Suzan E. Fraser

The Plaintiff brought a motion for leave to issue a Fresh as Amended Statement of Claim, consolidate two proceedings, and add Modern Cleaning Concept Inc. as a defendant after the limitation period.

The proposed defendant, Modern Cleaning, opposed the motion, arguing lack of reasonable diligence by the Plaintiff and non-compensable prejudice.

The court applied the Morrison v. Barzo framework, finding that the Plaintiff exercised reasonable diligence in discovering the claim against Modern Cleaning, particularly given Wal-Mart's delayed disclosure of the cleaning contractor.

The court also found that Modern Cleaning would not suffer non-compensable prejudice.

The motion was granted.

The Plaintiff, Samiy Retail Inc., brought a motion for summary judgment in an action arising from a failed real estate transaction.

The Plaintiff sought damages for breach of an Agreement of Purchase and Sale (APS), including a shortfall from resale, financing costs, and forfeited deposits.

The Defendant, Sajish Kallarakkal, argued there were genuine issues for trial, including the validity of the APS due to late deposit, identification of parties, and late waiver of conditions.

The court found no genuine issue for trial, concluding that a binding contract existed and was breached by the Defendant.

The motion for summary judgment was granted, the counterclaim dismissed, and damages awarded to the Plaintiff.

This criminal trial concerned Puneet Grewal, charged with dangerous driving causing death after he reversed his dump truck on a landfill site, running over and killing Kyrsten Sujanszky.

The Crown alleged that Grewal's driving constituted a marked departure from the standard of a reasonable and prudent truck driver, specifically by reversing without regard to Ms. Sujanszky's whereabouts despite an obligation to keep her in sight.

The court examined the circumstances of the site, the inherent dangers of reversing a dump truck, and the actions of both the accused and the deceased.

Ultimately, the court found that while Grewel's actions might have been careless, there was reasonable doubt as to whether they constituted a 'marked departure' from the standard of care, particularly given the uncertainties about how Ms. Sujanszky came to be in the truck's path and the site's own safety practice deficiencies.

Grewal was found not guilty.

The plaintiff, a welder, was injured on the defendant Yaya Foods Corporation's premises due to a faulty excavator operated by an independent contractor.

Yaya Foods brought a motion for summary judgment, arguing it was not liable as an occupier under the Occupiers' Liability Act for the independent contractor's equipment failure.

The court granted the motion, finding that the OLA does not impose a duty on an occupier to inspect the tools used by an independent contractor for safety.

Consequently, Yaya Foods was not found liable for the equipment's lack of maintenance, and the action against them was dismissed.

The defendant, Ayodele Adekoya, was found guilty by a jury of fraud over $5,000, possession of identity documents, uttering a forged document, and possession of property obtained by crime, stemming from a large-scale credit card fraud operation involving 60 compromised identities and a total loss of $239,677 to Citibank.

The court considered aggravating factors, including the significant quantum of fraud, the scale of the operation, and the defendant's extensive criminal record for similar dishonesty offences.

Mitigating factors included family support and rehabilitative potential.

The court rejected a conditional sentence order due to the defendant's history of non-compliance and dishonesty.

Despite concerns about collateral immigration consequences and the impact on the defendant's family, the court imposed a custodial sentence of 40 months concurrent for all counts, along with a DNA order and a restitution order of $239,677.

This decision addresses three motions: the defendants' motion to remove the plaintiff's counsel due to an alleged conflict of interest, the defendants' motion to lift a Mareva injunction against two defendants, and the defendants' motion to discharge a certificate of pending litigation (CPL).

The court dismissed the motion to remove counsel, finding no direct adverse legal interests and that the "bright line rule" did not apply.

The motion to lift the Mareva injunction was also dismissed, as the court found evidence of co-mingled funds implicating the defendants.

However, the motion to discharge the CPL was granted, as the plaintiff failed to demonstrate an interest in the property, which was acquired prior to the investment relationship.

Jennings Lodge Inc. sought an interlocutory injunction to prevent the Canadian Mental Health Association (CMHA) from relocating residents from Jennings Lodge, a facility transitioning from a licensed home for special care to a Community Homes for Opportunity (CHO) program.

The dispute arose from CMHA's termination of a Transfer Payment Agreement (TPA) with Jennings Lodge.

The court applied the RJR-MacDonald test, finding a serious issue regarding the enforceability and unconscionability of the TPA's termination clause due to unequal bargaining power.

Irreparable harm was found for Jennings Lodge's business reputation and operation, and for the vulnerable residents who were not consulted and treated as "chattels." The balance of convenience favored Jennings Lodge, as it faced significant loss while CMHA asserted no harm.

The injunction was granted, restraining CMHA from relocating residents until the claim's resolution or January 22, 2025.

Juan-Manuel Guevara was found guilty by a jury of possession of a loaded prohibited firearm and possession of cocaine.

The court considered aggravating factors, including a dated criminal record and the firearm's presence in a public place, and mitigating factors such as strong family support, pro-social activities, and good rehabilitation prospects.

The court imposed a global sentence of 42 months, concurrent for the cocaine possession, with credits for pre-trial custody and restrictive bail conditions, resulting in a net sentence of 37 months and 1 day.

Ancillary orders included a 20-year firearms prohibition, a DNA order, and forfeiture of seized property.

The appellant tenant appealed a Landlord and Tenant Board eviction order, arguing she was denied procedural fairness.

The appellant had retained a paralegal the day before the hearing, who sent an agent to request an adjournment.

Due to a misunderstanding, the agent left before the adjournment was formally considered.

The hearing proceeded with the unrepresented appellant, who was temporarily disconnected and missed the landlord's evidence on the adjournment.

The Divisional Court found the Board's handling of the adjournment, the appellant's disconnection, and the failure to explain the process to the self-represented appellant amounted to a denial of procedural fairness.

The appeal was allowed and the matter remitted to a different Board member.

This decision concerns the sentencing of two individuals, Adam Luangphasi and Alexander Le, following their convictions for multiple drug-related conspiracies arising from "Project Southam." Luangphasi was found guilty of conspiracy to traffic cocaine (Carpet Conspiracy) and two counts of conspiracy to import cocaine (Guyana Conspiracy and Plane Conspiracy), where he was identified as a top principal.

Le was found guilty of conspiracy to export cannabis (Cannabis Conspiracy) and also conspiracy to traffic cocaine (Carpet Conspiracy) and conspiracy to import cocaine (Guyana Conspiracy), acting as a close colleague to Luangphasi.

The court applied sentencing principles of denunciation, deterrence, proportionality, and parity, emphasizing the severe societal harm caused by drug importation and trafficking.

It rejected the argument that a "dry conspiracy" (where drugs were not actually imported) warrants a significant sentence reduction if the conspiracy was not abandoned.

Luangphasi received a global sentence of 18 years imprisonment, while Le received a global sentence of 9 years imprisonment, with specific concurrent terms for each count.

Ancillary orders for DNA and firearms prohibitions were also imposed.

The applicant, West Whitby Landowners Group Inc. (WWLG), brought an application seeking the court to decide a dispute with Elexicon Energy Inc. regarding the classification and funding of a municipal electrical substation.

This followed an opinion from the Ontario Energy Board (OEB) siding with Elexicon and the Divisional Court's dismissal of WWLG's judicial review application.

The respondents, Elexicon and the OEB, brought a motion to dismiss WWLG's application.

The court dismissed WWLG's application, finding it constituted an abuse of process as it attempted to relitigate a matter already determined by the OEB, and further, that the OEB had exclusive jurisdiction over the subject matter concerning compliance with the Distribution System Code.

This motion in a construction action concerned Koler Construction Inc.'s request for Falcon Forming Inc. to provide further particulars and supporting documentation for alleged additional costs and delays, specifically related to items in Falcon's Scott Schedule.

Koler argued that Falcon's position on the contract (labour vs. scope of work) had shifted and that previous disclosures were insufficient.

Falcon contended that its Scott Schedule adequately particularized the claim and that discoveries were complete.

The court found that Falcon's Scott Schedule did not provide full answers to the questions asked, especially given the shifting positions and the fact that the Scott Schedule was particularized after discoveries.

The court ordered Falcon to provide the requested particulars and supporting documents for the delay claims.

The appellant appealed a trial judgment awarding the respondents damages for their arrest at a border crossing.

The Divisional Court raised the issue of its jurisdiction to hear the appeal under s. 19(1.2) of the Courts of Justice Act.

The court found that because the total damages awarded in each action exceeded $50,000 inclusive of prejudgment interest, the appeal exceeded the Divisional Court's monetary jurisdiction.

The appeal was transferred to the Court of Appeal pursuant to s. 110 of the Courts of Justice Act.

The defendant, Himelfarb Proszanski, brought a motion under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, and an abuse of process.

The plaintiff, Aynoush Biniaz-Sarabi, was self-represented and opposed the motion.

The court found that the statement of claim lacked a basis for liability against the defendant, constituted an impermissible collateral attack on a prior License Appeal Tribunal decision regarding accident benefits, and was virtually identical to another action commenced by the plaintiff the day prior.

Consequently, the court dismissed the action without costs.

The plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagors for default on a second mortgage.

The plaintiff claimed the mortgage was renewed at a higher interest rate and sought various fees.

The defendants disputed the renewal and the propriety of many charges.

The court found the mortgage was not renewed and disallowed most of the plaintiff's claimed charges, including the renewal fee, various administration fees, and a three-month prepayment penalty, citing s. 8(1) of the Interest Act.

The court determined the correct amount to discharge the mortgage based on the original interest rate and allowed only a proper discharge fee.

The accused, Adam Luangphasi and Alexander Le, were tried on multiple counts including conspiracy to traffic, import, and produce cocaine, as well as participating in a criminal organization and possessing proceeds of crime.

The Crown's case relied heavily on intercepted communications, surveillance, and expert evidence decoding drug jargon.

Applying the Carter framework for co-conspirator hearsay, the court found both accused guilty of conspiracy to traffic cocaine and conspiracy to import cocaine from Guyana.

Luangphasi was also found guilty of a separate conspiracy to import cocaine using a private plane.

Both accused were acquitted of the criminal organization charges due to a lack of proven structure and continuity, and acquitted of the carpet importation and production conspiracies.

Luangphasi was acquitted of possessing proceeds of crime.

The plaintiff employee was laid off in March 2020 due to the COVID-19 pandemic and brought a motion for summary judgment claiming constructive dismissal.

The defendant employer argued the layoff was an Infectious Disease Emergency Leave (IDEL) under the Employment Standards Act, which negated the claim.

The court found that while the layoff qualified as an IDEL, the regulation did not preclude a common law claim for constructive dismissal.

Finding no implied term in the employment contract permitting a unilateral layoff and no condonation by the employee, the court held the plaintiff was constructively dismissed and awarded 15 months' notice.

Three Indigenous sisters sued their former foster mother and the Attorney General of Canada for abuse and loss of culture.

The plaintiffs were placed with their non-Indigenous aunt and uncle in the 1960s.

The court found that the foster mother physically and emotionally abused the plaintiffs, treating them as servants and disparaging their Indigenous heritage.

The court also found that Canada breached its fiduciary duty by shelving plans to return the children to their First Nation in Saskatchewan, resulting in a profound loss of culture, language, and identity.

The plaintiffs were awarded $100,000 each in general damages (joint and several), $10,000 each in punitive damages against the foster mother, and $150,000 each against Canada for loss of culture.

The Third Party Defendant, His Majesty the King in Right of Ontario, brought a Rule 21.01 motion to strike a third-party claim by 1458875 Ontario Corporation O/A Yorktown Motors.

Yorktown alleged negligence against Ontario for issuing fraudulent vehicle permits and Used Vehicle Information Packages (UVIPs) for a non-existent vehicle, which Yorktown relied upon in a financing transaction.

The court found that the claim was barred by section 11(2) of the Crown Liability and Proceedings Act, 2019, as the issuance of a vehicle permit constitutes a regulatory decision.

Alternatively, the court found it plain and obvious that no private law duty of care existed between Ontario and Yorktown, as the relevant legislation did not create such a duty, and there was no sufficient proximity or policy reason to establish a new duty.

The motion to strike was granted.

The defendants moved to set aside a default judgment and to dismiss the action on the basis that the individual plaintiff was an undischarged bankrupt and lacked capacity to sue or direct the corporate plaintiff.

The plaintiffs brought a cross-motion to remove the defendants' counsel, arguing he was in a conflict of interest and a potential witness.

The court dismissed the motion to remove counsel, finding no substantial risk to the administration of justice.

The court granted the motion to set aside the default judgment, noting the plaintiff failed to disclose her bankruptcy when obtaining it.

Finally, the court dismissed the action as a nullity and an abuse of process, as an undischarged bankrupt cannot commence an action or act as a corporate director under the Business Corporations Act.