Marc Rosenberg

The appellant challenged a sexual offence conviction and sought leave to appeal a four-year penitentiary sentence.

The court held that extrinsic evidence to contradict the complainant about prior sexual conduct and alleged abuse was irrelevant to any live issue other than credibility and was therefore inadmissible under the collateral fact rule, apart from s. 276 of the Criminal Code.

The court also rejected arguments that the trial judge improperly compartmentalized the defence evidence, erred in relying on flight as consciousness of guilt, or mishandled credibility findings.

The conviction appeal was dismissed, and although leave to appeal sentence was granted, the sentence appeal was also dismissed.

The appellant challenged both the trial judgment and the costs award arising from a dispute concerning consideration for shares and obligations under minutes of settlement.

The Court of Appeal rejected the attack on the trial judge’s factual findings, holding there was evidence to support the impugned findings.

However, it held the trial judge erred in principle in awarding solicitor-client costs because the pleadings, while strongly worded, did not amount to fraud or dishonest conduct warranting elevated costs and were not pursued unreasonably.

Leave to appeal costs was granted, the appeal on costs was allowed, and party-party costs were substituted, with the respondent recovering 90 percent of the costs of the appeal.

Appeal from a trial judgment concerning interpretation of a share purchase agreement for the sale of a life insurance company.

The dispute was whether post-closing industry-wide compensation assessments, calculated using pre-closing premium income, were payable by the vendors or the purchasers.

The court held that the assessments were liabilities arising in the years they were levied, not in the years used to calculate them, and that the agreement required the purchasers to pay them.

The court further held that the negotiation evidence supported that reading and that the general indemnity clause did not displace the specific allocation in the contract.

Appeal allowed, trial judgment set aside, and the action dismissed.

The appellant inventory financier appealed a conversion judgment arising from the seizure and sale of a boat delivered to a dealer for resale.

Assuming without deciding that the dealer held the boat on consignment and lacked title, the court held that the financier could rely on s. 2(1) of the Factors Act because it took its chattel mortgage in good faith and without notice of any lack of authority.

The court rejected the trial judge's conclusion that good faith under s. 2(1) includes a due diligence requirement, holding instead that good faith means honesty, even if conduct is negligent.

The action was dismissed and the appellant received trial and appeal costs.

This appeal arose from an investment management dispute between two corporations and a related claim against a corporate director and officer personally.

The court held that where the formal legal relationship is between corporate entities, personal liability of a corporate officer must be specifically pleaded, including both the separate cause of action and the basis for suing the individual apart from the corporation.

The pleadings here did not sufficiently allege a personal claim or plead breach of fiduciary duty as against the individual, so the appeal on personal liability was allowed.

The cross-appeal on management fees was dismissed except for a minor agreed reduction of $3,887.

No costs were awarded.

The appellant challenged convictions arising from a confrontation at his estranged wife's relatives' home while attempting to locate his child.

The court refused to admit fresh evidence consisting of an affidavit cataloguing inconsistencies from earlier proceedings, holding the evidence lacked due diligence, was not compelling, and would not have affected the result.

The court held that mischief under s. 430(1)(c) or (d) is not an included offence of unlawful entry into a dwelling-house with intent under s. 349, and further held that the trial judge erred by treating intent for mischief as presumptively flowing from the appellant's acts through an objective lens.

The threatening and assault convictions were upheld, but the appeal was allowed in part: one mischief conviction was replaced with an acquittal, and the other was set aside with a new trial ordered and proceedings stayed on that count.

The applicant sought review of a single judge’s order refusing an extension of time to appeal the dismissal of two civil actions tried together, one arising from a motor vehicle accident and the other from an alleged solicitor negligence claim connected to earlier accident litigation.

The court gave the applicant the benefit of the doubt on delay but held there was no basis to disturb the single judge’s conclusion that the proposed appeal lacked sufficient merit.

The proposed appeal turned primarily on credibility findings and factual determinations, including the treatment of medical evidence based on incomplete or inaccurate histories.

The application was dismissed with costs.

The appeal concerned whether an Ontario court retained jurisdiction to vary a spousal support order made under the former Divorce Act when neither former spouse resided in Ontario and one former spouse did not attorn to jurisdiction.

The court held that the Divorce Act, 1985, including its transitional provisions, governed the variation application, and that the moving party had not commenced any variation proceeding before repeal of the former statute.

The court further held that s. 43(c) of the Interpretation Act did not preserve any acquired, accrued, or accruing right to seek variation because no steps had been taken before repeal to exercise that statutory entitlement.

As neither residency nor acceptance of jurisdiction under s. 5(1) was established, Ontario lacked jurisdiction and the variation application was dismissed.

The appellant appealed a conviction for importing marijuana arising from a controlled delivery and a subsequent search of her apartment.

The court held that police breached s. 10(b) by questioning the appellant while detained without advising her of the right to counsel, and that later admissions obtained after formal compliance remained temporally, contextually and causally connected to the original breach.

Once those admissions were excised, the information to obtain did not justify the search warrant, rendering the apartment search contrary to s. 8.

The admissions and the seized material were characterized as conscriptive evidence and excluded under s. 24(2).

Without that evidence, the conviction could not stand and an acquittal was entered.

The Crown appealed a sentence in which the trial judge imposed a conditional sentence.

The court held the sentencing judge was in the best position to assess the effect of the respondent's serious mental illness on the commission of the offence and that there was evidence supporting that finding.

The court also relied on the respondent's youth, controlled mental illness, family support, and the Crown's position at trial.

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

The Crown appealed an acquittal, narrowing its argument to whether the trial judge unreasonably found that the respondent might have acted differently absent admitted breaches of the right to counsel.

The Court of Appeal held that the trial judge's finding under s. 24(2) was open on the record, particularly given the prolonged custodial detention, language barrier, and delayed meaningful access to counsel information.

Applying the governing approach to uncertainty in causation following a s. 10(b) breach, the court held that the Crown had not displaced the inference that timely compliance could have changed the respondent's conduct.

The appeal was dismissed.

The Crown appealed an order staying an assault prosecution after a charge screening form incorrectly indicated that the matter would proceed summarily.

The Court of Appeal held that the notation was merely an administrative error and did not amount to a binding election, particularly because the charge had been laid outside the limitation period for summary proceedings.

The court further held that the subsequent decision to proceed by indictment caused no prejudice or hardship capable of justifying a stay of proceedings.

The appeal was allowed, the stay was set aside, and the matter was remitted to the Ontario Court of Justice.

The appellants challenged a Divisional Court decision that held development lands zoned for industrial and commercial use could not receive farm land assessment treatment because agricultural use was illegal under the zoning by-laws.

The Court of Appeal held that s. 19(3) of the Assessment Act focuses on actual use of the land as a factual matter, not on zoning legality, and that the ordinary meaning of the provision should govern absent compelling contrary indicators.

The court found no basis to read the word “lawfully” into the statute, noted the legislative scheme and policy favoured continued agricultural production, and concluded the Ontario Municipal Board reasonably found the lands were farm lands used only for farm purposes.

The appeal was allowed, the Divisional Court order was set aside, and the Board's order was restored.

Appeal concerning priority between prior perfected PPSA security interests and a later court-ordered charge granted to a mortgagee in possession for occupancy costs incurred while warehousing the bankrupts' personal property.

The court held that the priority issue was not governed by either the Bankruptcy and Insolvency Act or the Personal Property Security Act, and instead had to be resolved under common law and equitable principles.

The majority concluded that, although the appellants' security interests were first in time, their continuing and concerted misconduct in delaying payment of occupancy costs justified postponing their priority in favour of the mortgagee's charge.

The appeals were dismissed and the mortgagee's priority was upheld.

The Crown sought special leave to appeal from a judgment dismissing its appeal in a provincial offences prosecution arising from unlawful hunting and possession of moose parts.

The respondents had succeeded below on the basis that members of the Métis community of Sault Ste.

Marie held an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982.

The court held that the proposed appeal raised important questions of law of first impression concerning the application of s. 35(1) to Métis people, that a full evidentiary record existed, and that the public interest favoured appellate review despite submissions urging political resolution and concerns about delay.

Special leave to appeal was granted.

The applicant brought a second original application for bail pending appeal from a second degree murder conviction after an earlier bail application and review had been dismissed.

The court held that a fresh application may proceed only where there has been a material change in circumstances affecting one or more of the statutory factors in s. 679(3) of the Criminal Code.

The court found such a change based on significantly stronger grounds of appeal, improved evidence that the applicant would surrender, and extraordinary delay caused by the pursuit of fresh evidence.

Balancing enforceability against reviewability under the public interest branch, the court concluded that further detention was not necessary and granted release pending appeal.

A young person appealed the dismissal of a habeas corpus application challenging repeated administrative renewals of a transfer from open custody to secure custody under the Young Offenders Act.

The majority held that, in Ontario, where custody level is judicially determined, the Provincial Director's authority under s. 24.2(9) permits only a temporary 15-day interference unless the young person is returned to open custody and fresh grounds arising there justify a new transfer.

Continuous renewals while the young person remained in secure custody were found to impermissibly subvert the original judicial order for open custody.

The appeal was allowed notwithstanding mootness concerns because the disposition had already been served.

The applicant sought special leave to appeal from a summary conviction appeal decision concerning the interpretation of the management accountant exemption in s. 34 of the Public Accountancy Act.

The chambers judge held the proposed appeal raised a question of law alone, and that uncertainty remained in the jurisprudence concerning whether disclosure or intended use of management-prepared statements by third parties could disentitle an accountant to the exemption.

Because the issue was important in the public interest, relevant to the due administration of justice, and likely to recur, special leave to appeal was granted.

The appellant bank appealed an order striking portions of its defence in a cheque conversion action arising from employee fraud and forged endorsements.

The court held it lacked jurisdiction over the procedural complaint about allowing a late Rule 21 motion because that issue was interlocutory and required leave to the Divisional Court.

On the merits, the court held that the Supreme Court's strict liability conversion analysis in Boma bars a defence of contributory negligence, but does not eliminate the distinct statutory defence of preclusion under s. 48(1) of the Bills of Exchange Act.

Because the impugned paragraphs were unclear and could amount to contributory negligence, they were properly struck to that extent, but the appellant received leave to amend to plead any legally available defence clearly.

Costs were ordered in the cause.

In this medical malpractice appeal, the defendants challenged findings that negligent immobilization of a hand fracture caused permanent disability and substantial damages.

The Court of Appeal held that the trial judge applied the correct specialist standard of care, properly inferred causation under the flexible approach in medical negligence cases, and was not required to apportion between tortious and non-tortious causes once the negligent treatment materially contributed to the entire injury.

The contributory negligence argument based on discontinuing physiotherapy failed because the evidence supported that the treatment was inappropriate and the patient sought alternative care.

The appeal succeeded only on quantum, with the award for past loss of income set aside for lack of evidentiary foundation.