John S. Fregeau

The defendants, Cushman & Wakefield Ltd. and Danny Ip, brought a motion for summary judgment to dismiss claims of negligent misrepresentation and breach of contract by Foremost Mortgage Holding Corporation (FMHC).

FMHC, a wholly-owned subsidiary of Foremost Financial Corp. (FFC), relied on an appraisal report prepared by the defendants for mortgage financing.

The appraisal and a subsequent reliance letter explicitly authorized only FFC (and initially CTC Bank of Canada) to rely on it, with clear limiting language.

The court found that FFC and FMHC are separate legal entities and that the defendants did not owe a duty of care to FMHC, as FMHC was not an authorized party to rely on the appraisal.

Consequently, FMHC's claims for breach of contract and negligent misrepresentation were dismissed.

The plaintiff sought summary judgment for assault and battery against a dentist and vicarious liability against his professional corporation.

The defendants admitted liability for assault and vicarious liability but disputed battery and the quantum of damages.

The court found insufficient evidence to establish direct physical contact for battery, thus dismissing that claim.

However, the court granted summary judgment for assault and vicarious liability, awarding damages for the plaintiff's pain and suffering.

The accused, Allan Yerxa, was charged with manslaughter for the stabbing death of George Tait.

The Crown's case relied primarily on the accused's out-of-court statements, including text messages and a police interview where he confessed to stabbing the victim twice.

The defence argued that the confession was unreliable due to inconsistencies (victim suffered seven stab wounds, not two), lack of independent corroborating evidence (no eyewitness, video, cell phone, or forensic evidence placing the accused at the scene), and the accused's vulnerability during the interview.

The defence also raised self-defence as an alternative.

The court found that the Crown failed to prove the truthfulness of the inculpatory portion of the accused's confession beyond a reasonable doubt, citing the significant inconsistencies and the complete absence of independent corroborating evidence.

The court also noted the presence of other individuals with a propensity for violence who were in the vicinity at the time of the stabbing.

Consequently, the accused was found not guilty.

In the alternative, the court also found that if the confession were accepted as truthful, the accused's actions could be considered self-defence given the victim's size, intoxication, and initial aggression.

The accused sought a bail review under s. 520 of the Criminal Code, challenging a detention order made on primary, secondary, and tertiary grounds.

The accused argued the Justice of the Peace erred in law and that the COVID-19 pandemic constituted a material change in circumstances.

The proposed release plan included residing with his mother under house arrest and reporting to the Indigenous Bail Verification and Supervision Program and Dryden Police Service.

The Crown opposed, arguing no error in law or material change.

The court found no error in the original detention order and, while acknowledging COVID-19 as a potential material change, determined that in this specific case, without medical evidence of increased risk to the accused and considering the serious charges and the accused's criminal record, detention remained necessary to maintain confidence in the administration of justice.

The application for bail review was dismissed.

The applicants sought judicial review of a work permit issued by the Ministry of Natural Resources and Forestry (MNRF) to the Michauds for the construction of a dock, walkway, and parking area on their property, which was a former gold mine site.

The applicants also sought an interim order to stay the permit and enjoin further development and use of the completed dock, citing environmental concerns and commercial use inconsistencies with the Clearwater Bay Restricted Area Order.

The court applied the three-part RJR-MacDonald test for an interlocutory injunction.

The court found no serious issue to be tried regarding the construction of the shed and the overall judicial review application, deeming it frivolous and vexatious.

Furthermore, the court determined that the applicants would not suffer irreparable harm from the interim use of the dock and that the balance of inconvenience favored denying the injunction.

The motion for an interim order was dismissed, and the application was to be transferred to the Divisional Court after costs were determined.

This endorsement concerns the costs of a previous motion where Canadian Lakehead Exhibition (CLE) sought further documentary discovery from 1723022 Ontario Ltd. General Partner of TheSportsdome Limited Partnership (Sportsdome).

The court found mixed success on the underlying motion, with CLE being "more successful" but both parties contributing to the motion's length due to CLE's overly broad initial requests and Sportsdome's uncooperative stance.

Applying principles of reasonableness and proportionality, the court fixed costs at $1500.00, to be paid by Sportsdome to CLE, significantly less than CLE's requested $5,165.33.

The applicant sought to vary conditions of judicial interim release, specifically regarding residency, curfew, and surety accompaniment, citing material changes in circumstances such as his parents' planned vacation and his spouse's new shift-based employment.

The respondent opposed, arguing no material change had occurred.

The court, applying criteria derived from R. v. St. Cloud, found that the applicant failed to establish a material change in circumstances, as the proposed changes were either foreseeable or discretionary.

Consequently, the application to vary the conditions was largely dismissed, with only a minor variation agreed upon by consent to allow for court attendance.

The applicants, Michael and Patrick Berrey, as estate trustees for the estates of Keith Bertram Berrey and Claire Yvonne Berrey, brought applications to pass accounts for both estates and to remove Dale Victor Berrey as an estate trustee.

Dale Victor Berrey, also an estate trustee, filed objections to the accounts and refused to consent to the payment of outstanding Canada Revenue Agency (CRA) debts, causing significant delays and accruing interest and penalties.

The court dismissed Dale's request for an adjournment, rejected most of his objections to the estate accounts, ordered the payment of CRA debts from trust funds, and removed Dale Victor Berrey as estate trustee for both estates due to his uncooperative conduct and breach of fiduciary duty.

Costs were awarded against Dale personally and partially from the estates.

The accused, an Aboriginal first offender, pleaded guilty to three counts of assault and one count of sexual assault against his common-law spouse.

The sentencing judge considered aggravating factors, including the repetitive nature of the domestic violence and sexual assault, and mitigating factors such as the accused's youth, remorse, strong work history, and Gladue factors.

The Crown sought a sentence of two years less a day, while the defence sought 15 months.

The court imposed a total custodial sentence of 20 months, followed by three years of probation with conditions including counselling for domestic violence and sexual offending, a no-contact order, DNA order, Sex Offender Information Registration, restitution, and a weapons prohibition.

The accused was charged with sexual assault and sexual touching of the complainant, his 15-year-old cousin.

The complainant testified to being intoxicated and sexually assaulted in the accused's van, experiencing pain in her genital and anal areas.

The accused denied the allegations, providing inconsistent alibi evidence and speculative explanations for the presence of his semen in the complainant's rectal cavity.

The court found the accused's testimony unreliable and his explanations incredible, accepting the complainant's corroborated evidence, including DNA analysis confirming the accused's semen in her rectal cavity.

The accused was found guilty on both counts.

The court determined costs following a 20-day trial concerning the ownership of a two-chain strip of land adjacent to the Agency One Reserve.

The plaintiffs, a group of First Nations, were largely unsuccessful in their claim for a declaration of ownership but succeeded on a threshold res judicata issue.

The Corporation of the Town of Fort Frances, a defendant, sought partial indemnity costs from the plaintiffs.

The court rejected the plaintiffs' argument that they were public interest litigants and that costs should be waived or deferred, finding their claim had significant proprietary and financial interests.

While acknowledging the Crown's role in the historical uncertainty, the court found no compelling policy reason to relieve the plaintiffs of costs in relation to Fort Frances, which was not a Crown authority.

The court fixed costs for Fort Frances, reducing a specific expert disbursement.

The applicants, Garner Belcourt and Cody Degirolamo, brought a motion alleging a violation of their s. 11(b) Charter right to trial within a reasonable time, applying the framework from R. v. Jordan.

The total delay was 39.5 months.

The court deducted 5.7 months for defence delay and 5.9 months for discrete exceptional circumstances (new information, extended preliminary inquiry), resulting in a net delay of 27.9 months, which is below the 30-month presumptive ceiling for Superior Court cases.

The applicants failed to demonstrate that they took meaningful and sustained steps to expedite proceedings, thus failing to discharge the onus to prove the remaining delay was unreasonable.

The applications were dismissed.

The defendant, Travis Garth Gordon, pleaded guilty to participating in a criminal organization for drug trafficking purposes, contrary to s. 467.11(1) of the Criminal Code.

This offence was predicated on earlier convictions for trafficking oxycodone and possession of proceeds of crime.

The Crown sought 6-9 months incarceration, while the defence argued for a conditional sentence of 6 months, citing the defendant's significant positive lifestyle changes, steady employment, stable family life, and abstinence from illicit drugs over four years.

The court considered denunciation and deterrence as primary sentencing objectives.

While acknowledging the defendant's rehabilitation, the court found a conditional sentence inappropriate due to the problematic nature of supervision and enforcement given the defendant's potential need to work out of province.

A four-month period of incarceration was imposed.

The defendant, Connie Rose Gordon, was charged with intentionally or recklessly causing damage by fire to the Voyageur Inn Motel, resulting in bodily harm to Dallas Jason Bluebird, contrary to section 433(b) of the Criminal Code of Canada.

The Crown's case was entirely circumstantial, relying on eyewitness identifications, threats made by the defendant, her movements before and after the fire, and the purchase of a gas can.

The defendant denied involvement, challenging the identifications and witness testimonies.

The court found the defendant's testimony not credible and, based on the overwhelming circumstantial evidence, concluded that the defendant's guilt was the only reasonable inference.

The defendant was found guilty.

This medical malpractice action concerned whether Dr. Henry Fairley breached the standard of care by performing a hysterectomy on Francine Breton in 2010, five years after a previous subtotal hysterectomy by another doctor.

The plaintiff alleged the surgery was unnecessary and resulted in a bladder injury.

The court found that Dr. Fairley had a reasonable clinical basis to proceed with the surgery, based on the plaintiff's persistent symptoms, imaging reports suggesting residual uterine tissue, and the previous pathology report confirming adenomyosis.

The court dismissed the plaintiff's action, concluding that Dr. Fairley met the standard of care.

The defendant, Luigi Trinchi, facing a seven-count indictment for distributing fake emails with nude photographs, sought to admit third-party suspect evidence implicating Ms. Donna Bardy.

The Crown opposed the admission of this evidence during the trial.

The court applied the test for admissibility of third-party suspect evidence, requiring the defence to demonstrate a sufficient connection between the third party and the crime, showing motive, opportunity, and propensity.

The court found that the defendant met the evidential burden, ruling the evidence admissible for the trial proper.

Following a matrimonial settlement requiring the transfer of a specified lump sum from the respondent’s pension to the applicant, the applicant sought an order requiring the payment of interest on the transferred amount.

The court considered the statutory scheme under the Pension Benefits Act and related regulations governing transfers of pension value following marriage breakdown.

It held that interest is automatically added only where a transfer is expressed as a percentage of the imputed value of the pension, not where the transfer is expressed as a fixed specified amount.

Because the final consent order required the transfer of a specified amount and contained no provision for interest, the pension plan administrator had no authority to add interest.

The applicant’s request to compel payment of interest was therefore dismissed.

Police services applied to quash subpoenas duces tecum issued by a preliminary inquiry judge compelling production of police policy directives governing confidential informants.

The subpoenas were issued after the Crown had refused defence disclosure requests for the documents on grounds of irrelevance and informer privilege.

The Superior Court held that a preliminary inquiry judge lacks jurisdiction to determine disclosure applications, whether framed as first-party disclosure under Stinchcombe/McNeil or third-party production under O'Connor.

By issuing subpoenas that effectively compelled production of materials the Crown had declined to disclose and which were arguably held by third parties, the preliminary inquiry judge exceeded his jurisdiction.

The subpoenas were therefore quashed.

The applicant brought a summary judgment motion in a family law proceeding after the respondent failed to file an Answer despite being ordered to do so at a case conference.

The court found there was no genuine issue requiring a trial on custody, support, or related financial matters.

The applicant, who had always been the primary caregiver, was granted sole custody, with the order silent as to access due to the respondent’s lack of involvement.

Child support was ordered in the amount of $1,734 per month based on the respondent’s income, along with proportionate contribution to section 7 expenses, annual financial disclosure obligations, and designation of the children as beneficiaries under employment benefits and life insurance.

Costs of $2,500 were also awarded to the applicant.

Decision on costs following motions by two defendants seeking leave to appeal an interlocutory order permitting the plaintiff to examine a key witness before trial under Rule 36.01(2) of the Rules of Civil Procedure.

The defendants sought over $28,000 in partial indemnity costs after obtaining leave to appeal, arguing the motion involved complex jurisdictional questions and issues of broader importance.

The plaintiff argued the claimed hours and duplication of work by multiple counsel were excessive and that success on the motion was partially divided.

Applying the discretionary framework under s. 131 of the Courts of Justice Act and Rule 57.01, the court held the claimed costs were excessive for a short motion and reduced the award significantly.

The court fixed costs of $3,000 to each of the two successful defendants payable by the plaintiff.