Brian D. Dubé

The defendant City of Windsor brought a motion for leave to amend its statement of defence to add a statutory notice defence under section 44(10) of the Municipal Act, 2001.

The plaintiff opposed the motion, arguing that the late amendment would cause non-compensable prejudice and that the proposed amendment lacked prima facie merit.

The court granted leave to amend, finding that the plaintiff failed to establish non-compensable prejudice, that the amendment raised a triable issue with apparent merit, and that while the delay was unexplained, it did not constitute inordinate delay triggering a presumption of prejudice.

The court imposed strict procedural terms including further discovery and motion deadlines.

The court interprets Article 7 of Floyd Kersey’s will, determining the proper distribution of his Canadian property where a named beneficiary predeceased him.

The court finds that the testator intended a per stirpes distribution, so that the share of a predeceased beneficiary passes to their issue, rather than lapsing or being distributed per capita among surviving named beneficiaries.

The application was unopposed and the applicant was awarded full indemnity costs from the estate, with a portion of costs personally payable by a respondent who evaded service.

The court considered charges of sexual exploitation and sexual assault against Steven Ronald Moreau, who was accused of engaging in a sexual relationship with VJ, his employee, beginning when she was 16 years old.

The court found Moreau guilty of sexual exploitation under s. 153(1) of the Criminal Code, finding he was in a position of trust and authority as VJ’s employer.

However, the court acquitted him on two counts of sexual assault, finding that the Crown had not proven beyond a reasonable doubt that Moreau abused his position to induce sexual activity or that he engaged in sexual activity without VJ’s consent on the occasion alleged.

The decision provides a detailed analysis of the legal distinctions between sexual exploitation and sexual assault in the context of positions of trust and authority.

The court sentenced Ryan Turgeon, a former high school teacher, to three years’ imprisonment for making sexually explicit materials available to a child and for child luring, contrary to the Criminal Code.

The decision reviews the facts, the positions of the parties, the impact on the victim, and the aggravating and mitigating factors.

The court applies the Supreme Court’s guidance in R. v. Friesen and the Ontario Court of Appeal’s decision in R. v. M.V. to situate the sentence within the evolving range for such offences, emphasizing the breach of trust, the vulnerability of the victim, and the need for denunciation and deterrence.

The decision concerns the admissibility and sufficiency of evidence in a prosecution for firearms and drug offences.

The accused, Hussein Al Hayawi, was stopped by police and found in possession of drugs and firearms.

The court considered whether the accused had knowledge and control over the firearms, ammunition, and cannabis found in the trunk of the vehicle, and whether the cannabis was possessed for the purpose of selling.

The court found the accused guilty on all remaining counts, concluding that the circumstantial evidence established knowledge and control beyond a reasonable doubt.

The accused, Frank Duquette, was charged with two counts of possession for the purpose of trafficking methamphetamine and fentanyl following a traffic stop where a backpack containing illicit substances was found at his feet.

The co-accused, Amy Pineo-Fisher, had already been acquitted.

The central issue was whether the Crown could prove beyond a reasonable doubt that Duquette had knowledge and control of the drugs.

The court found the police constable's testimony unreliable due to poor recollection of key details and determined there was insufficient evidence to establish that Duquette was in a position to observe the drugs in the backpack.

Consequently, the Crown failed to prove the knowledge element of possession, and Duquette was acquitted on all charges.

The accused, Frederick Leon, brought a s. 11(b) Charter application seeking a stay of proceedings for second-degree murder due to unreasonable delay.

The court applied the Jordan framework, calculating total delay, defence delay, and considering exceptional circumstances, specifically the COVID-19 pandemic's impact on trial scheduling.

The court found that after deducting defence delay and pandemic-related delay, the net delay fell below the presumptive ceiling.

The application was dismissed.

The offender pleaded guilty to second degree murder after stabbing his intimate partner 21 times.

The Crown sought a 16-year period of parole ineligibility, while the defence sought 13 years.

The court considered the brutal nature of the attack, the offender's prior assault on the victim, and his criminal record as aggravating factors.

However, the court also weighed the offender's early guilty plea, remorse, and cooperation with police as mitigating factors.

The court sentenced the offender to life imprisonment with no eligibility for parole for 14 years.

The defendants moved for summary judgment to dismiss the plaintiff condominium corporation's action, which included claims for unpaid common fees, an underfunded reserve fund, and breach of an oral contract regarding legal fees.

The court granted summary judgment dismissing the claims for unpaid common fees (due to being statute-barred under the Limitations Act) and the oral contract for legal fees (finding no binding agreement due to lack of consensus and consideration).

However, the motion for summary judgment was dismissed for the claim regarding the underfunded reserve fund, as the court found a genuine issue requiring a trial and confirmed the condominium corporation's standing to pursue this claim on behalf of unit-owners.

The applicant brought a Charter application alleging infringements of his ss. 8, 9, and 10(a) and (b) rights following a vehicle stop and search that led to charges for drug and firearm offences.

The court found that the police search of the vehicle was unlawful and unreasonable due to a lack of reasonable and probable grounds under the Cannabis Act, and that the applicant's detention became unlawful and arbitrary, infringing his ss. 8, 9, and 10(a) and (b) Charter rights.

However, applying the Grant factors under s. 24(2) of the Charter, the court determined that the seriousness of the charges and the high reliability and importance of the evidence to the prosecution's case outweighed the Charter breaches, leading to the admission of the seized evidence.

The plaintiff, Mastronardi Produce Limited (MPL), sued the defendant, Rainbow Acres Inc. (RAI), for $516,686.40 for unpaid seeds and packaging materials.

RAI conceded the principal debt but argued it was largely statute-barred under the Limitations Act, 2002, and disputed the 18% interest rate.

The court found that MPL successfully rebutted the presumption of discoverability, determining the claim was not discoverable until 2014 due to the nature of the long-standing commercial relationship and ongoing payment efforts.

The court also found that the debt constituted a running account, and RAI's partial payments and signed acknowledgements reset the limitation period.

However, the court declined to apply the 18% contractual interest rate, finding no implied agreement, and instead awarded pre-judgment and post-judgment interest at the default rates prescribed by the Courts of Justice Act.

The plaintiff obtained an ex parte order against Facebook, Inc. that validated service and granted Norwich, take-down, and refraining relief regarding allegedly defamatory posts.

Facebook moved to set aside the order under Rule 37.14, arguing it was not properly served and the plaintiff failed to make full and frank disclosure.

The court agreed, finding that service via Facebook's 'Report Post Portal' was invalid and the plaintiff failed to provide sufficient evidence to establish a bona fide claim for defamation, copyright infringement, or cyberbullying.

The ex parte order was set aside, and the plaintiff's cross-motions for contempt and to examine Facebook's counsel were dismissed.

The respondent father brought a motion to expand his parenting time with the parties' 16-month-old child, including overnights and travel to his home in Detroit, Michigan.

The applicant mother opposed the expansion, arguing it would disrupt the child's strict breastfeeding and sleep routine.

The court found that while routine and breastfeeding are important, maximizing the father's parenting time to foster a strong bond and expose the child to his African American heritage was in the child's best interests.

The court ordered a gradual expansion of the father's parenting time, including overnights and holiday schedules.

The Ontario Trustee applied for an order approving the sale of estate farmland and a vesting order.

The respondent beneficiaries opposed the sale and brought a counter-application to remove the trustee.

The court found the trustee breached his fiduciary duties by failing to confer with the designated beneficiary before selling the property, and by pre-taking compensation and registering a mortgage against the property without authorization.

The court dismissed the trustee's application for a vesting order, finding he did not come to court with clean hands, and granted the counter-application to remove and replace him as trustee.

The applicant father brought a motion seeking an order that Ontario has jurisdiction over a parenting dispute regarding two children.

The respondent mother had commenced family court proceedings in Michigan.

The court found that Ontario and Michigan had concurrent jurisdiction because the children were habitually resident in both jurisdictions due to a shared parenting arrangement.

However, applying the balance of convenience test under s. 25 of the Children's Law Reform Act, the court declined to exercise its jurisdiction in favour of Michigan, noting the history of court filings there, a prior ruling by a Michigan judge, and the children's medical care being based in Michigan.

The plaintiffs brought a motion to provisionally strike the defendants' jury notices in a motor vehicle accident claim due to anticipated trial delays caused by the COVID-19 pandemic.

The court noted the significant backlog of civil jury trials in Windsor and the prejudice the plaintiffs would suffer from further delay, particularly regarding the statutory reduction of pre-trial income loss.

The court granted the motion, ordering the matter to proceed as a judge-alone trial unless civil jury trials resume in Windsor by the scheduled trial date.