John S. Fregeau

The appellant was injured in a workplace accident and received WSIB benefits while retraining at an architectural firm.

He was subsequently injured in a motor vehicle accident, rendering him a paraplegic and unable to continue his retraining, which reduced his WSIB benefits.

He applied for income replacement benefits under the SABS, but his insurer denied the claim on the basis that he was not 'employed' at the time of the accident.

The Divisional Court allowed the appeal, finding that the Licence Appeal Tribunal erred in its interpretation of 'employed' by requiring an exchange of wages for services, and held that the appellant's employment relationship and receipt of employment-related income satisfied the statutory requirement.

The appellant mother appealed a motion judge's order varying child support and section 7 expenses.

The motion judge had found a material change in circumstances due to the children's refusal to accept transportation from the respondent father, and the eldest child's attendance at university combined with the appellant's failure to disclose funding sources.

The Divisional Court dismissed the appeal, finding no material error, misapprehension of evidence, or error in law in the motion judge's discretionary decisions, and rejected the appellant's claim of a reasonable apprehension of bias.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that dismissed his human rights application under s. 34(11) of the Human Rights Code due to a related civil action for wrongful dismissal.

The Divisional Court found the Tribunal's decision unreasonable because it failed to properly analyze the distinct factual underpinnings and time periods of the two proceedings.

The application for judicial review was granted, and the matter was remitted to the Tribunal for adjudication.

The applicant, an elected school trustee, sought judicial review of two Board decisions finding she breached the Trustees' Code of Conduct by disclosing confidential information and imposing 90-day meeting suspensions.

The Divisional Court dismissed the applications to quash the decisions, finding no breach of procedural fairness, no reasonable apprehension of bias, no Charter violations, and that the decisions were reasonable.

However, the court found the 90-day sanctions unreasonable as they appeared to rely on a new statutory regime not yet applicable, and varied the sanctions to the 38 days already served.

The appellant's children were brought to a place of safety by the Children's Aid Society.

The protection application was later withdrawn and the parties reached an agreement.

The appellant subsequently brought a motion for a declaration that the CAS acted unlawfully by not obtaining a warrant, and sought costs.

The motion judge declined to rule on the warrant issue and declined to order costs.

The appellant appealed.

The Divisional Court dismissed the appeal, finding no error in the motion judge's discretionary decision to decline declaratory relief or in her application of costs principles.

The appellant appealed a summary conviction for operating a conveyance with a blood alcohol concentration exceeding the legal limit, asserting misapprehension of evidence on identity, error in finding reasonable suspicion for an ASD demand, and invalid issuance of a production order for hospital records.

The appeal court held the trial record supported the inference that the appellant was the driver and found no reversible error on that issue.

Applying the totality-of-circumstances approach, the court upheld the finding of reasonable suspicion under the Criminal Code for the roadside screening demand.

Although the court accepted a limited misapprehension regarding a hospital-staff statement, it held the production order nonetheless validly issued on the ITO and permissible inferences, and declined exclusion under s. 24(2) of the Charter.

The appeal was dismissed and the prior stay of the driving prohibition was rescinded.

The applicants, property owners along Erie Shore Drive, appealed a decision of the Acting Drainage Referee regarding preliminary issues in their application for damages against the municipality for failing to maintain and repair the Burk Drainage Works.

The municipality cross-appealed the Referee's finding that section 79 of the Drainage Act is a strict liability provision.

The Divisional Court dismissed both appeals, upholding the Referee's findings that the applicants' initial notice was insufficient, that damages are limited to those occurring 45 days after proper notice is given, that historical seawalls had been lawfully replaced rather than abandoned, and that section 79 imposes strict liability without requiring proof of common law injurious affection.

This decision concerns a dispute over the legal and beneficial ownership of lands surrendered by several First Nations to Canada in 1908, known as the Unsold Surrendered Lands (USL), including the Point Park and associated roads in Fort Frances, Ontario.

The Town of Fort Frances sought summary judgment declaring it the owner of these lands or, alternatively, a public trust or entitlement to damages.

The First Nations, Canada, and Ontario opposed, seeking dismissal of the Town’s claims.

The court found that the Agency One Reserve was a validly created reserve, that the 1908 Order-in-Council (OIC) did not convey the USL to the Town by fee simple or public trust, and that the Town’s claims to the lands, roads, and damages were without merit.

The Town’s motion was dismissed, and the counterclaim struck.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her application for lack of jurisdiction.

The applicant alleged discrimination based on creed after her employment was terminated for failing to comply with a mandatory COVID-19 vaccination policy.

The Divisional Court held that the standard of review was reasonableness, found no denial of procedural fairness, and concluded that the Tribunal's determination that the applicant's singular belief against the vaccine did not constitute a 'creed' under the Human Rights Code was reasonable.

The application for judicial review was dismissed.

This decision concerns the prosecution of Archie McKay for five counts of first-degree murder following a fatal house fire in Kitchenuhkoosib Inninuwug, Ontario.

The court reviews extensive circumstantial evidence, including expert testimony, extrinsic misconduct, and ante-mortem statements, to determine whether McKay deliberately set the fire and possessed the requisite intent for murder.

The court finds McKay guilty of second-degree murder in relation to all five victims, concluding that the evidence does not establish planning and deliberation or criminal harassment necessary for first-degree murder.

This decision concerns a construction lien action that settled before trial.

The plaintiffs, trustees and agents for union members, registered a lien and commenced an action against the contractor and property owner.

After the underlying debt was paid, the property owner (Con-Form Holdings Limited) sought costs from the plaintiffs, arguing the lien was untimely and exaggerated.

The court dismissed Con-Form’s claim for costs, finding the plaintiffs’ actions were justified by the contractor’s default and that the validity and amount of the lien were never adjudicated.

The court ordered Con-Form to pay the plaintiffs $1,000 in costs for responding to the costs submissions.

The decision concerns a motion to strike brought by the City of Kenora and individual defendants against 5901058 Manitoba Ltd.'s action regarding a failed land development transaction.

The plaintiff alleged breach of contract, negligent misrepresentation, unjust enrichment, constructive taking, and misfeasance in public office after the City refused to sell municipal land as agreed, instead pursuing a sale to the Ontario Provincial Police.

The court dismissed most grounds for striking, allowing the plaintiff’s claims (except for misfeasance in public office) to proceed, finding they disclosed reasonable causes of action.

The court sentenced Jeremy Johnson for possession of fentanyl and cocaine for the purpose of trafficking, and simple possession of cocaine, following a jury verdict.

The decision reviews the facts, the offender’s background, the positions of Crown and defence, and the applicable case law, including the Supreme Court’s guidance in R. v. Parranto.

The court found significant aggravating factors, including the large quantity of fentanyl, and imposed a global sentence of 11 years and six months, with credits for pre-sentence custody and time spent on house arrest (Downes credit), resulting in a net sentence of 11 years’ incarceration.

Ancillary orders included a weapons prohibition, DNA order, and forfeiture of seized items.

The decision concerns a motion by the Estate Trustee, Chris Paju, to strike all or part of the respondent Jennifer Lindstrom’s objections to the Estate Accounts for the period March 16, 2022 to January 10, 2024.

The court found that many of Ms. Lindstrom’s objections were not responsive to the Second Accounts, repeated issues already addressed, or violated previous court orders.

The court ordered that non-compliant and irrelevant portions of Ms. Lindstrom’s objections be struck, and directed the moving party to file redacted objections.

Costs were awarded to the applicant, with directions for written submissions.

The accused, Daniel Blais, was charged with second degree murder in the death of Cody Bulmer but pled guilty to manslaughter.

The Crown and defence jointly submitted a sentencing range of five to eight years.

The court found the offence to be an "aggravated" manslaughter, accepting the Crown's position and imposing an eight-year sentence, less credit for pre-sentence custody and institutional lockdown (Duncan credit).

The decision reviews the facts, the impact on the victim's family, the offender's background, and relevant case law, and discusses aggravating and mitigating factors.

The applicant, Ronald Shiomi, sought a declaration that he was a dependant of the deceased, Anna Maria Tocheri, and that she failed to make adequate provision for his support under the Succession Law Reform Act.

The court found that after a 53-year common law relationship, the deceased’s will, which left the applicant only personal and household effects and the residue to five charities, did not make adequate provision for his support.

The court ordered that 50% of the net estate be paid to the applicant and the remaining 50% be divided among the five named charities.

The court also awarded the applicant $15,000 in costs, plus disbursements and HST, to be paid by the estate.

The accused was charged with sexual assault and touching a person under sixteen for a sexual purpose.

The Crown presented evidence from the complainant, her sister, and their father.

The court found beyond a reasonable doubt that the accused was the only adult who went upstairs and entered the complainant's bedroom.

However, due to significant inconsistencies in the child witnesses' testimony, particularly the complainant's cross-examination where she stated she did not feel a touch and only believed she was touched because others said so, the court found a reasonable doubt regarding whether the accused intentionally touched the complainant.

Consequently, the accused was acquitted on both counts.

The Crown applied to admit ante-mortem statements of the deceased, Geraldine Chapman, made to four individuals (Cheryl Meekis, Stewart Albany, Tom Chapman, Thyra Chapman) under the state of mind or principled exceptions to the hearsay rule in a first-degree murder trial.

The court assessed the relevance, necessity, and reliability of each set of statements.

Statements to Cheryl Meekis were ruled inadmissible due to lack of relevance and witness credibility issues.

Statements to Stewart Albany regarding fear/worry were admissible under the state of mind exception, while those alleging direct threats were inadmissible under the principled exception due to insufficient reliability.

Most statements to Tom Chapman were inadmissible, being deemed irrelevant or the witness's conclusions/biased interpretations.

Statements to Thyra Chapman regarding accusations of cheating and property damage were admissible under the principled exception, as their substantive reliability was established.

The Crown applied to admit three out-of-court statements made by three witnesses under the past recollection recorded exception to the hearsay rule during a trial for first-degree murder.

The statements included a police interview report and two sets of medical notes.

The court applied the four-part test for past recollection recorded, assessing reliability, timeliness, absence of memory, and present voucher for accuracy.

The court admitted the police statement with redactions and one set of medical notes in full, but excluded the psychiatric consult note due to reliability concerns regarding the source of the recorded information.

The applicant City sought judicial review of an arbitration award declaring September 19, 2022 (the day of mourning for Queen Elizabeth II) a paid holiday under the collective agreement.

The Divisional Court found the arbitrator's decision unreasonable because he failed to consider evidence of historical collective agreements and proclamations relevant to the City's estoppel argument.

However, the arbitrator's interpretation of the bilingual statutory instruments was reasonable.

The matter of estoppel was remitted to the same arbitrator for reconsideration.