Marc Rosenberg

The appellant operated a restaurant in a mall and sued the landlord and property manager for negligence and breach of contract, alleging construction activities caused its business to fail.

The motion judge granted summary judgment dismissing the action, finding the appellant ought to have discovered its claim more than two years before commencing the action.

The Court of Appeal allowed the appeal, holding that whether the claim was discovered when the business was struggling or when it finally closed was a genuine issue requiring a trial.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded to the respondents in the amount of $20,000, inclusive of disbursements and all applicable taxes.

The appellant pleaded guilty to 12 offences, including possession for the purpose of trafficking in methamphetamine and cocaine, and dangerous driving involving ramming police cars.

He appealed his sentence, arguing it was manifestly excessive.

The Court of Appeal dismissed the appeal, finding the sentence was not manifestly excessive given the seriousness of the offences and the appellant's extensive prior criminal record of over 45 convictions.

The young person appealed a sentence of 12 months' closed custody and supervision followed by 12 months' probation for sexual interference.

The appellant, who had intellectual limitations and a high risk to re-offend, argued the trial judge erred by denying pre-sentence custody credit and imposing a sentence focused on incapacitation contrary to the Youth Criminal Justice Act.

The Court of Appeal dismissed the appeal, finding this was an exceptional case where denying pre-sentence credit was justified, and the sentence appropriately prioritized rehabilitation and accountability in a highly structured setting.

The appellant appealed his conviction, arguing the trial judge erred in admitting the complainant's spontaneous complaint and in assessing credibility.

The Court of Appeal dismissed the appeal, finding the complaint was properly admitted as part of the narrative to provide context for assessing credibility, and that the trial judge did not misapprehend the evidence or unfairly scrutinize the defence evidence.

The sentence appeal was abandoned.

The Crown appealed a Summary Conviction Appeal Court (SCAC) decision that overturned the accused's 'over 80' conviction and ordered a new trial.

The SCAC judge had ruled the trial judge's reasons inadequate because the trial judge failed to determine which of two police officers made the breath demand, as both officers testified the other had done so.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the SCAC judge erred by adding an unnecessary element of proof.

The trial judge's finding that a valid demand was made was sufficient under the Criminal Code, and the accused's compliance with the demand provided a complete answer absent a Charter challenge.

The appellant appealed a judgment dismissing his application for certiorari to set aside a committal order following a preliminary inquiry.

The appellant argued there was insufficient evidence of identification and the type of plant.

The Court of Appeal held that the preliminary inquiry judge did not commit a jurisdictional error, as there was some evidence connecting the appellant to the property and the 9,000 marijuana plants, including his admitted ownership and the testimony of a police officer.

The appeal was dismissed.

The appellant appealed the dismissal of her action against her motor vehicle insurer for income replacement benefits.

She argued the trial judge erred by excluding the medical reports of her deceased family physician and by misinterpreting the Statutory Accident Benefits Schedule (SABS).

The Court of Appeal upheld the trial judge's decision to exclude the reports under section 52(2) of the Evidence Act, as they lacked necessity and reliability and would prejudice the respondent.

The Court also affirmed that under sections 4(1) and 5 of the SABS, an insured must establish eligibility for income replacement benefits within the first 104 weeks after the accident to qualify for benefits beyond that period.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board ordering her detention in a minimum security facility.

She sought an absolute discharge or unsupervised community access.

The Court of Appeal dismissed the appeal, finding the appellant posed a danger to the public and that the disposition was the least onerous and least restrictive option.

Fresh evidence regarding the appellant's absence without leave and refusal to take medication was admitted but ultimately supported the Board's decision.

The self-represented appellant applied under section 683 of the Criminal Code for an order to examine witnesses to adduce fresh evidence on appeal.

The Court of Appeal dismissed the application, finding that the proposed evidence was irrelevant, redundant, or mere speculation given the undisputed fact at trial that child pornography was found on the appellant's computer.

The proposed examinations did not meet the reasonable possibility test for fresh evidence.

The appellant appealed his conviction and sentence.

The sentence appeal was abandoned.

On the conviction appeal, the appellant argued the trial judge misapprehended the evidence and erred in assessing witness credibility.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility assessments and factual findings regarding the physical abuse of the children were fully supported by the record.

The parties separated after a 19-year marriage.

The wife brought a motion to strike the husband's pleadings, alleging he wilfully breached multiple court orders requiring financial disclosure.

The motion judge granted the motion, struck the husband's pleadings, and ordered an uncontested trial.

The husband appealed.

The Court of Appeal allowed the appeal, finding the motion judge made palpable and overriding errors by characterizing the husband's disclosure as merely 'token' and ignoring evidence of substantial compliance.

The Court reaffirmed that striking pleadings is a drastic remedy of last resort in family law cases.

The appellant was convicted of second-degree murder after shooting a drug dealer during an aborted robbery.

At trial, he claimed self-defence, arguing the deceased reached for a gun.

The trial judge excluded evidence of the deceased's prior firearms convictions and limited the use of a witness's prior statement.

On appeal, the majority upheld the convictions and sentence, finding the trial judge did not err in excluding the disposition evidence or in his instructions on the prior statement.

The dissenting judge would have allowed the appeal and ordered a new trial on the basis that the deceased's prior firearms convictions were probative of whether he was armed.

This was a costs endorsement following a family law appeal.

The court held that success on the appeal was divided and ordered that each party bear their own costs of the appeal.

The court further declined to interfere with the trial judge's costs award, finding it reasonable and noting that the result of the appeal would have only a modest monetary impact on the trial decision.

The appellant appealed the dismissal of his action against his former lawyer alleging solicitor’s negligence and breach of fiduciary duty, and also sought leave to appeal a substantial trial costs award.

The court held that the appellant had led no expert evidence on the standard of care, did not fall within recognized exceptions, failed to prove causation or damages, and did not establish any fiduciary breach.

The court further upheld the trial judge’s finding that the claim was discovered no later than February 9, 2006 and was therefore barred by the applicable limitation period when commenced on July 10, 2008.

The appeal was dismissed, leave to appeal costs was refused, and appeal costs were fixed at $28,000 on a partial indemnity basis.

The appellant appealed a decision regarding an agreement reached by the parties, reflected in a special case, concerning the review of a decision by the majority executors of an estate.

The Court of Appeal dismissed the appeal, declining to interfere with the agreement.

The court noted that the agreement entitled the appellant to a review of the majority executors' decision, meaning the court's jurisdiction was not ousted, and left the determination of the appropriate standard of review to the judge hearing the review application.

The appellant sought to appeal an order of the Superior Court of Justice.

The Court of Appeal determined that the order in question was interlocutory.

Consequently, the appeal was quashed for lack of jurisdiction, with no order as to costs.

The appellant appealed an order striking out claims for breach of contract based on representations in an information folder regarding the Can-Am Fund.

The Court of Appeal upheld the motion judge's finding that it was plain and obvious no cause of action existed for breach of contract, given the governing statutory scheme and warnings in the materials.

The application for leave to appeal the costs order was also dismissed.

The appellant appealed his firearm convictions, arguing that his rights under ss. 8 and 9 of the Charter were violated.

Police officers in an unmarked van called out to the appellant on the street; he initially paused but then fled.

He was pursued, arrested, and searched, revealing a loaded handgun.

The Court of Appeal upheld the trial judge's finding that there was no psychological detention prior to his flight, as he did not submit to police authority.

The court further held that the officers had reasonable suspicion to detain him based on the totality of the circumstances, and the subsequent pat-down search was justified for officer safety.

The appeal was dismissed.

The appellant appealed his conviction for robbery and his sentence.

He argued that he did not possess a needle during the incident and that his trial was unfair.

The Court of Appeal dismissed the conviction appeal, noting that the trial judge accepted the victim's evidence regarding the needle and that the record did not support the claim of an unfair trial.

The sentence appeal was also dismissed, as the trial judge gave appropriate weight to the appellant's aboriginal heritage, difficult childhood, and addiction issues, finding no error in principle and that the sentence was fit.