Cynthia Petersen

The defendant brought a motion for leave to appeal the order of Belobaba J. dated December 20, 2022, regarding a certification motion.

The Divisional Court granted leave to appeal and noted that the parties could apply to the Court of Appeal to have this appeal heard together with the pending appeal of the dismissal of the balance of the certification motion.

No costs were awarded as costs outlines were not filed.

The appellant father appealed a summary judgment order placing his twin children in extended society care.

The children, who are of First Nations heritage, had been in the care of the society since birth.

The appellant failed to meaningfully participate in the appeal hearing.

The Divisional Court reviewed the motion judge's findings regarding the lack of a genuine issue for trial, the best interests of the children regarding access, the absence of viable kinship placements, and the adequate consideration of the children's Indigenous heritage.

Finding no palpable and overriding error or error of law, the court dismissed the appeal.

The accused, convicted of possession of 7.038 kg of heroin for the purpose of trafficking, was sentenced to five years imprisonment.

The court considered aggravating factors, including the large quantity of heroin and the accused's association with organized crime, and mitigating factors, such as his non-profit motive, pro-social conduct, and genuine remorse.

The court rejected the Crown's request for a 16-year sentence and the forfeiture of $10,500, finding the latter not proven to be proceeds of crime.

A 10-year weapons prohibition and a $200 victim surcharge were also imposed.

The plaintiff by counterclaim advanced $465,000 to the defendant religious corporation based on verbal assurances from its spiritual leader that the funds would be repaid after a new gurdwara was constructed.

The corporation argued the payments were either donations or statute-barred loans.

The court found the payments were not donations and no valid loan agreement existed, establishing unjust enrichment.

Although the claimant sought a remedial constructive trust, the court held a monetary award was sufficient.

Applying McConnell v. Huxtable, the court ruled the alternative claim for monetary restitution was protected by the 10-year limitation period under the Real Property Limitations Act, as the proprietary claim was viable and not an abuse of process.

The corporation was ordered to pay $465,000 in damages.

The Crown brought a pre-trial application to admit the hearsay evidence of a 14-year-old complainant in a sexual assault and sexual interference case.

The evidence consisted of video-recorded statements to police and a social worker, and audio-recorded testimony from the preliminary inquiry.

The Crown argued the complainant would suffer psychological trauma if forced to testify at trial.

The court found the evidence met the criteria of necessity and threshold reliability under the principled exception to the hearsay rule.

The court also held that admitting the evidence did not violate the accused's rights under ss. 7 and 11(d) of the Charter, as the accused had a full opportunity to cross-examine the complainant at the preliminary inquiry.

The application was granted.

Le requérant, reconnu coupable de possession d'héroïne en vue d'en faire le trafic, a contesté la validité constitutionnelle du paragraphe 5(2) de la Loi réglementant certaines drogues et autres substances.

Il alléguait que la disposition violait les articles 7 et 15 de la Charte canadienne des droits et libertés en criminalisant les « bons samaritains » qui tentent de fournir un approvisionnement sécuritaire aux toxicomanes.

La Cour a rejeté la requête, concluant que la loi ne crée pas de discrimination fondée sur la dépendance et que l'atteinte au droit à la liberté n'est ni d'une portée excessive ni totalement disproportionnée par rapport aux objectifs de santé et de sécurité publiques de l'État.

The applicant was pulled over for an obstructed licence plate.

During the traffic stop, the officer smelled burnt cannabis and observed cannabis shake.

The officer also suspected the rental vehicle might be stolen.

The officer delayed informing the applicant of the new reasons for detention and failed to provide rights to counsel promptly.

A search of the applicant and vehicle yielded fentanyl, a loaded handgun, and credit card data.

The applicant brought a pre-trial motion alleging breaches of ss. 8, 9, 10(a), and 10(b) of the Charter and sought exclusion of the evidence under s. 24(2).

The court found breaches of ss. 10(a) and 10(b) but no breaches of ss. 8 or 9.

Applying the Grant framework, the court concluded that the evidence should not be excluded, as the breaches were not at the most egregious end of the spectrum, had minimal impact on the applicant's interests, and society's interest in adjudicating serious offences on the merits strongly favoured admission.

The application was dismissed.

The plaintiff brought an action for wrongful dismissal against four family-owned corporate defendants, claiming they were common employers.

The defendants argued the plaintiff was an independent contractor and, alternatively, was dismissed for cause due to absenteeism.

The court found the plaintiff was an employee, not an independent contractor, and that his dismissal was a retaliatory response to his questioning of the family business management, not for cause.

The court applied the common employer doctrine, holding all four corporate defendants jointly and severally liable.

The plaintiff was awarded damages representing a 22-month reasonable notice period, less the 6.5 months already paid, totaling $119,860.

The applicants, four university students, sought judicial review of the respondent university's decision to deny their requests for religious exemptions from its mandatory COVID-19 vaccination policy.

The students argued the university's decisions were unreasonable and breached procedural fairness.

The Divisional Court held that while it had jurisdiction to review the decisions, the core issue was a claim of discrimination based on creed, which should be adjudicated by the Human Rights Tribunal of Ontario.

The court also found that the university met the rudimentary duty of procedural fairness owed to the students given the context of the pandemic and the institutional constraints.

The application was dismissed.

Patrick Doyle was convicted by a jury of manslaughter and first-degree murder.

The court's task was to sentence him for these offences.

For first-degree murder, a mandatory life sentence with no parole eligibility for 25 years was imposed.

For manslaughter, the Crown sought 10 years, and the Defence sought 5 years.

The court imposed an 8-year concurrent sentence, considering the gravity of the offence, the degree of the offender's responsibility, and aggravating factors such as a lengthy criminal record and firearms prohibition.

The court also considered mitigating collateral consequences of harsh pre-sentence detention conditions during the COVID-19 pandemic, applying a "Duncan credit" as a factor in determining the fit sentence, and a "Summers credit" for time served.

The accused, Suhaib Mustafa, was charged with three counts of possessing and three counts of importing altered Mexican passports in order to contravene the Immigration and Refugee Protection Act (IRPA).

The passports were found concealed in his luggage upon entry to Canada.

The court clarified that knowledge of the fraudulent nature of the passports is not an essential element of the offence under s.122(1) of the IRPA, but rather the intent to contravene the Act.

Relying solely on circumstantial evidence, the Crown failed to prove beyond a reasonable doubt that Mr. Mustafa possessed and imported the passports with the specific intent to contravene the IRPA, as other reasonable inferences inconsistent with guilt could be drawn from the evidence.

The court found significant gaps in the Crown's investigation.

Consequently, Mr. Mustafa was found not guilty on all counts.

During jury selection for a second-degree murder trial, the accused requested the trial judge use the expanded stand-by power under s. 633 of the Criminal Code to ensure at least one Black juror was selected.

The Crown opposed the request.

The trial judge conducted a detailed analysis of the legislative history and conflicting jurisprudence regarding s. 633.

The court concluded that while s. 633 can be used to enhance jury diversity to maintain public confidence in the administration of justice, the specific grounds advanced by the defence—that a Black juror could help others understand cultural norms—did not constitute reasonable cause.

The request was denied.

Following a 16-day family law trial, both parties sought costs.

The applicant was overwhelmingly more successful on the major issues, including parenting, and was presumptively entitled to costs.

The court found that the respondent and her former counsel engaged in egregious and unreasonable litigation conduct, including breaching court orders, making unsubstantiated allegations of child abuse, and launching personal attacks.

As a result, the court awarded the applicant costs on a 90% close-to-full recovery basis, fixing the amount at $173,601.90, to be paid from the respondent's share of the net proceeds of the sale of the matrimonial home.

In supplementary reasons following a trial, the court determined the quantum and duration of spousal support owed by the applicant to the respondent.

The court applied the Spousal Support Advisory Guidelines, factoring in imputed incomes for both parties and changing parenting arrangements over the years.

The applicant was ordered to pay $78,261 in retrospective spousal support and $6,053 monthly in prospective spousal support for an indefinite duration, subject to review.

The applicant was also ordered to maintain a $1,000,000 life insurance policy to secure his support obligations.

The accused was charged with importing cocaine after arriving at Pearson Airport from Colombia with two rum bottles in his luggage.

One bottle was confirmed to contain over 1 kilogram of liquid cocaine.

The Crown failed to prove the contents of the second bottle due to continuity issues with the police exhibits.

On the issue of knowledge, the court found that the circumstantial evidence, including the accused's candid customs declaration and the lack of inculpatory evidence, did not exclude the reasonable inference that he was a blind courier unaware of the drugs.

The accused was acquitted.

Following a family law trial, the respondent sought $250,000 in costs on a partial indemnity basis, while the self-represented applicant argued no costs should be awarded due to divided success.

The court found that the respondent was significantly more successful overall and that the applicant engaged in unreasonable litigation conduct, including failing to disclose assets and taking untenable positions.

The court awarded the respondent $165,000 in costs, inclusive of fees, disbursements, and HST, payable from the applicant's share of the matrimonial home sale proceeds.

The accused, a Black man charged with second-degree murder, brought an application to challenge prospective jurors for cause based on anti-Black racism.

The court determined the specific anti-bias instructions and questions to be posed to the jury panel.

The court also ruled that, under the new legislative regime, the trial judge rather than defence counsel would ask the challenge for cause questions to preserve objective neutrality and underscore the court's commitment to an impartial jury.

The plaintiffs brought an action for defamation and breach of a non-disclosure agreement regarding derogatory internet posts allegedly authored by the defendant under a pseudonym.

The plaintiffs moved for summary judgment.

The court dismissed the motion, finding multiple genuine issues requiring a trial, particularly concerning the identity of the author and the credibility of the parties.

The court declined to use enhanced fact-finding powers, holding that a trial was necessary to fully appreciate the voluminous and conflicting evidence.

Additionally, the court awarded $11,860 in costs to a former defendant against whom the action had been discontinued.

The parties separated after a 12.5-year marriage.

The applicant father sought shared parenting, sole decision-making responsibility, and the sale of the matrimonial home.

The respondent mother sought sole decision-making, exclusive possession of the home, and various financial claims.

The court ordered the immediate sale of the matrimonial home and granted the applicant sole decision-making responsibility due to the respondent's alienating conduct.

The court ordered an equal shared parenting schedule.

The court also resolved complex financial issues, including equalization of net family properties, post-separation adjustments, occupation rent, and retrospective and prospective child and spousal support.

The applicant was ordered to pay a net amount of $3,100 to the respondent after offsetting all financial claims.

The accused was charged with importing cocaine after arriving at Pearson Airport from Colombia.

He was referred to secondary inspection as a contraband target.

A border services officer searched his luggage and found cocaine in a rum bottle.

The accused brought a pre-trial motion to exclude his statements and the cocaine, alleging breaches of his Charter rights under ss. 7, 8, 10(a), and 10(b).

The court found that the accused was detained when the officer formed a strong and particularized suspicion, and that his s. 10 rights were breached by a subsequent question.

The court also found that the RCMP breached his s. 10(b) rights by failing to facilitate contact with a lawyer of his choosing.

Statements made after the breaches were excluded under s. 24(2), but the cocaine and earlier statements were admitted.