Marc Rosenberg

The requester sought access to documents relating to advice given to the Minister of Finance regarding the effective date of amendments to the Corporations Tax Act.

The adjudicator ordered disclosure, finding that the 'advice or recommendations' exemption under s. 13(1) of the Freedom of Information and Protection of Privacy Act did not apply because the documents did not suggest a single course of action and there was no proof they were communicated to the final decision-maker.

The Divisional Court upheld this decision.

The Court of Appeal allowed the Minister's appeal, holding that the adjudicator's interpretation of s. 13(1) was unreasonable as it failed to protect the deliberative process and the range of options presented to a decision-maker.

The successful appellant sought costs of the appeal and a stay motion.

The respondent and the Receiver argued that costs should be in the cause or paid from funds held in trust, citing special circumstances including the matter returning to the Superior Court and the Receiver managing the property without rent payments.

The Court of Appeal found no reason to depart from the usual rule that a successful party is entitled to costs forthwith, and awarded costs to the appellant payable jointly and severally by the respondent and the Receiver.

The applicant applied to re-open his abandoned appeal from a manslaughter conviction relating to the death of his infant grandson.

He argued that new understandings of Shaken Baby Syndrome following the Goudge Inquiry suggested his conviction might be a miscarriage of justice.

The Court of Appeal dismissed the application, finding that the case did not turn solely on Shaken Baby Syndrome but on cumulative circumstantial evidence, including an unexplained skull fracture, and the applicant failed to provide an innocent explanation for the injuries.

The appellant appealed the sentence imposed by the Superior Court of Justice.

The Court of Appeal for Ontario granted leave to appeal and allowed the appeal, reducing the sentence to two years less a day.

The appellant appealed his conviction, arguing the trial judge erred in assessing his credibility and that of a trainee police officer.

The Court of Appeal dismissed the appeal, finding no reversible error.

The trial judge permissibly rejected the appellant's testimony because it contrasted starkly with the senior police officer's account and differed materially from the version suggested by defence counsel during cross-examination.

The trial judge was also justified in attaching more weight to the senior officer's testimony than to the trainee officer's, given the latter's lack of independent recollection and limited experience.

The appellant appealed a restitution order imposed as part of his sentence.

Fresh evidence demonstrated that the appellant's criminal record prevented him from obtaining employment in his trained field, which in turn prevented him from paying the large restitution amount and obtaining a pardon.

The Court of Appeal allowed the appeal, noting that the restitution order undermined rather than assisted his rehabilitation.

The restitution order was reduced to $40,000, distributed pro rata among the five victims.

The appellant appealed a Summary Conviction Appeal Court decision that set aside an acquittal.

The trial judge had found state conduct unreasonable because the police did not take commission evidence before the victim passed away shortly after the charge was laid.

The Court of Appeal dismissed the appeal, holding that there was no evidence the police delayed their investigation or acted unreasonably, and the exception in R. v. Khelawon did not apply.

The appellant, a former car salesperson, appealed the dismissal of his action for an accounting of unpaid commissions.

The trial judge found that the commissions were calculated in accordance with the employer's pay plans, as clarified by car dealership industry practice, and rejected the appellant's claim that he did not understand the calculations.

The Court of Appeal upheld the trial judge's findings of fact and credibility, concluding there was no basis to interfere with the decision.

The appeal was dismissed with costs.

The appellant appealed his sentence finding him to be a dangerous offender and imposing an indeterminate sentence.

He argued the sentencing judge erred by considering facts from a prior acquittal, applying the pre-July 2008 dangerous offender regime, and misapprehending evidence regarding his potential control through anti-androgen medication.

The Court of Appeal dismissed the appeal, finding the inclusion of the acquittal facts inconsequential, no practical distinction between the legislative regimes for this offender, and that the sentencing judge's findings on the speculative nature of anti-androgen control were supported by the record.

The appellants appealed a summary judgment order regarding a real estate transaction.

They argued the motion judge erred in applying the test for uniqueness of the property by giving undue emphasis to subjective elements.

The Court of Appeal dismissed the appeal, finding that the motion judge properly applied the test and was entitled to accept the evidence of the respondent's wife regarding the property's uniqueness.

A cross-appeal by the respondent for further damages was also dismissed.

Costs were awarded to the respondent.

The appellant appealed an order declaring a 'Covenant and Postponement of Claim' valid and enforceable against it.

The appellant argued it was a guarantor, not a principal debtor, and was released from liability due to a failure to receive a demand notice.

The Court of Appeal dismissed the appeal, finding that the specific language of the Covenant precluded the appellant from relying on the lack of notice, and that the appellant had ratified the events that might have otherwise entitled it to release.

The appellant appealed the application judge's interpretation of a Separation Agreement.

The Court of Appeal found no error, holding that because the deceased never revoked his will, the gift to the respondent remained valid.

The appeal and a motion for fresh evidence were dismissed, with costs awarded to the respondent.

The applicant sought special leave to appeal from the dismissal of an application for an extension of time, which had been dismissed as abandoned.

The Court of Appeal dismissed the application, finding that it did not meet the strict statutory test under section 131 of the Provincial Offences Act, as no issue essential to the public interest or the due administration of justice arose.

The Court noted that the appropriate remedy was an application to the Provincial Offences Appeal Court to reopen the application for the extension of time.

The appellant appealed his sexual assault conviction, arguing the trial judge erred by excluding evidence under section 276 of the Criminal Code that the complainant engaged in consensual sex with another man shortly after the alleged assault.

The Court of Appeal found that the Crown's cross-examination and closing address presented a distorted narrative regarding the complainant's emotional state and loyalty to her boyfriend, making the excluded evidence highly probative to the defence.

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

The appellants appealed a judgment dismissing their claim against the respondent insurer.

The Court of Appeal upheld the motion judge's finding that the limitation period expired in 2005.

The court rejected the appellants' argument that equitable doctrines, such as unjust enrichment, could override the express terms of the insurance contract, the Limitations Act, 2002, and the Insurance Act, particularly since the claim did not fall within the policy terms as it was not an accident.

The appeal was dismissed with costs.

The appellant appealed a summary judgment decision on liability.

The Court of Appeal allowed the appeal, finding that the motion judge did not have the benefit of the recent decision in Combined Air Mechanical Services Inc. v. Flesch.

The Court held that the 'full appreciation test' required a trial because the case turned substantially on credibility and disputed facts, including evidence of a joint venture involving street racing at excessive speeds and reckless driving.

The summary judgment was set aside and the motion dismissed.

The appellant appealed a trial judgment awarding spousal support to the respondent, challenging the trial judge's credibility findings and factual determinations regarding the respondent's immigration status and employment prospects.

The trial judge had found the appellant to be untruthful and accepted the respondent's evidence that she would suffer reduced career opportunities in South Korea due to the cultural stigma of a failed interracial marriage.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's credibility assessments and concluding that the trial judge fully explained why the severe economic disadvantage suffered by the respondent justified a support award outside the Spousal Support Advisory Guidelines.

The appellant, Home Depot, appealed orders authorizing a receiver to sell a property free and clear of Home Depot's leasehold and equitable interests.

The motion judge had refused to draw inferences regarding whether the first mortgagee had impliedly consented to Home Depot's lease, stating he could only rely on undisputed facts.

The Court of Appeal allowed the appeal, holding that the motion judge erred in law by applying an incorrect standard of proof and failing to draw reasonable inferences from the evidence.

The matter was remitted for a new hearing.

The appellant appealed the dismissal of his application under s. 24 of the Controlled Drugs and Substances Act for the return of seized marihuana.

The Court of Appeal first determined that the proper route to review a s. 24 order is by way of certiorari, not an appeal under the Courts of Justice Act or the Criminal Code.

On the merits, the Court held that previous constitutional decisions did not repeal the prohibition against possession of marihuana, and the appellant, who did not hold an authorization to possess under the Medical Marihuana Access Regulations, was not lawfully entitled to possess the seized marihuana.

The appeal was dismissed.

The appellant appealed sentences imposed by three different Superior Court judges, with the primary focus on the sentence imposed by Ducharme J. The Court of Appeal found no error in principle, noting that protection of the public was the paramount consideration given the appellant's record and psychiatric evidence.

The court agreed that the totality principle was entitled to little weight because rehabilitation was not a factor in this case.

The appeal was dismissed.