Dismissed
Civil Litigation: Dismissal for Delay
Arapakota, et al. v. Imex Systems Inc., et al., 2025 ONCA 367 (41897)
In July 2018, the Applicants, Damodar Arapakota and the Arapakota 2006 Family Trust, filed an application containing allegations against the Respondents, Krishnasamy Parthiban, Andrew Lindzon, Issa Nakhleh and Robert Saltsman. The Respondents were directors and/or shareholders of Imex Systems Inc., which was founded by Mr. Arapakota, who served as its Chief Executive Officer until his resignation in February 2018. The Applicants alleged the Respondents committed oppressive acts causing Mr. Arapakota and his family substantial personal and financial losses. In August 2023, the Respondents brought motions to dismiss the application for delay. The motion judge found the delay to be inordinate, inexcusable, and prejudicial to the Respondents, creating a substantial risk a fair hearing would no longer be possible. The motion judge granted the motions and ordered the Applicants pay costs to the Respondents in relation to the application and the motions. The Applicants appealed the decision; the Ont. C.A. found no error and dismissed the appeal with costs. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for an extension of time to serve the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to the respondents, Krishnasamy Parthiban, Andrew Lindzon, Issa Nakhleh and Robert Saltsman.”
Creditor-Debtor: Guarantees
Songhorigakien v. Bank of Montreal, 2025 ONCA 311 (41857)
The Respondent Bank of Montreal granted a $500K overdraft facility to a company in which the Applicant Shahin Songhorigakien was a 50% shareholder. The overdraft facility was personally guaranteed by Ms. Songhorigakien and her son. After the company defaulted under the overdraft facility and the Bank issued a formal demand for repayment of the full outstanding indebtedness, the Bank obtained default judgment against the company and Ms. Songhorigakien’s son. It then moved for summary judgment against Ms. Songhorigakien. Finding the Bank had made out a prima facie case, and Ms. Songhorigakien’s defences did not raise a serious issue requiring trial, the motion judge granted the motion for summary judgment and ordered Ms. Songhorigakien to pay the Bank $500K, as well as pre-judgment interest and costs. Ms. Songhorigakien appealed. Finding the motion judge’s reasons were clear, sound, based solidly on the evidence before her and contained no reversible errors, the Ont. C.A. dismissed the appeal with costs. “The motion for an extension of time to serve and file the applicant’s reply is granted. The application for leave to appeal…is dismissed with costs.”
Criminal Law: Jury Charges
Foreshaw v. R., 2024 ONCA 177 (41924)
In the early morning hours, the Applicant mistook the victim for the person who stole his backpack two days earlier. The Applicant and an acquaintance approached the victim on his bicycle. A confrontation ensued in which the victim was stabbed; he died of his injury. The acquaintance testified at trial the Applicant stabbed the victim, and the Applicant stated “I pushed it in him”. A bystander testified she saw two people approach a person on a bicycle, one of whom had his hands in his pockets, and the other of whom was gesturing with his hands. She did not see the stabbing. The Applicant also testified. His evidence was the acquaintance placed his hand on the handlebar of the victim’s bicycle and accused him of stealing the Applicant’s backpack. The Applicant testified he did not see the stabbing, but the acquaintance gave him a “vicious look” – his eyes wide open and blowing down with his mouth – as they walked away. The Applicant was disturbed by the look and left the area shortly afterward. He denied saying “I pushed it in him”. The acquaintance was not cross-examined with respect to whether he touched the handlebar of the victim’s bicycle, or about what look, if any, he gave the Applicant after the victim was stabbed. The Applicant sought a jury instruction that, before relying on the acquaintance’s evidence of the Applicant’s incriminating statement “I pushed it in him” for the truth of its contents, they must be satisfied beyond a reasonable doubt the statement was made. The trial judge declined to give this instruction. The trial judge also held the failure of the Applicant to cross-examine the acquaintance about the handlebar or his facial expression were violations of the rule in Browne v. Dunn and instructed the jury accordingly. The Ont. C.A. held no special instruction was required in relation to the incriminating statement, and the trial judge’s Browne v. Dunn determinations contained no errors in principle and were therefore entitled to deference; the appeal was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Criminal Law: Sexual Offences
Zhou v. R., 2024 ONCA 658 (42085)
There is a publication ban in this case, in the context of sexual assault and forcible confinement. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for a stay is dismissed. The motion for permission to file a lengthy memorandum of argument is granted. The time to serve and file the replies is extended pursuant to Rule 6(1) of the Rules of the Supreme Court of Canada. The application for leave to appeal…is dismissed.”
Labour Law: Grievances
Dongmo v. R., 2025 CAF 106 (41884)
The Applicant Firmin Nguepi Dongmo was an employee in the federal public service. He sued his employer in the Fed. Court, alleging he was a victim of psychological and criminal harassment, intimidation, defamation, false accusations and discrimination in the course of his employment. The employer claimed the dispute must be resolved administratively, through a grievance procedure, as set out in the Federal Public Sector Labour Relations Act. The trial judge in the Fed. Court granted the employer’s motion to strike and dismissed Mr. Dongmo’s action. The Fed. C.A. dismissed Mr. Dongmo’s appeal. “The application for leave to appeal…is dismissed with costs.”
Oral Hearing Ordered
Criminal Law: Excess Blood Drug Concentration
Kelly v. R., 2025 ONCA 92 (42050)
One evening in October 2021, the Applicant was driving in rural southwestern Ontario. The sun had set and it was dark. The posted speed limit on the highway the Applicant was using was 80km/h; he was travelling at least 116km/h. A horse-drawn buggy entered the roadway at an intersection. The Applicant did not see the buggy in time to stop; his vehicle collided with it. Both occupants of the buggy died from injuries sustained in the collision. During the police investigation that night, the Applicant admitted to being a chronic marijuana smoker and consented to providing two samples of his blood. Evidence established the Applicant’s blood drug concentration (“BDC”) exceeded the prescribed limit at the time of the collision. The parties agreed at trial there was no evidence of a causal nexus between the Applicant’s BDC and the collision. The Applicant was charged with operating a conveyance with an excess BDC under s. 320.14(1)(c), two counts of committing an offence under s. 320.14(1)(c) causing death under s. 320.14(3), and two counts of dangerous operation of a conveyance causing death under s. 320.13(3). The trial judge held it is insufficient the Applicant had a prohibited BDC and was operating a conveyance at the time he caused a death; a conviction for offences under s. 320.14(3) required a causal nexus between an accused’s BDC and the death of a victim. As the parties agreed there was no causal nexus between the Applicant’s BDC and the death of the victims, the Applicant was acquitted on those counts. The Ont. C.A.: the trial judge erred in his interpretation of s. 320.14(3); a plain reading establishes the elements are made out simply by operating a vehicle with excess BDC, and causing the death of a person; no causal nexus between the excess BDC and the cause of death is required; accused persons retain the benefit of the basic legal causation standard; the Crown must prove the Applicant’s actions were a significant contributing cause of death; because of the trial judge’s erroneous interpretation of s. 320.14(3), he did not make any finding as to whether the Crown had proven legal causation on this standard. The Ont. C.A. ordered a new trial on these counts. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for a stay of proceedings with respect to the judgment of the Court of Appeal is dismissed. It is not necessary to address the respondent’s motion for an extension of time. The request for an oral hearing of the application for leave to appeal…is granted pursuant to s. 43(1.2) of the Supreme Court Act. The hearing date will be fixed by the Registrar.”