Joseph Di Luca

Crown sentence appeal from a decision rejecting a joint submission on sentence for operating a conveyance with a blood-alcohol concentration exceeding 80 mg per 100 ml of blood.

The sentencing judge declined the jointly submitted 60-day conditional sentence and instead imposed a $2,500 fine, finding the proposed sentence disproportionate.

The appeal court held the sentencing judge applied the wrong test by assessing fitness of sentence rather than the public interest test from R. v. Anthony-Cook, which requires that a joint submission only be rejected where it would bring the administration of justice into disrepute.

The appeal was allowed and the conditional sentence of imprisonment was imposed as originally jointly submitted.

A condominium developer brought an application under section 134(1) of the Condominium Act, 1998, seeking a declaration that unit owners had breached sections 117(2) and 119(4) of the Act by causing excessive noise that interfered with other owners' enjoyment of their property.

The applicant sought a cease and desist order and costs.

The respondents owned a residential unit where occupants were playing loud music at all hours.

Despite numerous verbal warnings, written notices, and Rules Infraction Notices issued over several months, the noise continued unabated.

The court found the respondents in breach and granted the requested orders, awarding costs of $7,500 on a scale between partial and full indemnity.

The defendant Dr. Akhravi brought a motion to dismiss the action for delay under Rule 24.01(2) of the Rules of Civil Procedure.

The action was commenced on December 22, 2017, almost eight years prior to the motion.

The plaintiffs, who were self-represented, had failed to properly serve Dr. Akhravi with an issued pleading and had taken no steps to advance the action.

The court found that the delay was inordinate, inexcusable, and prejudicial to the defendant, and granted the motion to dismiss.

The court also awarded costs of $5,000 all inclusive to Dr. Akhravi.

The applicants sought directions on whether Shannon Durno, the named estate trustee, should be removed or passed over, and whether Aleksandr Bolotenko should be appointed as the succeeding estate trustee.

The estate trustee was unwilling to continue acting.

One respondent opposed the appointment of Bolotenko on the basis of alleged conflict of interest.

The court found that Durno had intermeddled with the estate and could not renounce her position, and therefore removed her.

The court found no disqualifying conflict of interest and appointed Bolotenko as the succeeding estate trustee.

The applicant sought damages of $80,000 alleging that the respondent, a non-profit corporation administering a self-employment benefit program, failed to sell two seized dump trucks at fair market value following the applicant's default on a loan.

The respondent sold the trucks for $12,000 after they sat in a bailiff's yard for approximately one year.

The court dismissed the application on two grounds: first, the applicant's claim was barred by the Limitations Act, as he had knowledge of the sale price no later than June 2, 2022, and commenced the application on November 6, 2024; second, on the substantive merits, the respondent acted in good faith and took reasonable steps to obtain the best value possible.

The trucks required significant capital investment to comply with new regulations and were not commercially viable.

The court awarded costs of $10,000 on a partial indemnity basis, in addition to a prior costs order of $500.

A self-represented applicant, previously designated as a vexatious litigant, sought leave of the court to bring various proceedings relating to disputes with his landlord and the Landlord and Tenant Board.

The applicant sought to appeal a Landlord and Tenant Board decision, bring an application regarding a leaking air conditioning unit, and review how another application was being handled.

The court declined to grant leave, finding that the proposed proceedings had no prospect of success and amounted to an abuse of process.

The court noted that while vexatious litigants retain the opportunity to advance legitimate claims, the applicant failed to demonstrate reasonable grounds for the proposed proceedings.

The applicant, a designated vexatious litigant, sought leave to bring multiple motions for production of documents from the Crown, Ontario Provincial Police, and the Ministry of the Solicitor General relating to criminal charges that were subsequently withdrawn.

The court declined to grant leave, finding the proposed motions had no prospect of success and constituted an abuse of process.

The court also granted the respondent's motion to strike portions of the record containing criminal disclosure briefs that were filed in violation of the D.P. v. Wagg protocol.

The decision concerns a mortgage fraud prosecution.

The accused, Ananthie Alex, was charged with conspiracy to utter forged documents and with knowingly making a false statement in writing to obtain credit.

The court found that Alex conspired with Hans Lauro to obtain a mortgage in the name of Lauro’s mother using falsified income information, but acquitted her on the count of knowingly making a false statement in writing, citing insufficient evidence that a false document was actually submitted to the lender.

The judgment provides a detailed review of the co-conspirator’s exception to the hearsay rule and the Carter test for admissibility of evidence in conspiracy cases.

The court considered a motion by the defendant to strike portions of the plaintiff’s statement of claim in a wrongful dismissal action.

The impugned pleadings alleged similar acts of unsafe practices and unfair treatment of other employees.

The court held that these pleadings were relevant and not improper, as they provided context for the plaintiff’s claims and notice to the defendant.

The motion to strike was dismissed, and costs were awarded to the plaintiff.

The court considered whether the applicant, Gerry Tyndall, had a life interest in the property where he resided with the deceased, Gail Hill, pursuant to her will.

The court found that Mr. Tyndall had a life interest in the property, including the right of exclusive possession, subject to his responsibility for day-to-day expenses, while the estate was responsible for taxes, insurance, and capital improvements.

The decision also addressed the right to collect rent and the removal of other occupants.

The court considered a motion by Roberto Aguiar for an order declaring that a settlement was reached with Viele Professional Corporation and Frances M. Viele regarding an assessment of legal accounts.

The court found that a binding settlement was reached on or about November 19, 2024, for $15,000 and a tailored release, and that the settlement was thwarted by Ms. Viele’s insistence on the wording of the release.

The motion was granted, and the parties were directed to finalize the release and complete the settlement.

The accused, Yorcaef Jesus Rodriguez-Martinez, was charged with multiple offences including sexual assault causing bodily harm, choking with intent to enable or assist sexual assault, unlawfully entering a dwelling, and two counts of failing to comply with probation orders.

The complainant, BH, was unable to testify due to terminal illness, so her police statement and 911 call were admitted by consent.

The defence conceded the Crown had met its burden on all charges.

The court found the identification evidence, including eyewitness accounts, video surveillance, and DNA evidence, established beyond a reasonable doubt that the accused was the perpetrator.

The court entered convictions on all counts.

Zachary Gibson pleaded guilty to second-degree murder for the brutal killing of Michael Grawberger.

The court determined the period of parole ineligibility, which is set at 17 years, considering aggravating factors such as the brutal, planned nature of the attack, its domestic context, and the broad impact on victims, balanced against mitigating factors including the guilty plea, lack of criminal record, and rehabilitative potential.

The defendant, Daniel Lopez-Carter, was charged with being an accessory after the fact to murder.

The Crown alleged he assisted the perpetrator by disposing of the getaway vehicle (a stolen black Ford F150 pickup truck) the day after the murder.

The defence argued the Crown failed to prove guilt beyond a reasonable doubt and that the Crown's theory in its opening address was too specific.

The court found the defendant guilty, concluding that he knew of the murder, was involved in disposing of the vehicle (either by driving it or a support vehicle), and did so with the purpose of assisting the perpetrator to escape justice.

The court rejected the defence's "stealth particulars motion" argument, affirming that the Crown's opening address does not bind the prosecution to specific means if the essential elements are proven and no unfairness results.

The corporate defendant, Medical Respiratory Care Inc. (MRC), brought a Rule 21.01(1)(b) motion to strike the action against it, arguing the Statement of Claim disclosed no reasonable cause of action due to "conjunctive-disjunctive" pleading regarding the contract parties (Mr. Tiltack and/or MRC).

The plaintiff argued there was a live issue as to who the contracting party was.

The court dismissed the motion, finding the pleadings were not flawed given the ambiguity of the contract parties and that the motion was tactical.

Marianna Riossi, a high school teacher, pleaded guilty to sexual exploitation and sexual interference involving two students aged 15 and 16.

The court considered aggravating factors including breach of trust, lengthy duration, extensive sexual activity, manipulation, and significant victim impact.

Mitigating factors included a late guilty plea, no prior criminal record, pro-social life, family support, remorse, and strong rehabilitative prospects.

The court rejected a conditional sentence, emphasizing denunciation and deterrence for child sexual offenses.

A global sentence of four years imprisonment was imposed (two years consecutive for each count), along with a 20-year SOIRA order and a 5-year s. 161 order with specific prohibitions.

The appellant, Fazal Nagir, appealed his conviction for operating a motor vehicle while over 80, raising two grounds: a violation of his s. 10(b) right to counsel and an error by the trial judge in misapprehending evidence regarding mouth alcohol, leading to ss. 8 and 9 Charter violations.

The Superior Court of Justice dismissed the appeal, finding that police efforts to facilitate access to counsel were reasonable and diligent, and that the trial judge did not misapprehend evidence regarding mouth alcohol, thus upholding the reliability of the Approved Screening Device (ASD) test and the grounds for arrest.

The defendant, Tyrone Dwayne McEwan, was found guilty of human trafficking and related offences.

This decision provides reasons for his sentence.

The court first dismissed the Crown's motion to apply a mandatory minimum sentence for human trafficking, affirming that it had been struck down as unconstitutional based on horizontal stare decisis.

The court then sentenced the defendant, considering the high moral culpability due to the exploitation of a vulnerable victim and aggravating factors such as greed.

Mitigating factors included a difficult upbringing, family support, and rehabilitative potential.

Significant credit was granted for harsh pre-trial custody conditions and restrictive bail conditions.

The final sentence imposed was 5 years of incarceration for human trafficking, with concurrent sentences for other counts, resulting in an effective sentence of 2 years, 11 months, and 15 days after credits.

Ancillary orders included a non-communication order and a DNA order, while forfeiture of seized items and the victim surcharge were declined or waived.

The applicant, S.B., sought guardianship of her adult daughter, A.L., for both property and personal care under the Substitute Decisions Act.

A.L., diagnosed with Autism Spectrum Disorder, Bi-Polar II, and intellectual disabilities, was found by a capacity assessor to be incapable of managing her finances and personal care.

The court granted the guardianship orders, deeming it the least restrictive option given A.L.'s fixed and limited functioning.

However, the court denied S.B.'s request for a broad apprehension order under s. 59(3) of the Act, interpreting the provision as limited to specific instances rather than a general delegation of power.

The Office of the Public Guardian and Trustee was served and provided input on the proposed plans but took no position on the incapacity finding.

This is a costs decision following a successful summary judgment motion by Evangelia Karatzoglou ("Lisa") against Rosetta Commisso ("Rosa").

Lisa sought over $40,000 in costs, while Philip Karatzoglou ("Phil"), the applicant in the main action, sought over $18,000 in costs related to Rosa's claims against Lisa.

Rosa, who is impecunious, argued for no costs and that the amounts sought were excessive.

The court applied the Family Law Rules regarding costs, including the presumption of costs for the successful party and the impact of Rule 18 offers to settle.

The court balanced the factors, including the parties' conduct, offers to settle, and Rosa's financial predicament.