Daniel S. Freudman

The defendant, Balwinderjit Singh, brought a motion to set aside a default judgment issued against him in 2015 by The Toronto-Dominion Bank (TD Bank) for an alleged credit card debt.

Singh claimed he was unaware of the judgment until June 2022 and argued the debt arose from unauthorized fraudulent transactions.

The court dismissed the motion, finding Singh's explanation for his default implausible given evidence of prior communications and garnishments, and concluding that his proposed defence lacked an "air of reality" due to insufficient particulars.

This is an appeal concerning an insurer's duty to defend.

The appellant, found not criminally responsible for an assault due to a psychotic episode, sought coverage under his homeowner's policy.

The insurer denied coverage based on an exclusion for bodily harm arising from intentional or criminal acts.

The application judge found the negligence claim derivative of an intentional tort and that the exclusion applied.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion that the true nature of the claim was an intentional act, despite the appellant's mental state, thus affirming the applicability of the exclusion clause.

The offenders were convicted of possession of cocaine for the purpose of trafficking and possession of proceeds of crime after police found nearly half a kilogram of cocaine and over $5,000 in cash in their vehicle.

The Crown sought 4 to 5 years imprisonment, while the defence sought conditional sentences or 8 to 12 months imprisonment.

The court emphasized denunciation and deterrence for commercial drug trafficking and sentenced both offenders to 3.5 years imprisonment, less credit for pre-sentence custody and strict bail conditions.

The accused were charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime after police discovered over 470 grams of cocaine and significant cash in their vehicle.

The Crown relied entirely on circumstantial evidence, including the location of the drugs, the large amount of cash in plain view, and the accused's behaviour during the police stop.

The court applied the Villaroman test for circumstantial evidence and concluded that the only reasonable inference was that both accused had knowledge and control of the drugs and money.

Both accused were found guilty on all counts.

The applicant, who was found Not Criminally Responsible (NCR) for an aggravated assault due to schizophrenia, sought a declaration that his insurer owed a duty to defend him in a civil action brought by the victim.

The victim's claim was framed in negligence.

The court found that the negligence claim was derivative of the intentional tort of assault.

Furthermore, the court held that despite the NCR finding, the applicant's actions were both intentional and criminal within the meaning of the insurance policy's exclusion clauses.

The application was dismissed, and the insurer was found to have no duty to defend.

The appellant appealed a Superior Court decision that dismissed her action for lack of subject matter jurisdiction and struck her pleadings as frivolous, scandalous, and vexatious.

The core of her claim concerned how her insurer handled her statutory accident benefits claims, alleging a conspiracy with healthcare practitioners to stage examinations and produce false reports, and breach of privacy.

The Court of Appeal affirmed the motion judge's finding that the Licence Appeal Tribunal has exclusive jurisdiction over disputes related to statutory accident benefits under s. 280 of the Insurance Act, regardless of how the claims are framed.

The Court also upheld the denial of leave to amend pleadings and dismissed the appeal regarding costs due to procedural non-compliance and lack of error in principle.

The plaintiffs brought a motion for summary judgment against the defendant guarantor for repayment of a $1,000,000 loan.

The defendants denied borrowing the money, alleging the loan agreement was forged and that the funds were held in trust and disbursed in cash to third parties pursuant to a promissory note.

The court found the evidentiary record from both parties to be deficient, with missing emails, text messages, and financial records, and significant credibility issues on both sides.

The motion for summary judgment was dismissed as the court could not make the necessary findings of fact to achieve a fair and just result without a trial.

Following the successful dismissal of the plaintiff's action on a motion to strike, the defendants sought costs on a substantial indemnity basis and requested that the costs be paid personally by the plaintiff's lawyers.

The defendants argued that the plaintiff lacked the mental capacity to instruct her counsel to commence the action.

The court rejected the request for substantial indemnity and personal costs, noting that if the defendants genuinely believed the plaintiff was under a disability, they should have sought the appointment of a litigation guardian or challenged the lawyers' authority under the Rules of Civil Procedure.

Costs were awarded to the defendants on a partial indemnity basis.

The appellant insurer appealed a decision finding it had a duty to defend the respondent kickboxing academy in an action commenced by a student.

The student alleged she was sexually assaulted by the respondent's co-owner on a return flight from a competition, and claimed the respondent was negligent in failing to supervise her.

The commercial general liability policy excluded claims arising directly or indirectly from abuse.

The Court of Appeal allowed the appeal, finding that the only claim in the statement of claim arose from the sexual abuse incident, which was clearly excluded from coverage under the policy.

The insurer had no duty to defend.

The plaintiffs, including a software partnership and its investors, brought an action against the Canada Revenue Agency and its agents for negligent investigation, misfeasance in public office, and Charter breaches arising from a tax audit and subsequent criminal investigation into a suspected tax shelter fraud.

The court dismissed the action, finding that the auditor did not cross the line into a criminal investigation improperly, and that the investigators met the standard of care.

The court concluded there was substantial evidence supporting the CRA's belief that the enterprise was a fraudulent tax scheme, and no actionable wrongs were committed by the defendants.

During an abbreviated civil trial for negligent investigation against the Canada Revenue Agency, the defendants sought to introduce transcripts of testimony given by a now-deceased CRA auditor during a prior criminal preliminary inquiry.

The plaintiffs objected on the basis of hearsay.

The court applied the principled exception to the hearsay rule, finding that the necessity criterion was met due to the auditor's death, and the reliability criterion was satisfied because the auditor had been rigorously cross-examined on relevant issues during the preliminary inquiry.

The transcripts were ruled admissible.

The applicant kickboxing gym sought a declaration that its insurer had a duty to defend and indemnify it in an underlying action.

The underlying action alleged that an employee of the gym sexually assaulted a plaintiff, and that the gym was liable for negligent supervision.

The insurer denied coverage based on an abuse exclusion clause.

The court found that while the abuse exclusion applied to negligence arising directly from the assault, the pleadings also alleged broader negligent supervision that could fall outside the exclusion.

Applying the principle that the mere possibility of coverage triggers the duty to defend, the court ordered the insurer to defend the gym, but held that the duty to indemnify was premature.

The Crown sought full forfeiture of a $75,000 recognizance against an offender and two sureties following the offender's conviction for breaching bail conditions, including house arrest and a no-contact order with a specific individual.

The sureties argued for a lesser amount.

The court considered factors such as the sureties' diligence, financial means, and the duration of the breach, ultimately ordering partial forfeiture amounts for the offender and each surety.

Following a successful forfeiture application under the Civil Remedies Act, 2001, the Attorney General of Ontario sought costs of $15,443.51 on a partial indemnity basis.

The Interested Party, Eric Mahama, did not oppose the costs claim.

The court found the requested costs to be fair and reasonable, considering the four-year duration of the forfeiture application and the contested nature of the original proceeding.

The full amount of costs claimed by the Attorney General was granted.

The Attorney General of Ontario applied for a forfeiture order under the Civil Remedies Act, 2001, seeking to forfeit $75,613 in Canadian currency and $1,734 in U.S. currency seized during a police search.

The currency was found in an apartment along with significant quantities of marihuana and crack cocaine, and drug paraphernalia.

The interested party, Eric Mahama, claimed the money was his life savings from lawful activities, stored at the apartment due to his mother's dementia.

The court found, on a balance of probabilities, that the seized currency constituted both proceeds and an instrument of unlawful activity (drug trafficking), rejecting Mahama's explanation as not credible.

The application for forfeiture was granted.

The Crown charged the defendant with operating a motor vehicle while his ability to do so was impaired by drugs on March 31, 2015.

The defendant had consumed multiple prescription medications including OxyNEO, Oxycodone, Clonazepam, and Gabapentin.

An off-duty officer observed erratic driving and called for assistance.

At the roadside, officers observed symptoms consistent with drug impairment.

A Drug Recognition Evaluator conducted Standard Field Sobriety Tests and a Drug Recognition Evaluation at the police station.

A urinalysis detected narcotic analgesics and benzodiazepines.

The defendant argued Charter breaches regarding the timing of the demand for field sobriety tests and the delay in providing rights to counsel.

The court found a technical breach of section 10(b) Charter rights but excluded no evidence under section 24(2).

The court convicted the defendant, finding that his ability to operate a motor vehicle was impaired by prescription drugs and that he possessed the requisite mens rea.

The Attorney General appealed a decision ordering the full forfeiture of $29,900 in seized cash under the Civil Remedies Act, 2001, despite the parties reaching a settlement to return $4,000 to the claimant.

The Divisional Court dismissed the appeal, holding that proceedings under the Act are in rem and affect the world at large, meaning the court cannot simply rubber-stamp a settlement.

Because the cash was found to be proceeds of unlawful activity and there was no evidence establishing the claimant as the legitimate owner, mandatory forfeiture of the entire amount was required under section 3(1) of the Act.

The Attorney General applied for civil forfeiture of $29,900 found in an abandoned suitcase.

The claimant asserted ownership of the cash.

The parties reached a settlement to forfeit $25,900 and return $4,000 to the claimant.

The court found the cash was the proceeds of unlawful activity and the claimant failed to prove legitimate ownership.

The court refused to give effect to the settlement, holding that Rule 49 is not an independent basis for an order under the Civil Remedies Act, and ordered the entire $29,900 forfeited to the Crown.

The applicant sought a conditional stay of proceedings pending the appointment of state-funded counsel, arguing indigence and the necessity of counsel for a fair trial given the serious and complex charges.

The Crown opposed, alleging lack of financial transparency and prudence.

The court dismissed the application, finding that the applicant failed to discharge the heavy burden of proving indigence, having not provided sufficient financial documentation, made reasonable sacrifices, or prioritized legal fees over other expenditures.

The accused was charged with operating a motor vehicle while impaired by a drug contrary to section 253(1)(a) of the Criminal Code.

She was pulled over after being observed swerving within her lane.

A drug recognition evaluation was conducted, and a urine sample was obtained which tested positive for GHB, 7-Aminoclonazepam, methamphetamine, and amphetamine.

The Crown relied on observations of the accused's driving, her performance on the drug evaluation test, and toxicology evidence to establish impairment.

The court acquitted the accused, finding that while the circumstances were suspicious, the Crown had not proven beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by a drug at the time of driving.