Joseph M. Fragomeni

The appellant appealed a conviction for refusing to provide a breath sample, arguing that police interrupted his consultation with duty counsel and thereby breached s. 10(b) of the Charter.

He submitted that the trial judge improperly relied on demeanour from a short video clip and failed to give adequate weight to his statement that he was 'not sure' when asked when the call had ended.

The appeal court held that the impugned findings were factual and credibility-based determinations entitled to deference absent palpable and overriding error.

Considering the totality of the evidence, including the video and the officer’s testimony, the court found no reviewable error and dismissed the appeal.

The tenants appealed an order of the Landlord and Tenant Board requiring them to pay rent arrears.

The tenants had vacated the rental unit before the end of their fixed-term tenancy without providing the required 60 days' notice.

The LTB found that the earliest the tenancy could have been terminated was the end of the fixed term, but limited the arrears to the date the landlord successfully re-rented the unit.

The Divisional Court found no error of law in the LTB's calculation of arrears or application of the rent deposit, and dismissed the appeal.

The accused was charged with uttering threats, use of an imitation firearm, forcible confinement, and extortion relating to two separate complainants in the context of business disputes.

The first complainant alleged the accused threatened him with a gun during a dispute over a commercial lease and retained property.

The second complainant alleged the accused held him at gunpoint and forced him to sign a multi-million dollar consulting agreement related to a real estate transaction.

The court found the testimony of both complainants to be unreliable and contradicted by other witnesses, including the accused's son and lawyer, as well as documentary evidence.

The Crown failed to prove the charges beyond a reasonable doubt, resulting in acquittals on all counts.

The plaintiff's motion for an interlocutory injunction was previously dismissed.

The successful defendants sought partial indemnity costs of $47,884.76.

The plaintiff argued that no costs should be awarded, or alternatively, that costs should be reserved to the trial judge or fixed at $20,000.

The court found no extraordinary circumstances to reserve costs to the trial judge and held that the defendants were entitled to their costs payable forthwith.

After reducing the amount claimed for cross-examinations due to potential duplication of work among three lawyers, the court fixed the defendants' partial indemnity costs at $40,000 inclusive.

The applicant mother sought child support in Ontario after the respondent father obtained a divorce and a nominal child support order in Egypt.

The respondent argued the Ontario court lacked jurisdiction because the applicant had attorned to the Egyptian court's jurisdiction.

The Superior Court of Justice found that the applicant did not voluntarily attorn to the Egyptian jurisdiction, as she was trapped there without financial support.

The court held that Ontario has jurisdiction to determine child support under the Family Law Act, as the child is habitually resident in Ontario and the Egyptian order of $85 per month offends public policy.

The defendants brought a motion to set aside a default judgment and the noting of default, arguing they were not properly served and lacked notice of the default proceedings and the uncontested trial.

They also asserted an arguable defence on the merits.

The court found the plaintiff failed to meet the onus of establishing proper service and did not follow the "better practice" of notifying the defendants of the default or the uncontested trial.

The court also determined that the defendants had an arguable defence with an "air of reality." The motion was granted, setting aside the default judgment and noting of default, lifting writs of seizure and sale, and granting leave for the defendants to file their Statement of Defence.

The Applicants, maternal grandparents, brought a motion for security for costs of $30,000 against the added party, Deesho Kaur Bains, the paternal grandmother.

Deesho was seeking to set aside a final consent order that required the child, Sareen, to be returned to Ontario from India, and to assert that India was the proper jurisdiction.

The child had been residing in India with Deesho for nearly four years after her father took her there without notice.

The court dismissed the motion for security for costs, emphasizing that in family litigation, the best interests of the child are paramount, and security for costs should only be granted in exceptional circumstances.

The court found Deesho's participation necessary and relevant to the child's best interests.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend and indemnify the insureds in an underlying slip and fall action.

The underlying plaintiff slipped on ice on the driveway of premises owned by the insureds, which also served as the head office for their business.

Applying the pleadings rule, the court found that the allegations in the statement of claim triggered coverage under both the applicant's homeowner policy and the respondent's commercial policy.

The court ordered both insurers to share the costs of defending the action equally.

The applicant landlord sought summary judgment for $152,101.29 in rent arrears, claiming the leased premises were larger than initially stated in the 10-year commercial lease.

The respondents, tenants, argued that the landlord was estopped from making the claim due to prior representations and that the claim was statute-barred.

The court dismissed the landlord's motion, finding that the landlord was estopped from pursuing the retroactive claim for arrears and that the claim was statute-barred, as the landlord had confirmed the initial square footage for over nine years of the lease term and failed to exercise its right to re-measure in a timely and reasonable manner.

The accused, a police officer, was charged with fraud over $5,000 for his role in an elaborate scheme that defrauded his brother of $750,000.

The scheme, orchestrated with the accused's girlfriend, involved a fake civil lawsuit, a fictitious trust fund, and a fabricated cancer diagnosis.

The accused claimed he was an innocent agent who believed his girlfriend's lies.

The court rejected his testimony, finding he actively participated in deceiving his brother and was, at the very least, wilfully blind to the numerous red flags.

The accused was found guilty.

The Appellant, Romain Landu, appealed his conviction for assault causing bodily harm.

He raised five grounds of appeal, including that the trial judge erred by reversing the burden of proof on self-defence, misapprehending material evidence, failing to consider significant inconsistencies in the complainant's testimony, applying different standards of scrutiny to the evidence, and concluding without evidence that the appellant was not in shock during a 911 call.

The appeal court dismissed all grounds, finding that the trial judge properly applied the burden of proof, made findings of fact entitled to deference, adequately addressed inconsistencies, and did not engage in uneven scrutiny or stereotypical thinking in assessing credibility.

Following a five-day family law trial regarding parenting time and decision-making authority, the successful applicant mother sought full indemnity costs of $148,019.00.

The respondent father argued the amount was excessive and proposed $25,000.00.

The court found that while the mother was successful and had made a comprehensive offer to settle, the father's conduct did not reach the high threshold of bad faith required for full indemnity costs.

The court determined the mother's claimed hours were excessive and awarded partial indemnity costs fixed at $80,000.00.

Following a jury conviction for sexual assault, the sentencing judge determined what facts could properly ground sentence under s. 724(2) of the Criminal Code.

The court held the Crown had not proven beyond a reasonable doubt the aggravating feature of sexual intercourse, given inconsistencies between the complainant's testimony and the prior consistent witness's evidence, and sentenced on the basis of one incident of touching in a car and one incident of touching in a basement.

Applying the modern sentencing approach to sexual offences against children, with primary emphasis on denunciation and deterrence under s. 718.01, the court rejected a conditional sentence and imposed 15 months' incarceration.

DNA, SOIRA, weapons prohibition, and non-communication orders were also made.

The accused was charged with three counts of assault against his wife and stepdaughter.

The allegations originated from a doctor's visit where bruises were observed on the child, leading to a CAS report and a videotaped police statement by the mother implicating the accused.

However, the mother subsequently recanted her statement multiple times, including during a 911 call, in an affidavit, and under oath at trial, claiming she had lied at the direction of her brother-in-law.

The child also testified that the injuries were accidental.

The court held that the unsworn police statement could not ground a conviction in light of the recantations and the lack of corroborating evidence.

The Crown failed to prove the charges beyond a reasonable doubt, resulting in acquittals on all counts.

The applicant sought to remove the respondent as the attorney for property and personal care for her father, alleging he lacked capacity to grant the power of attorney, that the respondent exercised undue influence, and that the respondent mismanaged his property and care.

The court found insufficient evidence to rebut the presumption of capacity or to establish undue influence.

The court also found no strong and compelling evidence of misconduct or neglect by the respondent to justify terminating the valid power of attorney.

The application was dismissed.

The applicant mortgagor challenged various fees included in two mortgage discharge statements provided by the respondent mortgagees.

The court disallowed the renewal fees, finding no evidence of an agreement to renew.

The court also struck the NSF and late payment administration fees, ruling they constituted unlawful penalties under section 8 of the Interest Act as there was no evidence they reflected actual administrative costs.

The legal and power of sale fees were referred to an Assessment Officer under the Mortgages Act.

The parties separated after 14 years of marriage and engaged in high-conflict litigation over parenting time and decision-making for their 12-year-old child.

The father sought joint decision-making and expanded parenting time, including overnights.

The mother sought sole decision-making and restricted daytime parenting time for the father.

The Office of the Children's Lawyer investigated and found the child strongly opposed overnight visits due to the father's behaviour and conflict.

The court gave significant weight to the child's independent views and preferences, awarding the mother sole decision-making and restricting the father's parenting time to daytime visits.

The client, Hui Yu, brought a motion seeking the production of his entire file and his daughter's entire file from his former lawyers, Gluckstein Personal Injury Lawyers P.C. The motion was brought in the context of an upcoming motion regarding the sufficiency of the lawyers' retainer and appropriate fees.

The client argued he needed the files to assess potential double billing and an extra fee charged on his daughter's file.

The lawyers opposed the request, arguing it was disproportionate, irrelevant, and an abuse of process.

The court granted the motion, finding that the files belonged to the client and that he was entitled to review them to determine relevancy and assess the fees charged.

The accused was tried on charges of sexual assault and sexual touching of a complainant under sixteen arising from alleged incidents in a family home.

The court assessed the complainant’s evidence, incomplete text-message and audio-recording evidence, the evidence of the complainant’s boyfriend and mother, and the accused’s denial under the W.D. framework.

The court found significant concerns arising from incomplete or missing evidence, credibility and reliability problems in key Crown evidence, and transcript disputes concerning recorded calls.

Applying the criminal burden of proof, the court held that the evidence left a reasonable doubt and entered findings of not guilty on both counts.

In an uncontested trial following the striking of the father's pleadings for failure to provide financial disclosure, the mother sought to impute income to the father and fix child support arrears.

The court imputed the father's income at $120,000 retroactive to 2010 based on his personal and corporate tax returns and significant credit card expenses.

Child support arrears were fixed at $49,728.00.

The court also considered ongoing support for the parties' 20-year-old son, who was earning approximately $26,400 annually as an apprentice electrician.

Applying section 3(2) of the Child Support Guidelines, the court found the son's income was sufficient to meet his needs and terminated ongoing child support effective April 1, 2019.