Kristin Muszynski

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 accused was found guilty of multiple counts of sexual abuse, including incest and sexual interference, against his biological daughter when she was between 6 and 12 years old.

The court considered the profound impact on the victim and the accused's prior conviction for sexual interference against his stepdaughter.

Applying the principles of denunciation and deterrence, the court imposed a global sentence of 10 years in custody, less pre-sentence custody credit, along with various ancillary orders including a life-time SOIRA order and weapons prohibition.

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 appellant tenant appealed a Landlord and Tenant Board decision that required him to pay $50,000 in rent arrears to void an eviction order, arguing this exceeded the Board's $35,000 monetary jurisdiction.

The Divisional Court dismissed the appeal, affirming that while the Board cannot issue a standalone order for payment exceeding $35,000, this limit does not apply to the conditions a tenant must satisfy to void a termination order under the Residential Tenancies Act.

The court held that restricting 'pay to stay' conditions to the monetary limit would result in an absurdity, allowing tenants to obtain rent abatements by accumulating massive arrears.

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 plaintiffs brought a motion at the outset of a jury trial for leave to adduce expert evidence from three experts whose reports were served late.

The plaintiffs argued the delay was due to inadvertence and that the defendant would not be prejudiced.

The court dismissed the motion, finding that inadvertence did not constitute a reasonable explanation for the delay under the amended Rule 53.08.

The court also noted that granting leave would cause undue delay by necessitating an adjournment of the trial to allow the defendant to obtain responding reports.

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 tried on multiple counts of sexual assault, incest, and sexual interference arising from repeated allegations of intrafamilial sexual abuse against his young daughter over several years.

The court found the complainant credible and reliable despite delayed disclosure, difficulties with dates and timing, and the absence of physical injury or direct corroborative evidence.

The court rejected submissions based on myths and stereotypes about disclosure, demeanour, opportunity, and continued positive feelings toward the accused.

The complainant's detailed account, corrections during her police interview, and some circumstantial consistency with other evidence supported conviction on all counts.

The appellant was injured in a motor vehicle collision and submitted a claim for prescription medication to her auto insurer.

The insurer required her to undergo a medical examination under section 44 of the Statutory Accident Benefits Schedule to determine if the expense was reasonable and necessary.

When the appellant refused, the Licence Appeal Tribunal barred her from disputing the denial of her claim.

On appeal, the Divisional Court held that the Tribunal erred in its statutory interpretation, finding that insurers cannot require section 44 examinations for prescription medication claims because such claims are not submitted through treatment and assessment plans.

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 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.

Manulife sought leave to appeal a decision of the Assessment Review Board that held it was estopped from appealing its 2021 and 2022 property tax assessments due to a prior settlement for the 2017-2020 taxation years.

Manulife also brought a motion to admit fresh evidence.

The Divisional Court dismissed the motion to admit fresh evidence, finding it did not meet the Palmer test.

However, the Court granted leave to appeal, finding good reason to doubt the correctness of the Board's application of issue estoppel because the prior settlement explicitly applied only to the years under appeal and there had been no hearing on the merits regarding equitable adjustments.

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 appellant appealed a decision of the Financial Services Tribunal revoking her mortgage agent licence.

The Tribunal found she had engaged in a repeated pattern of dishonesty, including failing to disclose a previous real estate registration revocation and a criminal conviction for obstructing justice, and misleading investigators.

On appeal, the appellant argued the Tribunal should have applied a higher standard of proof and erred in its penalty.

The Divisional Court dismissed the appeal, confirming that the civil standard of proof applies regardless of the seriousness of the allegations, and found no palpable or overriding error in the Tribunal's decision to revoke the licence.

The appellant, a former lawyer whose licence was revoked following a criminal conviction for misappropriating client funds, appealed an order terminating the Law Society's trusteeship over his law practice.

He argued the motion judge erred in denying an adjournment, fixing the trustee's compensation, and authorizing the destruction of his client files after one year.

The Divisional Court dismissed the appeal regarding the adjournment and compensation, finding no reviewable error.

However, on consent of the Law Society, the court varied the order to extend the file retention period to allow the appellant access to the files for his pending criminal appeal.

The appellant, a registered nurse practitioner, appealed a 10-month suspension imposed by the Discipline Committee for failing to maintain professional boundaries by engaging in an intimate relationship with a former patient while continuing to treat the former patient's spouse.

The appellant argued the penalty was unfit and failed to adequately account for the abusive nature of the relationship and her vulnerability.

The Divisional Court dismissed the appeal, finding the Panel made no error in principle, properly considered the mitigating psychological evidence, and imposed a fit penalty within the reasonable range given the serious impact on both patients.

The moving party brought motions to strike an affidavit, for a sealing order, and for leave to appeal a costs order.

The Divisional Court dismissed all motions, permitting the responding party to redact its materials to remove allegedly privileged information.

Costs of $5,000 were awarded to the responding party for the motion for leave to appeal.

The moving parties brought a motion for an extension of time to move for leave to appeal and a motion for leave to appeal an earlier order.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal.

Costs of $5,000 were awarded to the responding party.

The appellant solicitor appealed a decision regarding an assessment hearing that he failed to attend, arguing he did not receive notice.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the lower court's conclusion that notice was properly sent to the appellant's email address and that it was reasonable to conclude he had withdrawn from the proceeding.