Kristin Muszynski

The applicant sought an order validating a draft will pursuant to s. 21.1(1) of the Succession Law Reform Act on behalf of a deceased who died of a sudden heart attack twelve days after the draft was prepared, before it was signed or witnessed.

The court found that while the deceased had capacity and clear general intentions to benefit the applicant and others over his estranged siblings, the applicant failed to establish that the draft will reflected a deliberate or fixed and final expression of testamentary intention.

There was no evidence the deceased had reviewed the draft, the deadline for suggested corrections had not expired at the time of death, and discrepancies existed between the draft and the deceased's earlier handwritten notes.

The application was dismissed; costs submissions were invited but the court noted the estate may appropriately bear the successful respondent's costs given the reasonable grounds for bringing the application.

The plaintiff sought leave to amend the statement of claim to limit damages to $200,000 (the statutory minimum insurance limit) and continue the action under simplified procedure.

The defendant insurer opposed the motion, arguing it was premature and that the loss of the right to a jury trial constituted non-compensable prejudice.

The court granted the amendment, finding that the defendant failed to demonstrate non-compensable prejudice and that the defendant's own pleading acknowledged the $200,000 limit and simplified procedure applicability.

The jury notice was struck as a necessary consequence of proceeding under simplified procedure.

Brandon Sero and Marie Miller were charged with drug trafficking offences following a search warrant executed on February 8, 2024.

Sero brought a Charter application under section 24(2) to exclude evidence seized during the search, arguing the warrant was invalid due to breaches of section 8 rights.

The applicant challenged the validity of the warrant, claiming the Information to Obtain failed to disclose reasonable and probable grounds and that confidential source information was insufficiently credible, compelling, and corroborated.

The court found the warrant was valid despite material omissions from the ITO regarding the background and credentials of confidential sources.

The court applied the Garofoli process to manage disclosure while protecting informer privilege and ultimately dismissed the Charter application, finding the evidence admissible under section 24(2) of the Charter.

Following conviction on two counts of dangerous driving causing death and two counts of impaired driving/over 80 causing death arising from a motor vehicle collision that killed two young women, the court imposed a global sentence of six years custody on the impaired driving counts and five years custody on the dangerous driving counts, all running concurrently.

The court rejected both the Crown's submission for 7-8 years and the defence submission for 4 years, balancing denunciation and deterrence against the offender's youth, lack of criminal record, and strong rehabilitative prospects.

The court also imposed a 12-year driving prohibition and a non-communication order.

The court rejected the defence argument that the impaired driving counts should be stayed under the Kienapple principle, finding that impaired driving and dangerous driving address different aspects of road safety.

This ruling addresses the admissibility of expert evidence from Cara Shepard, a forensic toxicologist, in the trial of Aysar Younes for impaired and dangerous driving causing death.

The court found that while Ms. Shepard’s evidence regarding cocaine use was necessary and within her expertise, it lacked probative value on the issue of impairment or crash phase at the time of the collision and was therefore inadmissible for that purpose.

However, the court allowed the evidence for the limited purpose of establishing continuity of the blood sample.

This decision concerns the prosecution of Aysar Younes for two counts each of impaired driving/over 80 causing death and dangerous driving causing death, arising from a fatal collision on Highway 2 in Trenton, Ontario.

The court addresses the admissibility and reliability of blood alcohol evidence, the continuity of evidence, and the legal standards for impaired and dangerous driving causing death.

The court finds the evidence of blood alcohol concentration and impairment reliable and sufficient, and concludes that Younes' conduct constituted a marked departure from the standard of care, resulting in conviction on all counts.

The Divisional Court dismissed the moving party's motion for leave to appeal a decision dated June 27, 2024.

Costs were awarded to the responding party in the amount of $5,000.00.

The accused, Aysar Younes, faced charges of operating a conveyance causing death while impaired/over 80 and dangerous operation causing death.

This ruling addressed two Crown applications: to declare a statement made by Younes to police voluntary, and to determine the admissibility of evidence from a friend regarding the normality of cocaine use in their social group.

The court found the statement voluntary for cross-examination purposes, as conceded by the defence.

However, the court dismissed the Crown's application to admit evidence about the normality of cocaine use, finding its probative value low and the risk of moral prejudice high, particularly in a jury trial.

The applicant sought to exclude evidence obtained by police following a fatal motor vehicle collision, alleging breaches of his s. 8 Charter rights.

The court found that the warrantless seizure of airbag control module (ACM) data was lawful under s. 489(2)(c) of the Criminal Code, as police had reasonable grounds to believe it would provide evidence of an offence.

Similarly, the production order for medical records and search warrant for blood vials were deemed valid, as reasonable grounds existed to suspect impairment.

However, the search warrant for the applicant's cell phone was found to be overly broad and the subsequent search unlawful, infringing s. 8.

Applying the Grant factors, the court admitted the ACM data, medical records, and toxicology reports, but excluded all evidence obtained from the cell phone search due to the seriousness and impact of the breach.

The plaintiff, a federally incarcerated offender, brought a motion for state-funded counsel and a cross-motion to dismiss the defendant's motion to strike his claim.

The defendant moved to strike the plaintiff's claim for disclosing no reasonable cause of action and for being frivolous, vexatious, or an abuse of process.

The court dismissed the plaintiff's motion for counsel, finding no basis under the Rules of Civil Procedure or the Charter.

The court granted the defendant's motion to strike, concluding that the statement of claim failed to disclose a reasonable cause of action and was frivolous, vexatious, and an abuse of process, given the plaintiff's history of initiating numerous civil actions.

The plaintiff's claim was dismissed in its entirety.

The defendants, McDonald Brothers Construction Inc. et al., brought a motion to dismiss the plaintiff's claim for delay under Rule 24.01 of the Rules of Civil Procedure.

The action, commenced in 2016, had seen no progress since discoveries in 2018, and the plaintiff failed to comply with a 2019 order to retain new counsel.

The court found the delay to be inordinate and inexcusable, rejecting the plaintiff's explanations related to personal health, financial difficulties, and the pandemic.

Despite no finding of intentional or contumelious conduct, the plaintiff failed to rebut the presumption of prejudice arising from the delay.

The motion was granted, and the action was dismissed with costs awarded to the defendants.

The National Bank of Canada brought an application seeking a declaration that Garfield Anthony Hibbert is a vexatious litigant and an order curtailing his ability to commence or continue litigation against the Bank.

The court found that Mr. Hibbert had persistently and without reasonable grounds instituted vexatious proceedings, repeatedly re-litigating the same facts related to a TFSA dispute across multiple courts, failing to pay costs, and threatening further litigation.

The court validated service on Mr. Hibbert, who did not file materials or attend the hearing.

The application was granted, declaring Mr. Hibbert a vexatious litigant.

The applicant sought to enforce a 1979 consent judgment regarding the sale and division of proceeds from a property.

The respondent argued the application was barred by a statutory limitation period or the doctrine of laches.

The court found that the 20-year limitation period for "an action upon a judgment" under the Limitations Act, 1970, did not apply to this specific type of judgment, which was incomplete and did not create a fixed money debt.

The court also held that the doctrine of laches was inapplicable as the applicant sought legal, not equitable, relief.

Consequently, the application was not barred and could proceed.

The defendants in a motor vehicle accident case brought a motion to compel the plaintiff to attend three defence medical examinations, months before a scheduled jury trial.

The plaintiff opposed, citing the defendants' non-compliance with the Rules of Civil Procedure and a consent order that set a deadline for expert reports, which the defendants missed.

The court dismissed the motion, finding no reasonable explanation for the defendants' significant delays in arranging the examinations and bringing the motion.

The court emphasized that compelling attendance for examinations whose resulting reports would be presumptively inadmissible at trial, due to the missed deadlines and lack of a motion to extend time for service, was contrary to principles of efficiency and proportionality.

The accused was convicted of possession of fentanyl and cocaine for the purpose of trafficking, along with other offences.

The sentencing judge considered the principles of sentencing, aggravating factors (nature of fentanyl, criminal record), and limited mitigating factors.

The Crown sought a 7-year global sentence, while the defence sought a conditional sentence of 2 years less a day or a custodial sentence of no more than an additional 2 years.

The court declined a conditional sentence due to the offender's criminal record and history of non-compliance with court orders.

A global sentence of 6 years incarceration was imposed, reduced by 1 year for pre-sentence custody, resulting in a further 5 years in custody.

Ancillary orders included a DNA order, a lifetime weapons prohibition, and forfeiture.

The offender, Abu Mandal, was convicted of selling items intended for the production of a Schedule I substance (methamphetamine) contrary to s. 7.1(1) of the Controlled Drugs and Substances Act.

The Crown sought a 2.5-year custodial sentence, while the defence proposed a fine and probation or a conditional sentence.

The court considered aggravating factors, including the commercial nature of the offence and the harm caused by methamphetamine, and mitigating factors, such as the offender's lack of criminal record, advanced age (77), and low risk of reoffending.

The court found that a period of incarceration was warranted but deemed the Crown's proposed sentence excessive given the offender's age and personal circumstances.

A sentence of 1 year in custody followed by 2 years probation was imposed, and a discretionary DNA order was declined.

The accused, Jonathan Samuel, faced charges including possession of fentanyl and cocaine for trafficking, obstructing a peace officer, and unlawful entry into a dwelling-house, along with breaches of release and probation orders.

The trial involved a mistrial application based on alleged judicial bias and a Charter application to exclude evidence due to an alleged s. 8 breach (unreasonable search and seizure).

The court dismissed the mistrial application, finding no reasonable apprehension of bias.

It also dismissed the Charter application, concluding that exigent circumstances justified the warrantless police entry into the hotel room, and even if there was a breach, the evidence would not be excluded under s. 24(2) of the Charter.

The court found the accused guilty beyond a reasonable doubt on all substantive charges, including drug trafficking, obstruction, unlawful entry, and the breach counts.

The accused, Abu Mandal, was charged under s. 7.1(1) of the Controlled Drugs and Substances Act for selling items intending they be used in the unlawful production of a Schedule I substance (methamphetamine).

The Crown presented circumstantial evidence that Mandal sold chemicals and equipment to an individual operating a clandestine methamphetamine lab.

The central issue was whether Mandal possessed the requisite intent.

The court found that Mandal had knowledge of the unlawful end-use of the chemicals, which was sufficient to establish intent, rejecting the defence's argument that a desire for the outcome was required.

The court relied on principles from aiding and abetting cases under the Criminal Code.

Mandal was found guilty.

The applicant, N.R., sought to set aside a guilty verdict for sexual assault and incest, requesting a mistrial due to alleged ineffective assistance of trial counsel, or alternatively, to reopen the trial to admit fresh DNA evidence.

The court dismissed both applications.

The claim of ineffective assistance was rejected as the court found N.R. failed to prove his counsel prevented him from testifying, accepting counsel's evidence that the decision was N.R.'s.

The fresh evidence application was dismissed because the new DNA reports lacked credibility, were inadmissible, and would not have affected the trial outcome, as the conviction was primarily based on the complainant's testimony.

The plaintiff, Mary Ann Lalonde, brought a motion to strike portions of the defendant Canadian Blood Services' statement of defence, specifically references to the 'plaintiff’s husband’s law firm,' arguing they were irrelevant, scandalous, frivolous, and vexatious.

The defendant argued these facts were material to the issue of repudiation of the employment contract.

The court granted the plaintiff's motion, finding the references immaterial to the claim or defence and serving no legitimate purpose other than to diminish the plaintiff's claim and cast her and her counsel in a negative light.

The court also ordered the removal of gratuitous underlining from the statement of defence by consent.