Brian C. J. Holowka

Sentencing following convictions for sexual interference and invitation to sexual touching arising from repeated sexual abuse of a young child by a parental figure in the home.

The court applied the modern sentencing framework for child sexual offences, emphasizing denunciation, deterrence, the serious bodily and psychological harm caused by digital penetration, repeated abuse, breach of trust, and foreseeable long-term impacts.

The sexual assault count was conditionally stayed under the rule against multiple convictions for the same delict.

A global sentence of six years' imprisonment was imposed, together with substantial ancillary orders, and the victim surcharge was waived for undue hardship.

The accused, charged with sexual offences against a minor, applied to adjourn the trial to allow his counsel to participate in a murder trial in another jurisdiction.

The accused offered to waive his section 11(b) Charter rights for the delay.

The Crown opposed the adjournment, citing the negative impact on the young complainant and the public interest in a prompt trial.

The court dismissed the application, finding that the delay would cause significant prejudice to the complainant and that the accused's right to make full answer and defence would not be compromised by proceeding as scheduled.

The 83-year-old accused was charged in 2022 with a historical murder from 1975.

A fitness hearing was held to determine if his cognitive decline rendered him unfit to stand trial.

While early assessments suggested potential malingering, subsequent psychiatric evaluations confirmed a diagnosis of Moderate Neurocognitive Disorder (dementia).

The court accepted the joint submission of the Crown and defence, finding that the accused's dementia severely compromised his ability to sustain attention, follow proceedings, and instruct counsel.

The accused was found unfit to stand trial and ordered transferred to a psychiatric hospital.

The offender was convicted of dangerous driving causing death and dangerous driving causing bodily harm after driving at 190 km/h in a 90 km/h zone, crossing the median, and colliding with an oncoming vehicle.

The collision resulted in the death of his passenger and bodily harm to the driver of the other vehicle.

The court emphasized denunciation and deterrence, noting the extreme speed and deliberate nature of the driving.

The offender was sentenced to three years' imprisonment, an eight-year driving prohibition, and a non-communication order.

Sentencing of an accused found guilty by jury of aggravated assault and uttering threats to cause bodily harm, who also pleaded guilty to possession of a prohibited weapon.

The accused stabbed the victim with a spring-operated knife during a consensual fist fight after threatening him on Facebook.

The court accepted a joint submission for a conditional sentence of two years less a day with a house arrest component for the first twelve months, followed by a curfew.

Significant mitigating factors included the accused's extensive rehabilitative efforts addressing severe alcohol addiction, employment stability, family support, and compliance with release conditions.

Ancillary orders included a DNA order, ten-year weapons prohibition, and forfeiture of the knife.

The plaintiff brought a motion for partial summary judgment to recover $2.26 million ($2 million plus HST) owed under a promissory note arising from a share purchase agreement for a construction and development corporation.

The defendants opposed, asserting set-off defences and an $8.5 million counterclaim alleging breach of contract, negligence, and negligent misrepresentation related to cost overages on a construction project.

The court found no genuine issue for trial on the plaintiff's claim, holding the promissory note obligation was discrete and readily separable from the counterclaim.

Partial summary judgment was granted but execution was stayed on condition the judgment amount be paid into court within 45 days pending adjudication of the counterclaim.

The defendant employer brought a motion to dismiss or permanently stay an employment action on grounds of lack of jurisdiction or forum non conveniens.

The plaintiff, a former employee, commenced an action in Ontario alleging breach of contract, intentional infliction of mental suffering, and discriminatory treatment arising from her dismissal without notice.

The defendant argued that the action should be stayed in favor of Manitoba courts, where the plaintiff was employed and where the alleged misconduct occurred.

The court found that a forum selection clause in the plaintiff's original employment contract with Atomic Energy Canada Limited (AECL) designated Ontario as the exclusive jurisdiction and remained enforceable against the defendant, a wholly-owned subsidiary of AECL that assumed the plaintiff's employment.

The court also found that Ontario had jurisdiction simpliciter based on multiple presumptive connecting factors.

The motion was dismissed.

The applicant, a separated spouse, sought to set aside the will of the deceased testator on the grounds of lack of testamentary capacity and to obtain custody of the deceased's cremated remains.

The applicant alleged the testator suffered from Wernicke-Korsakoff syndrome and lacked capacity to execute the will dated October 24, 2023.

The court found that the will met all requirements for due execution and that the applicant failed to provide evidence of suspicious circumstances sufficient to rebut the presumption of validity.

The application was dismissed, the will was declared valid, and the disposition of the remains was entrusted to the executor.

The accused was charged with sexual assault and sexual touching of two young sisters (ages 6-10 and 3-4 at the time of the alleged incidents) between 2015 and 2018.

The Crown sought to admit similar fact evidence regarding the testimony of both complainants.

The court rejected the similar fact evidence application due to concerns about unconscious collusion between the sisters, finding that the Crown failed to rebut collusion on a balance of probabilities.

At trial, the court found both complainants credible but unreliable due to significant inconsistencies in their testimony, recovered memories through flashbacks and dreams, and lack of independent corroborating evidence.

The court acquitted the accused on all counts, finding a reasonable doubt existed regarding guilt.

The applicant, M.D., sought a writ of mandamus to compel the Director of the Special Investigations Unit (SIU) to lay criminal charges against two police officers following an incident in which M.D. alleged sexual assault during a search at a hospital.

The court considered whether the SIU Director had a duty to lay charges, whether an alternative remedy was available, and whether the merits of the Director’s decision justified mandamus.

The court found no duty owed to the applicant to form reasonable and probable grounds, held that the private prosecution process under section 504 of the Criminal Code was an adequate alternative remedy, and found no evidence of bias or improper motive in the Director’s decision.

The application for mandamus was dismissed.

Le jugement porte sur la nullité du mariage entre Joseph Nzambayulu Mboma et Marie Mbwamuyolo, ainsi que sur la date de leur séparation.

Le tribunal conclut que le requérant était déjà marié à Bolele Bakopo (aussi connue sous le nom de Bolele Nzamba) au moment de son mariage avec la défenderesse, et que ce mariage antérieur n’a jamais été dissous.

Par conséquent, le mariage entre les parties est déclaré nul ab initio.

La date de la séparation des parties est fixée au 1er avril 2018, sur la base de la prépondérance des probabilités et de l’évaluation de la crédibilité des témoins et des preuves documentaires.

The court considered whether a binding and enforceable settlement was reached between the parties following mediation and subsequent email exchanges.

The Applicant sought an order to enforce the settlement terms, while the Respondent argued that no binding agreement existed due to the absence of a signed document and unresolved essential terms.

The court found that the parties had reached consensus on all essential terms, as evidenced by their conduct and correspondence, and that the agreement was enforceable despite not meeting the formal requirements of a domestic contract under the Family Law Act.

The Applicant’s motion was granted, and a final order was issued in accordance with the settlement.

The court granted the applicant's motion to strike the respondent's motion to change a final child support order, due to the respondent's persistent and ongoing failure to provide financial disclosure and comply with multiple court orders.

The court found the respondent's non-compliance to be egregious and willful, and concluded that no other remedy would suffice.

The decision also sets out the process for written submissions on costs.

The court considered an application by police officers Justin Lafleur and Rodney Degray to quash subpoenas issued by M.D. in the context of a mandamus application seeking to compel the Special Investigations Unit (SIU) to lay charges.

The court found that M.D. had not established that the officers were likely to have relevant, material, and admissible evidence for the judicial review.

The application to quash the subpoenas was granted, as the evidence sought did not fall within the recognized exceptions for admitting new evidence on judicial review.

The court considered the apportionment of costs between two insurers, Wawanesa and Aviva, following the settlement of two related actions arising from a serious motor vehicle accident.

The plaintiff, Stephane Brazeau, sought to recover all costs and disbursements from Wawanesa, the statutory third party, after both actions settled.

The court held that costs should be apportioned equally (50-50) between Wawanesa and Aviva, and that Wawanesa was not responsible for costs related to the Statutory Accident Benefits (SABs) claim, as it had no control over those proceedings and did not benefit from the SABs settlement.

The court considered whether an ante mortem statement by Emma Roy, made to Christopher Prieur two days before her death in a car accident, was admissible under the principled exception to the hearsay rule.

The Crown sought to admit the statement to show prior discreditable conduct by the accused, Kyle Trepanier.

The court found that the statement did not meet the threshold reliability requirement, as the circumstances did not negate the possibility of untruthfulness or mistake.

The application was dismissed.

L'appel porte sur une ordonnance rendue en vertu de l'article 117.05 du Code criminel interdisant à Liberty Valance de posséder des armes à feu et ordonnant la confiscation de ses armes.

L'appelant, auto-représenté, conteste la décision de la juge de paix, notamment le fait que l'audience ait eu lieu en son absence.

La Cour supérieure de justice de l'Ontario conclut que la juge de paix a exercé correctement son pouvoir discrétionnaire en refusant l'ajournement et en procédant ex parte, et rejette l'appel.

The court considered costs following the dismissal of a motion to set aside a default judgment for foreclosure and the noting in default of the defendant, Eric Manirambona.

The court found that the defendant's conduct, including intentional delay and false allegations, warranted an award of substantial indemnity costs.

The court fixed costs at $28,000, payable forthwith by the defendant to the plaintiff, and excluded Ural Link Ltd. from the costs order as it did not participate in the motion.

The court considered the appropriate costs order following an application in which the applicant, Kristine McGinn, obtained injunctive relief against the respondents, including Stephen Bleeker and Assurance Home Care.

The court determined that costs should be payable forthwith on a partial indemnity basis, rejecting the applicant’s request for substantial indemnity costs and her request that costs be awarded against Mr. Bleeker personally.

The court fixed costs at $47,769.39, inclusive of fees, disbursements, and HST, to be paid within 30 days.

The defendant, Eric Manirambona, moved to set aside a default judgment for foreclosure on a commercial property in Renfrew, Ontario.

The court reviewed the chronology of events, the defendant’s financial circumstances, and the applicable legal principles.

The court found that the motion was not brought with reasonable promptness, there was no reasonable prospect of payment, and the defendant had not been active in raising the necessary funds.

The court also found no special circumstances or intrinsic value in the property for the defendant.

The motion was dismissed.