Robert G. S. Del Frate

The accused pleaded guilty to aggravated sexual assault against a two‑year‑old child in his care, causing severe vaginal injuries resulting from repeated blunt force trauma and penetration.

The sentencing judge emphasized the extreme vulnerability of the victim, the breach of parental trust, and the gravity of the injuries.

While mitigating factors included the accused’s guilty plea, youth, difficult upbringing, Indigenous background, and limited adult criminal record, the court held that denunciation and deterrence were paramount.

The court accepted the Crown’s proposed sentence of seven years’ imprisonment, subject to credit for pre‑trial custody.

Enhanced credit of 1.5:1 was granted for most remand time due to harsh conditions and protective custody, except for 60 days of misconduct credited at 1:1.

The accused brought an application under s. 278.3 of the Criminal Code seeking production of third‑party records from a psychologist and a children’s aid society relating to the complainant in a sexual assault prosecution.

The defence argued the records were likely relevant to credibility and reliability because the complainant had stated he sometimes “made things up” or misinterpreted events.

The court applied the framework from R. v. Mills and R. v. O’Connor governing production of confidential records and held that the threshold of likely relevance was met for the psychologist’s records.

Those records were ordered produced to the judge for review for the period April 1, 2009 to July 24, 2013.

Although the evidentiary basis for production of children’s aid society records was not otherwise established, the court ordered production of the records already obtained by police because they had been improperly requested and reviewed during the investigation.

The plaintiff subcontractor moved for partial summary judgment against the contractor for funds received from the Ministry of Transportation under a highway paving project.

The contractor had admitted in its pleadings that, after specified deductions, $297,710.82 from a $450,000 payment was owed to the plaintiff but later sought to withhold payment pending determination of counterclaims and other related proceedings.

Applying the summary judgment framework and the “full appreciation test” from Combined Air Mechanical Services Inc. v. Flesch, the court held the issue was document‑driven and that the admissions in the pleadings established the debt.

The defendant failed to demonstrate a genuine issue requiring a trial and had not properly pleaded a set‑off.

Partial summary judgment was granted for the admitted amount with prejudgment interest, while the request to have additional funds paid into court was denied.

The Crown appealed acquittals on charges including theft over $5,000, possession of stolen property, fraud, false pretences, and making a false statement to obtain a loan arising from a business loan secured by equipment.

The trial judge concluded there was reasonable doubt regarding the accused’s intent to breach the criminal law, largely because the accused intended to repay the loan.

The appellate court held the trial judge’s reasons were insufficient to permit meaningful appellate review and failed to explain how credibility findings or the evidence supported the acquittals.

The court also found an error of law in treating an intention to repay as negating fraudulent intent, contrary to established jurisprudence.

The Crown appeal was allowed and a new trial ordered.

The defendants brought a motion seeking to strike numerous requests to admit served by the plaintiff and to prohibit the plaintiff from serving further requests, alleging abuse of process and an attempt to circumvent the limits on oral discovery under Rule 31.02 of the Rules of Civil Procedure.

The court considered Rule 51 governing requests to admit and the jurisprudence addressing excessive or abusive use of such requests.

While some requests were imperfectly drafted, the court held that most were relevant and that the Rules impose no numerical limit on requests to admit so long as they are served more than 20 days before trial.

The circumstances did not approach the extreme situations in prior cases where restrictions were imposed.

The motion was dismissed and the defendants were expected to respond to the outstanding requests.

The applicant brought a motion to enforce an existing child support order and sought contribution toward post-secondary education and private school expenses.

The respondent argued that support should terminate because the adult child had ended the relationship with him and had completed secondary school.

The court found the estrangement was mutual and that the respondent had not proven a unilateral repudiation by the child, but also concluded that the applicant failed to establish that the child remained a dependent for support purposes under the principles set out in Farden.

The court declined to order payment of university expenses due to insufficient evidence regarding full‑time enrolment and commitment to studies.

The court also held that private school tuition incurred unilaterally by the applicant was neither necessary nor reasonable.

No new support payments were ordered unless future evidence demonstrates that the child qualifies as a dependent.

The defendant lawyer moved for summary judgment dismissing a malpractice action brought by a former client arising from the settlement of motor vehicle accident litigation.

The plaintiff alleged breach of contract, breach of fiduciary duty, negligence, and unjust enrichment, claiming he did not consent to the settlement or signed documents under duress and incapacity.

The court held that the action was statute-barred under the Limitations Act, 2002 because the plaintiff knew or ought to have known of the alleged cause of action years before issuing the claim.

The plaintiff provided no evidence supporting allegations of forgery, coercion, or incapacity sufficient to suspend the limitation period.

Summary judgment was granted and the action dismissed.

The appellant appealed a conviction for assault entered by the Ontario Court of Justice arising from an altercation with a common-law partner.

The appellant argued that the trial judge failed to properly apply the credibility analysis required by R. v. W.(D.) and failed to provide sufficient reasons as required by R. v. Sheppard.

The Superior Court held that the trial judge erred by failing to analyze the accused’s denial of a key allegation and by providing insufficient reasons explaining why the evidence did not raise a reasonable doubt.

Because credibility was central and the reasons did not permit meaningful appellate review, the conviction could not stand.

The appeal was allowed and a new trial ordered.

The appellant appealed a conviction for failing or refusing to comply with a roadside demand to provide a breath sample under s. 254(2) of the Criminal Code.

The appellant argued the trial judge erred in finding an unequivocal refusal, provided insufficient reasons, and failed to properly consider the impact of an officer’s misstatement regarding the right to counsel, the absence of a final warning, and the short time between demand and arrest.

The court held that refusal may be inferred from conduct and statements and that the trial judge reasonably concluded the appellant constructively refused by repeatedly delaying and refusing to comply.

The officer’s incorrect statement about the right to counsel did not materially mislead the appellant and did not undermine the clarity of the demand.

The appellate court found the trial judge’s reasons sufficient and dismissed the appeal.

The plaintiff supplier brought an ex parte motion seeking a declaration that amounts owed for construction materials constituted a trust under s. 8 of the Construction Lien Act.

The materials were supplied to the defendants for a renovation project, and a default judgment had previously been obtained for the unpaid balance.

The court applied the four-part test articulated in Sunview Doors Ltd. v. Pappas for establishing beneficiary status under the statutory trust provisions.

Finding that the defendants were contractors, that the plaintiff supplied materials, that the defendants received or were owed contract funds, and that they owed the plaintiff for the materials, the court held that the statutory trust was established.

The plaintiff was therefore declared a beneficiary of the trust and granted priority to any remaining funds payable under the construction contract.

The respondent parent brought a motion for contempt alleging that the other parent failed to comply with prior custody and access orders by influencing the parties’ children not to visit her.

The responding parent argued the children independently refused access and threatened to run away if forced to return.

The court held that contempt proceedings require clear and reliable evidence and found the record insufficient to determine the reasons for the children’s refusal.

The court ordered the involvement of the Office of the Children’s Lawyer to obtain further information regarding the children’s circumstances.

The contempt motion was adjourned pending that involvement.

The respondent mother sought a stay of an order granting the father supervised access to the child pending the hearing of an appeal.

The court applied the three-part test for a stay: merits of the appeal, irreparable harm, and balance of convenience.

It found the appeal had arguable merit because the original decision was made solely on affidavit evidence without cross-examination despite serious allegations.

The court concluded that immediate access could cause irreparable harm by introducing the father to the child without preparation or counselling, given the child had never been told of his existence.

The stay was granted pending the scheduled appeal hearing.

The father brought a motion seeking permission to enrol the parties’ children in a competitive lacrosse league despite a prior order requiring the other parent’s consent for competitive extracurricular activities.

The mother refused consent based on the strict wording of the order.

The court held that the best interests of the children required a reasonable approach to withholding consent, particularly where participation would not interfere with the other parent’s parenting time.

Finding the children would benefit from participating at a higher level and that the proposed schedule would not infringe on the mother’s parenting time, the court granted the requested order.

In a family law motion concerning parenting decision-making, the father sought permission to enrol the parties’ twin children in a community lacrosse association.

On consent of both parties, the court issued an endorsement permitting the enrolment for the 2012 season.

The order required that all lacrosse-related activities, including practices, meetings, and tournaments, occur only during the father’s parenting time.

Reasons for the endorsement were to follow.

The Crown appealed acquittals entered at trial for impaired operation of a motor vehicle and operating with a blood alcohol concentration over 80 mg.

The trial judge had rejected the defence of non‑insane automatism but nevertheless acquitted on the basis that the accused lacked the requisite mens rea due to a confused mental state preceding alcohol consumption.

On appeal, the court held that the trial judge erred in law by finding that confusion pre‑dated the drinking without any evidentiary basis.

The accused had not adduced evidence showing that the alcohol consumption was unknowing or involuntary as required under the presumption discussed in R. v. King.

The appeal was allowed and convictions were entered on both counts, with further submissions invited regarding the Kienapple principle and sentence.

In a construction lien proceeding, the moving party sought to set the action down for trial on the existing pleadings before expiry of the statutory deadline under section 37.

The responding party objected, arguing the proposal would improperly extend time and delay the action.

The court distinguished prior authority and found the procedural history showed active steps had been taken to advance the matter within time.

The court held the objection sought an unwarranted tactical advantage and accepted the proposed without-prejudice filing approach pending rulings on the motion and cross-motion.

The defendants brought a motion to dismiss the plaintiffs’ action for failure to comply with undertakings given during cross‑examination in a long‑running commercial dispute.

Several undertakings relating to financial records, loan documentation, tax returns, and trust information remained outstanding despite prior court orders requiring compliance.

The court found that the plaintiffs had failed to diligently comply and that the attempted responses amounted largely to non‑answers.

While dismissal of the action under Rule 60.12 of the Rules of Civil Procedure was considered, the court held that dismissal would be disproportionate at that stage.

Instead, the plaintiffs were precluded from advancing evidence at trial relating to damages allegedly sustained by two corporations or claims based on those corporate losses.

The plaintiffs sought a vesting order over residential property registered in their daughter's name, alleging that title had been placed in her name solely to obtain financing due to their bankruptcies.

They asserted an oral agreement that ownership would be transferred to them once the loan used to purchase the property had been repaid.

The defendant denied the agreement and argued that any compensation should be limited to monetary reimbursement for payments made.

The court found that the plaintiffs had paid the purchase-related expenses and loan repayments and that the defendant would be unjustly enriched if she retained the property.

Applying resulting trust principles, the court ordered that the property be vested in the plaintiffs.

Purchasers of rural property alleged that the vendor misrepresented the location of the boundary and sought a declaration that they owned an additional 2.3 acres, a vesting order, and damages for trespass and conversion.

The defendant vendor moved for summary judgment, arguing that the parcel conveyed was the exact property described in the registered plan and protected by the Land Titles Act.

The court held that, because the property was registered under the land titles system and no fraud was pleaded, the purchasers could not obtain rectification of title or a vesting order inconsistent with the registered parcel.

Summary judgment was granted dismissing the claims for declaratory relief and a vesting order.

Claims for damages relating to trespass and removal of soil raised triable issues and were permitted to proceed to trial.