CITATION: R. v. Pusey, 2026 ONSC 340

COURT FILE NO.: CR-24-50000018 & CR-24-50000524

DATE: 20260116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RENARDO PUSEY

Corena McNeill, for the Crown

Remy Sansanwal, for Renardo Pusey

HEARD: January 6, 2026

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

REASONS FOR JUDGMENT ON APPLICATION TO STRIKE A GUILTY PLEA

R.F. GOLDSTEIN J.

1On April 10, 2025, Mr. Pusey pleaded guilty to one count of sexual assault. Sentencing was adjourned and a pre-sentence report was ordered. In the pre-sentence report, Mr. Pusey indicated that he thought that the complainant was consenting. That was, obviously, a problem. He retained a new lawyer and brought an application to strike the plea. He says that during the days leading up to the plea he was not in a position to make proper decisions. As a result, he asks that the plea be struck and that a trial be held.

2I find that there is no basis to strike the plea. The plea was voluntary, informed, and unequivocal. Mr. Pusey has simply changed his mind. There is no basis to find a miscarriage of justice. For the reasons that follow, the application is dismissed.

BACKGROUND

3The Crown alleged that the complainant and Mr. Pusey were at Mr. Pusey’s apartment on the evening of December 30, 2022. There was a small gathering at Mr. Pusey’s apartment. At about 1 am on December 31, 2022, the complainant said she wasn’t feeling well. Mr. Pusey suggested she lay down in his room. Mr. Pusey came in and they kissed consensually. The Crown alleges that although the complainant told him to stop, Mr. Pusey had sex with her. He was charged and turned himself in to the police. He was released on bail.

4On April 7, 2025, Mr. Pusey was required to appear before me in Trials In Holding Court to start his trial. He had elected trial by judge and jury. He was, however, arrested while in the courthouse on some outstanding warrants. He was taken to the Ontario Court of Justice for an appearance and possible bail hearing. Obviously, his trial could not start that day.

5The next day, April 8, 2025, Mr. Pusey was scheduled to commence his trial before Justice Pinto. Mr. Pusey was not brought to Justice Pinto’s courtroom until the afternoon. There were discussions of scheduling, challenge for cause, and the availability of a jury panel. No jury panel was available and so Mr. Pusey’s trial was adjourned to April 9, 2025.

6After the adjournment on April 8, Ms. Griffiths, Mr. Pusey’s counsel, and Mr. Pusey met in the cells. According to his affidavit, Mr. Pusey raised the question of a potential resolution for the first time. He says that he was frantic, confused, and nervous about being in custody following the arrest. He was scared and worried because of the nature of the charges. He says he was aware that another person charged with sexual offences had been injured and died while in custody. He believed he was at a heightened risk. According to her affidavit, Ms. Griffiths wanted to use the time to prepare for his trial testimony and met with Mr. Pusey for that purpose. She challenged him and told him how the cross-examination would likely go if he went to trial and testified. She suggested that he needed to do more. At that point, M. Pusey asked about the deal the Crown was offering. Ms. Griffiths said she would discuss it with the Crown. She did. Ms. McNeill, Crown counsel, indicated that the Crown’s position was 3 years open.

7That day, April 9, 2025, the parties appeared again before Justice Pinto. The matter was stood down for a judicial pretrial before me. Justice Pinto later adjourned the trial to the next day, April 10, 2025, before me. Mr. Pusey met with Ms. Griffiths in the cells again. Mr. Pusey authorized Ms. Griffiths to continue the resolution discussions and have a judicial pretrial with me. Ms. Griffiths communicated to him that a conditional sentence in a sexual assault would be rare, but they could ask for one. Mr. Pusey authorized Ms. Griffiths to continue the pre-trial discussions. A pretrial was held with me. After, Ms. Griffiths communicated to Mr. Pusey that it was possible that he could receive a conditional sentence. Mr. Pusey stated in his affidavit that he did not fully understand the seriousness of his immigration consequences of a plea to sexual assault. As he put it, “I know my counsel told me there could be consequences, but I did not appreciate at the time what those consequences entailed. I did not know or appreciate the serious immigration consequences are the time.” He states that he later learned that as a permanent resident he could be rendered inadmissible to Canada if found guilty of sexual assault.

8Ms. Griffiths, in her affidavit, stated that she met with Mr. Pusey again on April 9, 2025. They discussed the Crown’s draft agreed facts. She told Mr. Pusey that if he pleaded guilty, they could ask for a conditional sentence. Mr. Pusey indicated he wanted to plead guilty. She was not satisfied, however. She wanted him to think about it. She was concerned about the timing. She was also concerned that her comments about his potential evidence were affecting him. She also says that they had the following discussions about the immigration consequences:

In regards to his immigration issues, I respectfully disagree with Mr. Pusey’s characterization of our conversations. I told him during this conversation that I could not give him immigration advice as I do not practice immigration law, and that he should avail himself of that advice. He did not want to. I told him explicitly, more than once, that my understanding of immigration law told me that because Sexual Assault had a 10-year maximum sentence, this meant that he would likely become automatically subject to deportation proceedings of some sort. Every time I brought this up, he would brush me off. I remember him telling me he had a job and a kid, so they wouldn’t deport him. I told him those were factors in his favour, but they may not care either because of the conviction. I told him multiple times that entering the plea would be putting himself at risk in this regard, and every time he would respond along the lines of “it’ll be fine”. I remember one of his responses being a wave of his hand and “nah, I’ll be good”. He repeated a couple of times that he’d “deal with that if it happened”. At the time, I remember thinking that he seemed to believe he could talk his way out of being deported somehow.

9Ms. Griffiths and Mr. Pusey both testified and were cross-examined on these points.

10The parties appeared before me on April 10, 2025. Ms. Griffiths indicated that Mr. Pusey intended to enter a plea and ask for a pre-sentence report to be prepared. There was to be no joint submission. I then conducted a plea inquiry with Mr. Pusey. He indicated he was prepared to enter a guilty plea to one count of sexual assault. He was arraigned, re-elected to trial before judge alone, and pleaded guilty. The facts were read in by Ms. McNeill. Mr. Pusey, through Ms. Griffiths, agreed to the facts. I found him guilty. Sentencing was adjourned to obtain a pre-sentence report. A sentencing hearing for June 11, 2025, was eventually set.

11Prior to June 11, 2025, the parties and the court received the PSR. In it, the report writer stated:

The subject expressed remorse and accepted responsibility towards the present offences. At the time of the offence, he says he believed the victim was consenting.

12Obviously, sentencing did not go ahead. Ms. Griffiths applied to be removed from the record. I did so, eventually, although not at that time and not until Mr. Pusey had new counsel in place. Mr. Pusey retained Mr. Sansanwal. The application to strike the plea was heard on January 6, 2025. As I mentioned, Ms. Griffiths testified, as did Mr. Pusey.

ISSUES AND ANALYSIS

Mr. Sansanwal argues that Mr. Pusey’s plea was uninformed and involuntary. His plea was uninformed because he did not fully understand the immigration consequences of pleading guilty. He did not fully appreciate that he could be rendered inadmissible to Canada. He only learned of the true consequences after he entered his plea. The plea was also involuntary. Mr. Pusey’s emotions were such that his ability to make a conscious and volitional decision was compromised. He had been arrested in the courthouse on the day his trial was supposed to start. He had been out of custody over two years. He learned about an inmate charged with sexual offences who had died after another inmate assaulted him. Mr. Pusey also wanted to get out of custody. He believed he might be sentenced to a conditional sentence, allowing him to spend his sentence in the community.

13Even if the plea was informed and voluntary, the defence position is that I should exercise my discretion to prevent a miscarriage of justice. Mr. Pusey made a hasty decision under oppressive circumstances. He had maintained his innocence up until his trial and plea. He has maintained his innocence since then. Mr. Sansanwal argues I should therefore strike the plea.

14I respectfully do not agree.

15A guilty plea must be voluntary, unequivocal, and informed be valid: R.v. Wong, 2018 SCC 25 at para. 3. The accused must understand the nature of the allegations, the effect of the plea, and the consequences of the plea: R. v. T. R. (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514, 1992 O.J. No. 1914, 1992 CarswellOnt 117 (Ont.C.A.) at para. 14. The onus is on the accused to show on a balance of probabilities that the plea should be struck. The accused must show that a “pre-condition of pleading guilty was not met and preserving the plea would result in a miscarriage of justice”: R. v. Palmer, 2024 ONCA 15.

16A plea entered in open court where an accused was assisted by counsel is presumed to be valid: R. v. Eastmond, 2001 7498 (ON CA), [2001] O.J. No. 4353, 2001 CarswellOnt 3911 (Ont.C.A.) at para. 7; R. v. Gibbs, 2022 ONCA 816 at para. 4.

17I turn to the issues.

(a) Was Mr. Pusey’s Plea Voluntary?

18I do not agree that Mr. Pusey’s plea was not voluntary. The Court of Appeal in R. v. Gibbs, supra, set out the test at paras. 5-6:

In this case, the appellant alleges incapacity to plead guilty because of his mental illness. As a result, the onus is on the appellant to demonstrate on a balance of probabilities that he "lacked the capacity to make an active or conscious choice to plead guilty. To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice": R. v. Cherrington, 2018 ONCA 653, at para. 21.

The appellant has not met his onus to demonstrate that his plea was not voluntary. Absent evidence to the contrary, which is not present here, the appellant is presumed to be capable. There is no question that the appellant has suffered from mental health issues for many years. It has been held that prolonged administrative segregation causes a minimum level of harm to inmates with serious mental illness, and that prolonged administrative segregation exposes inmates to a risk of serious psychological harm… However, the fact that the appellant has mental health issues does not automatically render him incapable. Without evidence of the specific effects administrative segregation had on the appellant, it is not possible to infer that his time in administrative segregation deprived him of the limited capacity required to plead guilty…

19An accused person who claims that a plea was involuntary must show that they lacked the capacity to make a conscious volitional choice. The standard is that of a limited cognitive capacity. The accused must simply understand the process in which the plea was entered; be able to communicate with counsel; and be able to make an active or conscious choice: R. v. Cherrington, 2018 ONCA 653 at paras. 21, 38. Being in a stressful situation alone is not enough to invalidate a plea. No doubt Mr. Pusey felt himself under some pressure. That, of course, is entirely understandable for a person in custody but as Justice Doherty stated at para. 18 of R. v. T.R., supra:

In his affidavit the appellant asserts that he was anxious and felt himself under pressure when he entered his pleas. No doubt most accused faced with serious charges and the prospect of a substantial jail term have those same feelings. Absent credible and competent testimony that those emotions reached a level where they impaired the appellant's ability to make a conscious volitional choice, the mere presence of these emotions does not render the pleas involuntary.

20Ms. Griffiths stated in her affidavit that it was Mr. Pusey who first raised the issue of a guilty plea. She was concerned that he was doing so for the wrong reasons. In her trial preparation, she had pointed out the flaws in his testimony, explained the W.D. principles to him, and told him he needed to do better. She testified that her concern was that he was pleading out of a fear that he would not be believed. She did not think that was good enough if he wasn’t actually guilty. She refused to allow him to plead until he had a chance to think about it. In fact, Mr. Pusey entered his plea until two days later. At that point Ms. Griffiths went over the facts with him. She asked him if those were the facts he was willing to admit. He said yes. She testified that she asked him 3 or 4 times if he was sure, and he said “yes.”

21Mr. Pusey testified that he was shocked when he was arrested in the courthouse. He was not expecting it. He testified that he could not recall any conversation with his lawyer about turning himself in. He was also concerned because when he got to the Toronto South an officer told him that people charged with sexual offences could be at risk in the general population. He did say that he has lied to other inmates about the nature of his charges, but nobody targeted him or threatened him.

22Mr. Pusey further testified that he pleaded guilty out of fear. He was nervous about testifying in front of a jury. He felt that people always believe women over men although he agreed that Ms. Griffiths had explained the concept of proof beyond a reasonable doubt to him. He was concerned because he had heard that someone had died at Toronto South who also had been charged with sexual offences. He also thought that he might be able to get a conditional sentence if he pleaded guilty. He was thinking about his family, about going back to work, and getting out of jail. He testified that the plea inquiry was “like a blur”. He also testified that he was not true that he forced the complainant to have sex, and that he simply pleaded guilty to get out of custody faster.

23In evaluating Mr. Pusey’s evidence, I have some significant concerns about his credibility. Mr. Pusey testified that he was not aware that he was about to be arrested on April 7, the first day of his trial. Ms. McNeil, Crown counsel, had emailed Ms. Griffiths on twice prior to the trial indicating that there were outstanding warrants for Mr. Pusey and suggesting that he turn himself in. When Ms. Griffiths was asked whether she told Mr. Pusey about the warrants, she hesitated to answer. Mr. Sansanwal objected on the grounds that the waiver of solicitor-client privilege did not cover this area. Ms. McNeil stated that she would be asking the court to draw an adverse inference of credibility against Mr. Pusey as a result. I indicated that I might well draw such an inference, but the privilege was maintained, and Ms. Griffiths could not answer the question.

24As I have noted, Mr. Pusey testified (and swore in his affidavit) that he was surprised when he was arrested. He said he did not know about the warrants for his arrest. I reject his testimony. I do draw an adverse inference based on the unwillingness to waive privilege on this point. His argument about being highly stressed about the effects of incarceration rest, to some degree, on his surprise at being arrested. His refusal to allow Ms. Griffiths to answer the question calls into question his credibility on the point. I find it unlikely that Ms. Griffiths did not inform him of the outstanding warrants. No allegation of incompetence of counsel has been made. I presume that Ms. Griffiths did her job and told her client about the warrants. That affects his overall credibility as it has to do with a major point.

25I don’t doubt that Mr. Pusey was motivated to get out of custody. I don’t doubt that he felt himself under pressure. I also don’t doubt that his calculus at that point was that he might be able to get a conditional sentence – it was something Ms. Griffiths said might happen, but she warned him it was not a sure thing. There is no evidence, however, that he was suffering a cognitive challenge, or that the pressure was such that it deprived him of the opportunity to make a conscious, volitional choice. In any event, simply wanting to get out of custody is not a basis to find that a plea was involuntary: R. v. Pivonka, 2007 ONCA 572 at para. 18.

26Moreover, Mr. Pusey expressed several times in court that he was pleading voluntarily, and also expressed that he agreed with the facts.

27I also reject the notion that Mr. Pusey did not have a full understanding of what was happening. Prior to entering the plea, Ms. Griffiths made him think about it overnight. She did not want him to make a hasty decision to plead based on the wrong reasons. It was Mr. Pusey, on both his evidence and Ms. Griffiths evidence, who raised the possibility of a plea in the first place.

28Mr. Pusey then signed extensive written instructions. The instructions noted the following:

• Mr. Pusey understood that he was giving up his right to a trial;

• He acknowledged that the facts he would be admitting to were correct;

• He also acknowledged that he was pleading freely and voluntarily and without any pressure from anyone;

• He was not under the influence of any substances and was of sound mind;

• He understood that the Crown would ask for a sentence of three years, his own lawyer would ask for a conditional sentence, but that the sentence would be up to the judge.

29In open court I also conducted a plea inquiry with Mr. Pusey. I asked him several questions about whether he was pleading voluntarily; whether anyone had put any pressure on him; and whether he understood that type and length of sentence was up to me. I also had the following exchanges with him:

THE COURT: And in this case, you're pleading guilty to sexual assault. That means that you admit that – you're going to be admitting that you touched somebody in a sexual manner without their consent. Do, do you understand that that's what the charge involves?

RENARDO PUSEY: Yes, sir.

30We also had the following exchange:

THE COURT: Okay. And when a person pleads guilty, it's very important that they plead guilty because they agree they committed that particular offence. You can't plead guilty just to get out of this whole process. So you've got to promise me that you're not pleading guilty just to get out of this. Is that, is that the case?

RENARDO PUSEY: No, Your Honour.

THE COURT: Okay. So you're not just pleading guilty to get out of it? I know you – I know you're in custody at the moment. You're not pleading guilty just to get this over with?

RENARDO PUSEY: I'm taking full responsibility for [indiscernible].

THE COURT: I, I'm sorry?

RENARDO PUSEY: I'm taking full responsibility.

THE COURT: Well, but my, my point is you have to actually agree that you're guilty of the offence. That's my point. And it can't be that you're just doing it to get it over with? Do you understand that?

RENARDO PUSEY: Yes, sir.

31At that point I was satisfied that Mr. Pusey understood that he was pleading guilty to sexual assault and that he understood that he would be admitting that he understood the elements of the offence of sexual assault. I was also satisfied that he was not pleading guilty because he was trying to get out of jail more quickly. After reviewing the evidence and assessing Mr. Pusey’s evidence (particularly his credibility) my view has not changed. Mr. Pusey’s comment to the probation officer – that he thought the complainant was consenting – and his testimony before me, are directly contradicted by the fact that he specifically stated that he understood these points at the time of the plea. Moreover, for the reasons I have already mentioned, I do not find Mr. Pusey to be entirely credible.

32For these reasons, I reject Mr. Pusey’s argument that the plea was involuntary.

(b) Was Mr. Pusey’s Plea Uninformed?

33I do not accept that Mr. Pusey’s plea was uninformed. He was aware that there could be significant immigration consequences if he pleaded guilty.

34As the Supreme Court of Canada stated in R. v. Wong, 2018 SCC 25, an accused person wishing to withdraw a guilty plea must show that he was not aware of the collateral consequences of the conviction. The accused person must also show that he would have proceeded differently if informed of the consequences. The onus lies on the accused. In evaluating whether the plea was informed, the court must first “determine what the appellant actually knew” and make factual findings. The court must then “determine whether the accused was uninformed”: R. v. Singh, 2025 ONSC 5997 at para. 9. As my colleague Dennison J.’s stated in that case at paras. 59-60 (I excerpt the key passages):

The jurisprudence instructs judges that a case-by-case analysis must be taken in determining if an accused is sufficiently informed of the collateral consequences of a plea. The jurisprudence is consistent that the knowledge of the possibility of deportation is sufficient for a plea to be informed. The accused need not have knowledge of their appellate rights within the immigration process…

More recently, in R. v. Johnson, 2024 SKCA 58 at para. 26, the Saskatchewan Court of Appeal discussed the degree of information that is required to find a plea was informed:

That general tenet is that it is sufficient, for the purposes of an informed plea, for an accused to know of the possibility that a criminal conviction or sentence will place his or her immigration status in serious jeopardy. Two aspects of this approach warrant elaboration. First, the accused need not be certain, or even confident, that immigration consequences will follow collaterally from the particular guilty plea: see Tyler; R v Shiwprashad, 2015 ONCA 577, 328 CCC (3d) 191; and R v Kitawine, 2016 BCCA 161. Rather, the accused need only know that such immigration consequences are a possibility. Second, the accused need not know the details of those immigration consequences, but he or she must have a general understanding that they involve "serious jeopardy". In other words, proof that an accused knew of the possibility of removal or deportation is sufficient to refute the assertion that a plea was uninformed. [Bolded emphasis added.]

Indeed, in cases such as this, where a person is inadmissible and there is no right of appeal, courts have not required that the accused have specific knowledge that they will be deported…

35I respectfully agree with and adopt my colleague’s cogent analysis. I find that Mr. Pusey was fully informed that deportation was a real possibility if he was found guilty of sexual assault.

36Mr. Pusey testified that it was only after getting meeting with the probation officer for the pre-sentence report, reading material at the jail, and upon discussing the matter with a relative that he understood how serious the immigration consequences could be. He stated that he only understood after that he could be rendered inadmissible to Canada. He stated in his affidavit:

I know my counsel told me there could be consequences, but I did not appreciate at the time what those consequences entailed. I did not know or appreciate the serious immigration consequences at the time.

37In cross-examination, Mr. Pusey contracted himself. He agreed that Ms. Griffiths warned him that he could be deported automatically. His written instructions also stated:

I understand that by entering a plea of guilty to the charge of Sexual Assault, I could face immigration consequences in the future. My lawyer has advised me that because Sexual Assault has a maximum sentence of 10 years, this means that I am very likely to have issues with the Immigration Division in the future. Despite knowing this, I wish to proceed with my plea.

38Ms. Griffiths disagreed with Mr. Pusey’s evidence as set out in his affidavit. She stated in her affidavit and testified that she told Mr. Pusey that although she was not an immigration lawyer, that he could face significant immigration consequences upon being found guilty. I accept, based on all the circumstances, Ms. Griffiths’ evidence and prefer it to Mr. Pusey’s evidence. Mr. Pusey signed instructions and his credibility is compromised, as I have mentioned.

39Mr. Pusey had previously dealt with the immigration authorities on this very issue. A guilty plea in 2017 to other charges was structured to avoid immigration consequences. In 2023, he had involvement with the immigration authorities. The pre-sentence report in this case stated:

He detailed previous involvement with immigration in 2023. He described the experience as the most frightening moment of his life. With the support of his immigration lawyer, he was ultimately granted permission to remain in Canada.

40I cannot accept that Mr. Pusey did not understand that he might face significant immigration consequences if he pleaded guilty to sexual assault.

41Ms. Griffiths also stated that Mr. Pusey was quite dismissive of the potential immigration consequences. He also said he did not wish to speak to an immigration lawyer. This is borne out by the plea inquiry:

THE COURT: Okay. All right. And my last question. I ask everyone this. Are you a Canadian citizen?

RENARDO PUSEY: No.

THE COURT: You're not. Okay. What's your status in the country?

RENARDO PUSEY: Permanent resident.

THE COURT: You're a permanent resident. Okay. Have – do you have an immigration lawyer? Have, have you talked to an immigration lawyer about this?

RENARDO PUSEY: Not at the moment.

THE COURT: Not at the moment. Ms. Griffiths, do you know if he's got immigration counsel?

J. GRIFFITHS: Not that I'm aware of, Your Honour. I did advise him he could take the chance to get that advice. Obviously on a face value, I sort of know how this offence could affect an immigration status, so I...

THE COURT: Right.

J. GRIFFITHS: ...did explain that to Mr. Pusey. He understands it could affect his immigration status, and he advised me, despite knowing that, he does wish to proceed with the matter anyway.

THE COURT: Okay. That's important. Okay, Mr. Pusey? Because if you wanted a chance to talk to an immigration lawyer, I would give you that chance. But it sounds like you've already talked to your lawyer about that.

RENARDO PUSEY: Yes, sir.

THE COURT: Okay. Do you want that opportunity, or you want to go ahead?

RENARDO PUSEY: I want to go ahead.

THE COURT: I'm sorry? I didn't hear that.

RENARDO PUSEY: Let's go ahead.

THE COURT: I, I didn't, I....

J. GRIFFITHS: He's saying he wants to go ahead.

THE COURT: You want to go ahead. Okay. Just so it's clear, I – I'm giving you the opportunity to talk to an immigration lawyer if you want. But if you want to go ahead, that's fine, too, okay?

RENARDO PUSEY: Okay.

THE COURT: You understand that, Mr. Pusey?

RENARDO PUSEY: Yes, sir.

THE COURT: Okay. You still want to go ahead?

RENARDO PUSEY: Yes, sir.

42The weight of the evidence shows very clearly that Mr. Pusey was informed of the potential for deportation. He was given the opportunity to speak to an immigration lawyer and declined that opportunity knowing full well what the consequences could be.

43Should I Exercise My Discretion And Strike the Plea?

44As noted, Mr. Sansanwal argued that Mr. Pusey always maintained his innocence, except for the brief moment where he pleaded guilty.

45Respectfully, I see no basis to do so. Nothing unjust happened here. Many, probably the vast majority of accused people, maintain their innocence throughout criminal proceedings. Many of those people do so even in the full knowledge that they are guilty. That is their right, of course. They enjoy the presumption of innocence. That fact that an accused person has maintained their innocence before and after the plea is not, on its own, a basis to set it aside. Each case depends on its facts, of course. It is a case-specific analysis. Here, there is nothing about Mr. Pusey maintaining his innocence that causes me to believe it is unjust in any way. Without more, a mere assertion on its own is simply not a basis upon which to exercise my discretion and strike a guilty plea.

DISPOSITION

46The application is dismissed. Mr. Pusey will proceed to sentencing.

R.F. Goldstein J.

Released: January 16, 2026

CITATION: R. v. Pusey, 2026 ONSC 340