Joseph M. Fragomeni

In a shareholder oppression dispute involving the transfer of a restaurant business into related corporations after an earlier court order, the responding party commenced a second application while an appeal from an interlocutory order remained pending.

The moving respondents sought a stay, conversion to an action, security for costs, and substantial indemnity costs.

The court declined to grant that relief immediately and instead adjourned the motion until after the Divisional Court appeal, while imposing preservation and non-disposition terms to protect the responding party's interests.

Costs were reserved.

On a Garofoli review motion, the applicants sought leave to cross-examine the affiant on three Part VI authorizations arising from a robbery and homicide investigation.

The court reviewed the governing principles from Garofoli and Pires and held that there is no automatic right to cross-examine a wiretap affiant, but leave should be granted where there is a reasonable likelihood the questioning will assist the court on a material issue bearing on the authorization's validity.

Given the proposed areas of inquiry concerning the state agent, other suspects, and investigative omissions, the court found an evidentiary foundation sufficient to meet the threshold.

Leave was granted, limited to the questions identified in the applicants' factum.

In a murder jury trial, the Crown brought mid-trial applications to adduce bad character evidence against two accused after cross-examination of a Vetrovec witness.

The court held that defence counsel had not put either accused's character in issue by vigorously challenging the Crown witness's credibility, criminal lifestyle, planning role, or motive, particularly where much of that material had already been elicited in chief.

Applying the governing bad character principles, the proposed DNA, youth record, intercepted communications, firearms evidence, and criminal record evidence were all inadmissible propensity evidence whose prejudicial effect outweighed any probative value.

The timing of the applications also created unfairness because defence cross-examinations had been conducted in reliance on earlier evidentiary rulings and agreed redactions.

The applicants sought to quash Part VI authorizations arising from a homicide and robbery investigation, alleging the affiant failed to make full, fair, and frank disclosure regarding a state agent, a related firearms investigation, and inquiries into another suspect.

Applying the Garofoli line of authority, the court held the informations to obtain had to be assessed holistically and not by piecemeal dissection, and that the alleged omissions and inaccuracies did not undermine the existence of sufficient grounds for the authorizations.

One category of bad character intercept material concerning unrelated firearms was held to be excisable, but the remaining record still supported issuance.

In the alternative, applying Grant, the court held any breach would not justify exclusion because the police acted in good faith, the privacy impact did not warrant exclusion on these facts, and society’s interest in adjudication on the merits was high.

In a jury trial, one accused sought editing of an intercepted communication containing inculpatory remarks by a co-accused.

The court accepted that the intercept was admissible only against the declarant but held the impugned passage was highly probative against that accused and that any prejudice to the moving accused could be adequately managed through clear and emphatic limiting instructions.

Applying the authorities on editing co-accused statements, the court found the probative value outweighed the prejudicial effect and that editing risked distorting the meaning and flow of the evidence.

The application was dismissed.

In a murder prosecution arising from a fatal shooting during a robbery at an illegal poker tournament, the moving party sought exclusion of DNA evidence found on a revolver that was not the murder weapon.

The Crown argued the evidence linked the moving party to the person controlling a cache of firearms that included the murder weapon and corroborated a Vetrovec witness.

The court held the inferential gap was too large because the DNA showed only that the moving party touched or handled the revolver at an unknown time and under unknown circumstances, and the revolver was found in a separate locker.

The evidence carried a real risk of impermissible propensity reasoning and its prejudicial effect outweighed its limited probative value.

The application to exclude the DNA evidence was granted.

The applicants sought a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging their right to trial within a reasonable time under s. 11(b) had been breached.

The case involved charges of kidnapping, extortion, and assault arising from a violent abduction.

The court conducted a detailed Morin analysis of delay, allocating periods to inherent requirements, defence delay, institutional delay, and Crown delay, including delay caused by a mistrial following disclosure failures.

The court determined that total Crown and institutional delay amounted to approximately 14 months and 27 days, falling within the Morin guidelines.

Although some prejudice was established, it did not reach the level required to justify a constitutional remedy, and the seriousness of the offences weighed strongly in favour of a trial on the merits.

The defendant brought a motion to enforce a settlement under Rule 49.09 of the Rules of Civil Procedure and to obtain court approval of an infant settlement under Rule 7.08.

The underlying action alleged psychological and related harm after the plaintiffs claimed to have discovered a moldy piece of chicken in a box of cereal.

The court found that a binding settlement agreement had been reached through email communications between counsel.

However, the required sworn affidavit evidence and motion materials necessary for approval of a minor’s settlement under Rule 7.08 had not been properly filed.

As a result, the court could not approve the settlement and restored the action to the trial list.

Following a successful motion reinstating the applicants as members of a religious organization, the court determined the appropriate costs award.

The applicants sought full indemnity costs for the entire action dating back to an earlier request for reinstatement, relying in part on an unaccepted Rule 49 offer to settle.

The court held that costs should be limited to work related to the reinstatement motion heard on August 22, 2014 and not the broader action or prior proceedings.

While the applicants were completely successful on the reinstatement issue and entitled to costs, the court found their claimed time disproportionate to the focused issue litigated.

Costs were fixed at $12,000 all inclusive, payable by the organization, and not by its officers who were not parties to the motion.

A self-represented father brought a motion seeking termination or suspension of child support obligations, reallocation of payments applied by the Family Responsibility Office, reduction or elimination of arrears owed to the Ministry of Community and Social Services, and a restraining order against the mother.

The mother sought adjustment of arrears, reinstatement of child support for another child, spousal support, disclosure, and a restraining order.

The court determined that only one child remained entitled to ongoing support and fixed the payor’s income for guideline purposes.

Applying factors governing rescission of child support arrears and considering delay by the Ministry in enforcement and the payor’s financial circumstances, the court reduced arrears owed to the Ministry from over $25,000 to $5,000.

Requests for restraining orders were denied.

Following a successful application regarding the scope of a right of way and removal of obstructions interfering with vehicular ingress and egress, the court determined the appropriate costs award.

The responding parties argued that the successful parties should receive a reduced costs award because they failed to pursue meaningful pre‑litigation discussions and adopted an unnecessarily adversarial approach.

The court reviewed the factors under Rule 57.01 of the Rules of Civil Procedure and rejected the argument that the successful parties’ conduct disentitled them to costs.

Finding partial indemnity appropriate, the court fixed costs at a reduced but substantial amount.

The responding parties were ordered to pay a lump‑sum costs award.

The appellant appealed convictions for two counts of assault and one count of unlawful confinement arising from incidents involving his spouse.

He argued that the trial judge failed to analyze each count separately and misapplied the W.(D.) credibility framework.

The appeal court held that the trial judge properly articulated the governing legal principles, including the burden of proof and the W.(D.) analysis, and that the reasons, when read as a whole, adequately explained the credibility findings and verdicts.

The court also found no error in the trial judge’s comments regarding the defence’s failure to cross‑examine the complainant on certain allegations.

The convictions were supported by the evidence and no miscarriage of justice occurred.

The applicant sought to exclude eyewitness identification evidence arising from a photo line‑up.

Evidence revealed that police had shown the witness several mug shots of suspects prior to conducting the formal photo line‑up and failed to keep notes or records of that interaction.

The court held that the undocumented pre‑line‑up exposure created a serious risk that the witness’s identification had been tainted and could not be meaningfully tested through cross‑examination.

Given the uncertainty surrounding the circumstances of the earlier photographs and the witness’s statements during the line‑up indicating influence from them, the probative value of the identification evidence was outweighed by its prejudicial effect.

The identification evidence was therefore excluded.

The accused challenged the admissibility of evidence consisting of a name and phone number stored in a third party’s cell phone, arguing that it constituted hearsay.

The Crown sought to admit the evidence as circumstantial evidence of the state of mind of the person who recorded the contact information and its connection to events relevant to the prosecution.

The court held that the entry of a name and phone number in a cell phone constituted non-verbal conduct rather than hearsay and could be admitted for the limited purpose advanced by the Crown.

Alternatively, the evidence satisfied the principled exception to the hearsay rule due to circumstantial guarantees of trustworthiness and necessity where the phone’s owner had absconded.

The issue of the ultimate reliability and weight of the evidence was left to the jury.

During a criminal jury trial, the defence challenged testimony suggesting that the accused was known by a nickname, arguing the evidence was inadmissible hearsay.

The Crown contended the statement was admissible as an adoptive admission by silence because it was allegedly made in the accused’s presence.

The court reviewed the governing principles for adoptive admissions, including the requirement that the accused must have heard the statement and reasonably been expected to respond.

Because the evidentiary record did not establish that the accused was present or heard the statement, the foundational requirements were not met.

The jury was therefore prohibited from using the testimony as substantive evidence.

The appellant appealed a decision varying a long-standing spousal support order following a motion to change.

The trial judge had reduced ongoing support but significantly increased the monthly repayment of accumulated arrears and declined to impute certain income to the recipient spouse.

On appeal, the court held that a review proceeding does not require proof of a material change in circumstances and found errors in failing to attribute income to the recipient from a retirement investment account and modest rental income from an adult child living in the home.

The court also found the increased arrears repayment schedule was unsustainable relative to the payor’s income.

The support amount and arrears repayment schedule were varied accordingly.

Following the striking of the husband’s pleadings for failure to comply with financial disclosure orders, the matter proceeded as an uncontested family law trial on financial issues.

The court addressed retroactive child and spousal support, equalization of net family property, and exclusive possession of the matrimonial home.

Applying the principles governing retroactive child support, including those set out in DBS v SRG, the court found that some delay by the wife in seeking support was unreasonable but that the husband’s conduct and failure to support the children were significant factors.

Retroactive child support was ordered from September 1, 2010 and retroactive spousal support from May 1, 2011.

The husband’s interest in the matrimonial home was vested in the wife to satisfy equalization and support arrears, and ongoing support obligations were established.

A commercial trucking company sought indemnity under an automobile insurance policy after its tractor unit was reported stolen.

The insurer denied the claim, alleging the insured provided false particulars and failed to disclose significant unrepaired damage and the true market value of the vehicle during the application process.

The court held the insurance broker acted as the insured’s agent and that the insured was bound by the contents of the signed application and OAF1 form.

Relying on s. 233(1)(a)(i) and (ii) of the Insurance Act, the court found the insured provided false particulars and knowingly failed to disclose material facts, which prejudiced the insurer’s underwriting decision.

The claim was therefore invalid and indemnity forfeited.

The plaintiff contractor sued the defendant homeowners for unpaid amounts on a home renovation project.

The defendants counterclaimed for damages due to construction deficiencies, failure to follow design, delay, and fraudulent misrepresentation by the contractor's principal.

The court found that the contract was a fixed-price agreement and disallowed many of the contractor's claims for extras.

The court awarded damages to the homeowners for the contractor's failure to follow the agreed-upon design, delay costs, and structural repairs.

Furthermore, the court pierced the corporate veil, finding the contractor's principal personally liable for fraudulent misrepresentations that induced the homeowners to enter into the contract.

Judgment was issued in favour of the homeowners for $42,832.

The appellant appealed a conviction for failing to remain at the scene of an accident contrary to s. 252(1) of the Criminal Code.

The conviction rested largely on circumstantial evidence including a licence plate number, general eyewitness descriptions, and a voluntary statement indicating the accused and his wife were the only drivers of the vehicle.

The appellant argued that the trial judge misapprehended the evidence, failed to address weaknesses in eyewitness identification, and failed to consider alternative explanations consistent with innocence.

The Summary Conviction Appeal Court held that the trial judge’s oral reasons were insufficient because they did not meaningfully address the defence arguments or explain the path to the verdict.

The conviction was set aside and a new trial ordered.