant's subsequent testimony and the proposed evidence was irrelevant to the issues raised.

The court also found the jury charge fair and balanced.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because there was no error in principle in refusing a conditional sentence for serious offences involving grave breach of trust and a vulnerable victim.

The Crown appealed a sentence imposing a conditional sentence for a serious but isolated incident.

The Court of Appeal held it was open to the trial judge, in the particular circumstances and in light of the complainant's expressed wishes, to emphasize restorative principles.

The decision to impose a conditional sentence was not unreasonable and attracted deference.

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

The appeal concerned the interpretation of a prior judgment arising in a bankruptcy context and its effect on an equalization entitlement linked to a pension plan.

The appellant argued that the prior order converted the equalization payment into an interest in the pension plan, rendering it not exigible by the respondent.

The court accepted that interpretation and rejected the view that the pension interest served only as security for a fixed money judgment.

The appeal was allowed, the order below was set aside, and the respondent's motion was dismissed, with costs to the appellant limited to disbursements.

On an appeal in a construction lien proceeding, the court considered whether expiry of a perfected lien under s. 46(1) of the Construction Lien Act automatically required dismissal of the entire action, including joined contract claims.

The court held that s. 46(1) mandates dismissal of the action to enforce the lien, but that s. 47(1)(d) preserves discretion to dismiss or allow continuation of non-lien claims within the same action.

Applying that interpretation, the court found the Master had exercised the discretion to dismiss the whole proceeding and that, given four years of inactivity and the absence of responding evidence, there was no arguable basis to interfere.

The appeal was allowed, the Divisional Court order was set aside, and the Master's dismissal order was reinstated.

The appellant appealed a murder conviction and sentence, advancing grounds including unreasonable verdict, the availability of second degree murder, alleged errors in the trial judge's answers to jury questions, the explanation of the consequences of a not criminally responsible verdict, and sentence.

The court held there was evidence on which the jury could reject the defence of not criminally responsible and find the requisite intent for murder.

It further held that the trial judge properly instructed the jury and appropriately answered the jury's questions, and that the explanation of the consequences of a not criminally responsible verdict accorded with the authorities.

The request for a constitutional exemption from the minimum life sentence without parole eligibility for ten years was rejected.

The appeal from conviction and sentence was dismissed.

The appellant employer appealed the refusal to dismiss a proposed class action seeking recovery of employee benefits allegedly tied to employment insurance premium reductions after collective agreement language was removed.

The Court of Appeal held that the core dispute—whether the employer actually satisfied its undertaking to share the benefit of the premium reduction—was not a question reserved exclusively to the statutory Commission under the governing Act and regulations.

The court further held that an officer's ruling did not create issue estoppel because it was not a determination made within the decision-maker's statutory jurisdiction on the question sought to be litigated.

The appeal was dismissed with costs.

In this commercial lease damages appeal, the appellants challenged findings that the respondent had reasonably mitigated its losses after replacement tenants vacated two units and that future rent losses were properly assessed.

The Court of Appeal held that the mitigation findings were factual determinations entitled to deference and that the appellants failed to adduce evidence showing the respondent's efforts were unreasonable.

The court also rejected the argument framed as remoteness respecting one unit, holding the real issue was mitigation.

The trial judge's use of a 50 percent reduction factor for uncertainty in future rent recovery was upheld, and the appeal was dismissed with costs.

The appellant challenged a trial judgment arising from a commercial lease dispute, arguing that a ventilation covenant breach was sufficiently serious to justify rescission.

The court held that any alleged factual or legal errors in the trial judge's oral commentary did not undermine the ultimate finding that the breach was not fundamental.

The panel deferred to the trial judge's assessment of the evidence and witnesses.

A further argument seeking reduction of damages for the breach was rejected because it had not been pleaded or argued below and lacked substance in light of the trial judge's findings.

The appeal was dismissed with costs.

The appellant appealed a narcotics importation conviction entered after a guilty plea following an unsuccessful voir dire seeking exclusion of cocaine found during a border strip search.

The court upheld the trial judge’s finding that customs officers had reasonable grounds to suspect contraband under s. 98 of the Customs Act, although the threshold was met only minimally.

While breaches of ss. 10(b) and 8 of the Charter were found because the search proceeded before the appellant had a reasonable opportunity to consult counsel, the evidence was properly treated as non-conscriptive and, in any event, discoverable.

Applying the s. 24(2) analysis, the court deferred to the trial judge’s conclusion that exclusion would do greater harm to the repute of the administration of justice than admission.

The appellants challenged an order dismissing their application to quash committals to stand trial arising from a bank robbery prosecution based entirely on circumstantial evidence.

The Court of Appeal applied the strict test governing review of a committal and held there was no scintilla of evidence on the element of identity.

The purported clothing nexus between one appellant and one robber failed because the descriptions contained a material dissimilarity, leaving only resemblance, suspicion, and speculation.

The appeal was allowed and the orders to stand trial were quashed on all charges.

Investors appealed the dismissal of their action against a law firm arising from a failed investment transaction in which they lost all monies advanced.

The appeal challenged findings that a prior judgment did not retroactively create a constructive trust, that no solicitor-client or fiduciary relationship existed between the solicitor and the investors, and that the solicitor had not breached any duty of care in relation to disclosure, mortgages, or fund disbursements.

The court held the factual findings were supported by the record, applied the fiduciary-duty indicia from Lac Minerals, and emphasized the conflict concerns in imposing fiduciary obligations on solicitors toward non-clients.

The appeal was dismissed with costs.

The appellant appealed convictions for two counts of attempted murder arising from a gasoline-fuelled attack on his estranged spouse and her partner, and also appealed a lengthy penitentiary sentence.

The court held that expert reply evidence on accidental ignition was admissible because the ignition mechanism was only marginally relevant during the Crown's case and became a live issue after the appellant testified.

The court also rejected the challenge to the attempted murder charge, finding that, read as a whole, the instructions made clear that proof of intent to kill was essential.

Given the planned and deliberate nature of the offences and the catastrophic injuries inflicted, leave to appeal sentence was granted but the sentence appeal was dismissed.

The appellants appealed a judgment restraining use of storm-damaged lakefront property for cottage purposes after rezoning to hazard lands.

The central issue was whether a legal non-conforming use survived where the prior owners ceased occupancy after severe storm damage and decided not to rebuild.

The court held that continuation under s. 34(9) of the Planning Act requires both intention to continue the use and continuation of actual use so far as possible in the circumstances.

The prior owners had abandoned the cottage use, breaking the chain of continuity.

The appeal was dismissed, with only a formal amendment removing the word 'interlocutory' from the injunction.

Appeal and cross-appeal arising from cross-claims for contribution following settlement of a wrongful death action involving a child killed at a railway crossing near a pedestrian underpass.

The Court of Appeal upheld the trial judge's findings that both the railway and the municipality owed duties of care, knew or ought to have known of the danger created by absent or inadequate fencing, and failed to act.

Applying the duty of care analysis and the policy-operational distinction, the court found no reviewable error in the allocation of 75 percent liability to the railway and 25 percent to the municipality.

The appeal and cross-appeal were dismissed with costs.

The appellant challenged a trial judgment awarding damages for breach of contract arising from a commercial distribution relationship involving photographic products and an export price policy aimed at curtailing transhipping.

On appeal, the appellant restricted its arguments to restraint of trade, penalty, and damages, while the respondent advanced a cross-appeal on damages scope.

The court held that even assuming the policy was a restraint of trade, it was reasonable as between the parties and not contrary to the public interest, including the Competition Act.

The court further held the policy was not a penalty clause because it applied absent any breach, and found no error in the trial judge's assessment of notice and damages.

Both the appeal and cross-appeal were dismissed with costs.

The appellant challenged convictions for historical sexual offences against two complainants, arguing errors in third-party records production, admission of discreditable conduct evidence outside the indictment, jury instructions on motive to fabricate, supplementary charge, and failure to charge on recent complaint.

The Court of Appeal held that the counselling records were not shown to be likely relevant, emphasizing that case-specific evidence is required and mere references to abuse or credibility-related topics are insufficient.

The court upheld the admission of evidence concerning abuse in the Bahamas and New Brunswick because the defence had made the broader relationship central to the case and the evidence had strong probative value notwithstanding its discreditable character.

The court also rejected the proposed recent complaint instruction, holding that the doctrine should not be preserved for historical sexual allegations.

Conviction appeal dismissed and sentence appeal dismissed.

The appellant appealed a jury conviction for indecent assault arising from allegations said to have occurred approximately twenty years before trial.

The Court of Appeal held that the 45.5-month delay between charge and trial infringed s. 11(b) of the Charter after applying the Morin framework, finding approximately twelve months of unacceptable institutional delay and meaningful prejudice, including inferred prejudice from the lengthy delay.

The court also held that a challenge to the validity of the preliminary inquiry and indictment could not be raised for the first time on appeal once the indictment had been presented.

It further held that the trial judge erred in a Corbett ruling by permitting sanitized cross-examination on prior similar sexual offence convictions where the defence attack was directed to credibility, not character.

The conviction was set aside, a new trial ordered, and the proceedings stayed.

In a family law appeal involving an exceptionally high-income payor, the court held that the presumptive Table amount under s. 4 of the Federal Child Support Guidelines could be displaced where clear and compelling evidence showed it was inappropriate.

The court found the child support award required a fresh hearing because the trial judge had been bound by pre-Francis authority and had made insufficient findings on the child's means, needs, and circumstances.

The cross-appeal on spousal support was also allowed because the trial judge failed to consider all objectives in s. 15.2(6) of the Divorce Act.

The court dismissed the custody and wedding gift issues, but held that the wealthy payor should ordinarily bear the costs of litigating child support where the custodial parent is forced to defend the presumptive Table amount.

The appellants challenged amendments to Bill 160 that removed principals and vice-principals from teacher bargaining units, excluded them from the provincial labour relations regime, and ended their statutory membership in teachers' organizations.

They argued the amendments were a reprisal for participation in a province-wide protest against education reform legislation and therefore infringed freedom of expression and freedom of association under ss. 2(b) and 2(d) of the Charter.

The court held that the appellants failed to prove, on a balance of probabilities, that the legislative purpose was punitive rather than corrective, and further held that exclusion from a statutory collective bargaining scheme and removal of mandatory statutory union membership did not violate s. 2(d).

The appeal was dismissed with costs.

Commercial appeal arising from a terminated joint venture funding agreement for the acquisition of Greek mines.

The Court of Appeal held that no fiduciary duty survived termination of the parties' arm's-length commercial agreement, but upheld findings that the respondent group provided confidential information, that the appellant misused that information in acquiring the property, and that the confidentiality agreement and common law duty of confidence were enforceable.

The court refused to admit fresh evidence under the Palmer test and dismissed a non-party motion to set aside the judgment based on alleged ownership of the information.

The remedy awarding a 12 per cent carried interest plus a further 12 per cent participating interest was upheld, while both the main appeal and cross-appeal were dismissed.