Joseph M. Fragomeni

The accused applied for a stay of proceedings under ss. 11(b) and 24(1) of the Charter, alleging unreasonable delay between the laying of charges and the scheduled trial date.

The court applied the framework from R. v. Morin and assessed the total delay of approximately 36.5 months, subtracting periods attributable to defence waiver, inherent time requirements, and defence delay.

After these deductions, the net delay was calculated at approximately 18 months and one week.

The court found limited prejudice to the accused and emphasized the seriousness of the charges involving large-scale marijuana production.

Balancing the factors, the court concluded the delay did not warrant a stay of proceedings.

The moving party brought an urgent motion to change a prior consent order to prevent the primary residential parent from relocating with the parties’ children from Brampton to Barrie and sought appointment of the Office of the Children’s Lawyer.

The responding party had provided the 60‑day written notice of relocation required by the consent order and argued that no consent or court approval was required under its terms.

The court held that the order only required notice and imposed no geographic restriction on relocation.

On the evidentiary record, the proposed move would not materially alter the existing parenting schedule or constitute a sufficient basis for urgent relief.

The motion was dismissed, the request for the Office of the Children’s Lawyer was refused, and child support was temporarily reduced to reflect increased transportation costs.

Following dismissal of a motion seeking to exclude an expert engineering report and related remedial work evidence, the successful parties sought substantial indemnity costs of over $24,000.

The court considered whether the unsuccessful moving party’s conduct justified substantial indemnity costs and applied the discretionary factors under Rule 57.01(1) of the Rules of Civil Procedure.

While the motion was unsuccessful, the court found the conduct did not rise to the level warranting substantial indemnity costs.

Applying the overarching principle of reasonableness and guidance from appellate jurisprudence, the court fixed partial indemnity costs at a fair and reasonable amount.

Costs of $12,500 inclusive were awarded, payable within 30 days.

The offender was convicted of multiple serious drug offences, including importing cocaine and exporting ecstasy, as well as firearms offences.

At sentencing, the defence argued that the offender's difficult youth in a crime-ridden neighbourhood as an African Canadian should mitigate his sentence, analogous to the Gladue principles for Aboriginal offenders.

The court rejected this argument, finding no evidentiary link between his early childhood and his commercial drug enterprise at age 40.

Applying the totality principle, the court imposed a global sentence of 15 years, reduced by 6 years for pre-trial custody.

The plaintiff contractor brought a motion on the eve of trial seeking leave under Rule 48.04 of the Rules of Civil Procedure to bring a motion to exclude an engineering report and related evidence relied on by the defendants in their counterclaim concerning alleged construction deficiencies.

The moving party argued the report had been delivered late and that remedial work was completed before it had an opportunity to obtain its own expert inspection.

The court held that leave was not warranted because the action had already been set down for trial and the moving party failed to demonstrate a substantial or unexpected change in circumstances making the motion necessary in the interests of justice.

The evidence showed the moving party had long been aware of the report and remedial work, had opportunities to conduct inspections and obtain its own expert evidence, and delayed bringing the motion until shortly before trial.

In any event, the court held the relief sought would not be justified because the evidence could be addressed through cross‑examination and exclusion would cause greater prejudice to the opposing party.

The moving party sought an interim order for the recovery of commercial dishwashing equipment allegedly rented to a former tenant and located on premises owned by the responding parties, as well as an order transferring the action to the Small Claims Court.

Conflicting affidavit evidence raised issues regarding ownership of the equipment, alleged forgery of a landlord’s waiver, and whether the responding parties had sold the equipment to a subsequent tenant.

The court found that the evidentiary record disclosed serious factual disputes, including possible fraud, priority claims, and damages for lost rental income, none of which had been tested through cross-examination.

Given these unresolved issues, the court held that the matter required determination at trial.

The request for interim recovery and transfer to Small Claims Court was dismissed, and the action was permitted to continue under the simplified procedure.

The father brought a motion for interim joint custody and the mother brought a cross-motion to strike paragraphs from the father's affidavit that referred to an off-the-record settlement meeting.

The father argued that the best interests of the child trumped settlement privilege and that the mother negotiated in bad faith.

The court found no evidence of bad faith by the mother and emphasized the importance of protecting settlement privilege to encourage parties to resolve disputes without fear of prejudice.

The mother's cross-motion was granted, and the offending paragraphs were struck.

The applicant sought certiorari to quash his committal for trial on a charge of break, enter, and theft.

The sole evidence at the preliminary inquiry was a statement made by the applicant, which the preliminary inquiry justice ruled was voluntary and admissible.

The applicant argued this ruling was erroneous and amounted to a jurisdictional error because it was the only evidence.

The Superior Court dismissed the application, holding that the admission of the statement was an evidentiary ruling made within the justice's jurisdiction, and therefore not subject to review by certiorari, even if erroneous.

The applicant mother brought an urgent motion seeking a declaration that the child was habitually resident in Ontario, interim sole custody, and the child’s return from the United States after the respondent father refused to return the child following a visit.

The court considered the habitual residence provisions of the Children’s Law Reform Act and the principles governing interim custody, including the importance of maintaining the status quo and stability for the child.

The evidentiary record established that the child had lived primarily with the mother in Ontario since birth, with the father’s consent to extended visits in New York.

The father failed to file responding materials and did not attend the hearing.

The court held that Ontario had jurisdiction and granted interim sole custody to the mother with specified access to the father.

On a family law motion, the court made several temporary orders concerning child support, post-secondary education expenses, and the disposition of the matrimonial home.

The court ordered table child support based on the respondent’s income and required both parents to contribute proportionately to the child’s post-secondary expenses under s. 7 of the Federal Child Support Guidelines, with the child contributing a portion.

The court also directed that the matrimonial home be listed for sale and that the net proceeds be paid into court pending trial due to ongoing disputes regarding property interests and financial responsibilities.

Issues relating to spousal support and broader property claims were adjourned for later determination.

The moving party sought termination of child support, reimbursement of alleged child support overpayments, and adjustments relating to spousal support.

The court considered whether the adult child remained a "child of the marriage" where the child had not completed high school, had taken only a single correspondence course, and was not shown to be in full-time attendance at school or unable to work.

The court found the evidentiary record did not establish ongoing dependency and terminated child support retroactively, calculating overpayments from a later date to allow the child reasonable time after leaving school.

The court declined to impute income to the responding party despite a prolonged absence from the workforce due to age, health history, and efforts to seek employment.

Spousal support was fixed within the advisory guideline range and partially offset to repay the established child support overpayment.

The defendant physician brought a motion for summary judgment to dismiss a medical malpractice action, arguing it was statute-barred under the one-year limitation period in the Health Professions Procedural Code.

The defendant contended the plaintiffs knew or ought to have known of the claim in November 2003 when surgery was delayed.

The plaintiffs argued they did not discover the claim until April 2004 when they learned the cancer was terminal.

Applying the full appreciation test for summary judgment, the court found a genuine issue for trial regarding when the material facts were discovered, as the plaintiff's initial concerns about delay did not necessarily equate to knowledge of a cause of action.

The motion for summary judgment was dismissed.

The accused was charged with assault and sexual assault arising from an altercation with a former partner after an argument near a bus terminal.

The Crown alleged that the accused assaulted the complainant and then forced sexual intercourse after threatening to post intimate photos online, while the defence argued self‑defence during the physical confrontation and consensual sexual activity.

The court applied the credibility framework from R. v. W.D., finding the accused’s testimony unreliable but also identifying significant credibility and reliability concerns in the complainant’s evidence, including inconsistencies, a recantation letter, delayed disclosure of key allegations, and continued contact between the parties.

Given the conflicting evidence and the weaknesses in the Crown’s case, the court concluded that the Crown had not proven the offences beyond a reasonable doubt.

The accused was acquitted on both counts.

The plaintiff sought repayment of $17,000 allegedly loaned to the defendant, consisting of $5,000 in cash and a $12,000 certified cheque.

The defendant admitted receiving $12,000 but asserted it was a gift given during a troubled personal dynamic between the parties.

The court assessed credibility and surrounding circumstances, including the absence of written loan terms, inconsistent testimony about repayment timing, and evidence of prior harassment-related criminal proceedings involving the plaintiff.

The court concluded the plaintiff failed to prove on a balance of probabilities that the $5,000 was ever given or that the $12,000 constituted a loan rather than a gift.

The action was dismissed.

Following a successful motion by the defendant to enforce a settlement agreement dismissing the action without costs, the court determined the appropriate costs of the motion.

The court found the motion had been unnecessary because the plaintiff provided no affidavit evidence explaining or disputing the settlement offer made by counsel.

While the defendant sought higher costs, the court declined to award costs on a substantial indemnity basis.

Instead, costs were fixed on a partial indemnity scale.

The court ordered the plaintiff to pay the defendant $2,700 all-inclusive.

Following a family law motion concerning custody, access, sale of the matrimonial home, and child support contributions, the responding party sought costs.

The court considered the relative success of the parties, noting that the moving party had sought to change the child’s primary residence and obtain joint custody but was unsuccessful, while the responding party obtained sole custody and succeeded on other issues including childcare contributions.

The court also considered that the motion primarily concerned the child and that the moving party appeared motivated by a genuine desire to maintain a strong relationship with the child.

Balancing these factors and the financial obligations imposed by the underlying order, the court awarded partial indemnity costs rather than the full amount claimed.

The defendant brought a motion to enforce a settlement agreement and dismiss the plaintiff’s solicitor’s negligence action without costs.

The defendant argued that the plaintiff’s counsel had authority to offer a settlement dismissing the action without costs and that the defendant accepted the offer, but the plaintiff later refused to execute the consent dismissal.

The court applied the principles governing settlements reached by counsel and found that the plaintiff’s lawyer had authority to bind the client and that all essential terms of the settlement had been agreed upon.

The plaintiff provided no affidavit evidence disputing the instructions given to counsel or explaining why the settlement should not be enforced.

The court concluded that a binding settlement existed and ordered the action dismissed in accordance with the settlement.

In a family law motion involving custody, access, support, and property issues, the court considered conflicting affidavit evidence from both parties concerning the care of a young child and financial matters.

The court granted a temporary order awarding sole custody to the mother and expanded daytime access to the father, finding the arrangement consistent with the child’s best interests pending questioning and further disclosure.

The court also ordered the sale of the matrimonial home, directed that sale proceeds be held in trust, and required the father to provide access to the home for inspection and retrieval of personal belongings.

Existing child support and daycare contribution obligations were continued.

The order was expressly temporary and subject to revision after examinations and financial disclosure.

The applicant mother sought sole custody of the three children of the marriage, while the respondent father sought joint custody.

The trial also addressed child support and the division of matrimonial debt.

The court found that the parents could not communicate effectively enough to support a joint custody order, granting sole custody to the mother with specified access for the father.

The court also found the father to be underemployed, imputed his income at $45,000 for child support purposes, and ordered him to contribute $200 per month towards the equally divided matrimonial debt.

The tenant applied for declarations that the landlord’s termination of a commercial lease was unlawful and that the tenant was entitled to re-enter the premises.

After the fixed lease term expired, the tenant remained in possession due to delays relocating a medical clinic caused by regulatory inspections.

The landlord changed the locks and removed the tenant’s property, asserting that the lease had expired and vacant possession was required for a new tenant.

The court held that the lease’s overholding clause created a month-to-month tenancy when the tenant remained in possession after expiry.

Because the landlord had not provided proper notice to terminate the month-to-month tenancy and did not comply with the lease’s notice provisions, the landlord breached the lease by re-entering and removing the tenant’s property.