A.C.R. Whitten

A federal Crown corporation applied for a declaration that a municipal by-law regulating the placement of community mailboxes and imposing a permit requirement and moratorium was invalid.

The court held the by-law was void for vagueness because it provided no intelligible standards guiding the director’s discretion over permit approvals.

The by-law also conflicted with federal legislation and regulations governing postal services, frustrating the federal purpose of enabling efficient mail delivery.

Applying constitutional doctrines including paramountcy, interjurisdictional immunity, and federal Crown immunity, the court found the municipality had impermissibly intruded into the federal jurisdiction over postal services.

The by-law was therefore inoperative and of no force or effect in relation to community mailboxes.

The plaintiff subcontractor moved to strike the defendants’ pleadings for alleged non‑compliance with a prior court order requiring an accounting of trust funds under s. 8 of the Construction Lien Act and sought partial summary judgment declaring a breach of trust.

The defendants produced extensive accounting records but did not provide cancelled cheques, explaining the practical difficulty and asserting that sufficient project funds had been received to satisfy any proven entitlement.

The court held that striking pleadings is an extreme remedy and found the defendants had substantially complied with the order.

The request for a declaration of breach of trust was also premature because entitlement to the remaining disputed contract balance had not yet been determined.

The court directed that the disputed funds be paid into court or an agreed investment vehicle pending trial.

Following a jury trial dismissing an occupiers’ liability claim arising from a workplace accident at a homeowner’s property, the successful defendant sought costs.

The defendant had previously delivered a Rule 49 offer to dismiss the action without costs, which was more favourable than the eventual jury verdict.

The court considered the discretion under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including the simplicity of the case, the modest value of the claim, and the conduct of the litigation.

While the defendant was entitled to costs, the court found the requested amounts excessive for what was effectively a simple case resembling a Small Claims Court matter.

The court fixed modest costs payable by the plaintiff.

Following an earlier judgment concerning the conduct of a fiscal guardian under the Substitute Decisions Act, the court determined the appropriate costs award.

The applicant sought costs on a substantial indemnity basis against the respondent whose management of the incapable person’s assets had been found highly improper.

The court held that costs should not be borne by the incapable person or estate where doing so would undermine the protective objectives of the statute.

Given the respondent’s conduct before and during the litigation, substantial indemnity costs were justified, though certain portions of the legal bill were reduced due to concerns about duplication of effort within counsel’s team.

Costs were ordered payable by the respondent within 30 days of entry of judgment.

In a complex construction lien dispute involving multiple related actions arising from the redevelopment of a municipal facility, several parties brought a motion to vary a prior case management order to establish a trial sequence.

The consolidated litigation involved lien claims, bond claims, and related economic loss and trust claims among a municipality, a general contractor, sub‑trades, architects, and bonding parties.

The moving parties sought to try the sub‑trades’ lien claims first, followed by the general contractor’s lien claim and then the remaining actions.

The court held that a case management judge has broad procedural authority under Rule 77 to manage litigation efficiently and may vary earlier procedural orders where new circumstances arise.

Considering a conditional settlement offer and the potential for significantly shortening the litigation, the court granted the motion and ordered the proposed trial sequence.

Following trial, the court determined entitlement and quantum of costs after the defendant succeeded and the plaintiff failed to respond to the defendant’s bill of costs.

The court considered the presumptive consequences under Rule 49.10 where a party obtains a result as good as or better than a settlement offer, as well as the discretionary factors under Rule 57.01.

While acknowledging the plaintiff’s sympathetic financial circumstances, the court held that sympathy cannot displace the usual costs consequences where the plaintiff was represented by experienced counsel and proceeded despite litigation risks.

The court scrutinized the defendant’s bill of costs and reduced several claimed amounts due to lack of detail and excessive disbursements, including photocopying and expert witness preparation fees.

Costs were fixed with partial indemnity before the offer and substantial indemnity thereafter, subject to reductions.

Following a successful summary judgment motion by the plaintiff bank enforcing guarantees, the court determined the appropriate costs award.

Although the guarantees entitled the plaintiff to substantial indemnity costs, the court exercised its discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to scrutinize the reasonableness and proportionality of the claimed amounts.

Certain time entries, including preparation for cross-examinations related to a defence under the Canada Small Business Financing Act, were found excessive and reduced.

The court also considered that the defendants had previously succeeded on a motion to compel answers and that costs relating to that step should not be included.

Costs were fixed at $18,000 in fees plus $3,879.04 in disbursements.

Following a status hearing under Rule 48.14(8) of the Rules of Civil Procedure concerning potential dismissal for delay, the court addressed the issue of costs.

The defendant had sought dismissal of the action due to delay, while the court instead facilitated an agreement on a timetable for further steps to move the matter toward trial.

The plaintiff, who had previously been self‑represented and had made allegations against opposing counsel, later sought costs.

The court concluded that awarding costs to the plaintiff would reward inappropriate conduct and noted that dismissal was a legitimate request under the rule.

No costs were awarded.

A lender moved for summary judgment against individual guarantors following default on a small business loan.

The defendants argued that alleged non-compliance with the Canada Small Business Financing Act and its regulations voided or limited their liability under the guarantees.

The court held that the statutory regime governs the lender’s entitlement to reimbursement from the federal government and does not alter the contractual obligations between lender and borrower or guarantors.

Any non-compliance would only disentitle the lender from recovering under the statutory program, not invalidate the guarantees.

Finding no genuine issue requiring a trial, the court granted summary judgment against the guarantors.

Following an earlier endorsement striking the plaintiffs’ statement of claim as statute‑barred under the Limitations Act, the court addressed the appropriate quantum of costs.

The defendant bank sought costs after successfully obtaining dismissal of the claim, which originally sought $6 million in damages.

The court considered the discretion under s.131(1) of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, including proportionality, the complexity of the issues, and the conduct of the parties.

Although the plaintiffs had engaged in some procedural recalcitrance and prior costs had already been ordered against them, the court noted that the litigation ultimately narrowed to a single issue and involved limited complexity.

Costs of $16,000 inclusive of HST, plus disbursements of $1,084.24, were awarded to the defendant.

Application concerning the removal of an attorney for property under a continuing power of attorney pursuant to the Substitute Decisions Act, 1992.

The applicant alleged that the co‑attorney breached fiduciary duties through mismanagement of the incapable person's assets, failure to account, risky investments, and lack of transparency.

The court reviewed statutory duties of attorneys under ss. 32, 37, and 39 of the Act and considered evidence of the grantor’s declining cognitive capacity and financial vulnerability.

The court found strong and compelling evidence of misconduct and neglect, including speculative investments, unpaid taxes, failure to keep proper accounts, and disregard of fiduciary obligations.

The respondent was removed as attorney for property and the remaining co‑attorney was left as sole attorney subject to ongoing accounting obligations.

Following a prior ruling ordering the discharge of a condominium common expense lien under s. 85 of the Condominium Act, the court determined the appropriate costs award.

The court emphasized that costs are discretionary under s. 131(1) of the Courts of Justice Act and guided by the principles in Rule 57.01 of the Rules of Civil Procedure, including complexity, importance of the issues, and litigation efficiency.

The court found that the responding party’s former counsel had taken an unnecessarily complex and evasive approach to what should have been a straightforward statutory process, generating unnecessary expenses.

While the conduct did not warrant substantial indemnity costs, it justified a level of costs between partial and substantial indemnity.

The applicant was awarded $10,000 in legal fees plus HST and $1,098.75 in disbursements.

Following a successful motion by the plaintiff to strike portions of the statement of claim, the court determined the appropriate costs award.

The plaintiff sought $12,816.24 on a partial indemnity basis.

The court reviewed the discretion to award costs under s. 131 of the Courts of Justice Act and the factors under Rule 57.01 of the Rules of Civil Procedure, including the complexity of the issues, efficiency of the proceeding, and conduct of the parties.

The court noted the breadth of the original motion challenging several tort claims and the preparation required by the plaintiff’s counsel.

Costs were fixed at a reduced amount as fair and reasonable in the circumstances.

A mortgagee applied for an order discharging a condominium lien after paying the arrears of common expenses and legal costs claimed by the condominium corporation.

Despite receiving payment, the corporation’s counsel refused to discharge the lien, asserting entitlement to additional legal fees allegedly incurred in responding to litigation initiated by the unit owners.

The court held that s. 85 of the Condominium Act only permits recovery of reasonable legal costs and expenses causally connected to collecting the arrears.

The additional fees were inadequately documented, not shown to be reasonable, and largely related to unnecessary or unrelated litigation activity after the arrears had been satisfied.

The court ordered the lien discharged, directed that the claimed expenses be assessed, and invited submissions on potential cost consequences against the law firm under Rule 57.07.

The defendants moved under Rules 21.01 and 25.11 of the Rules of Civil Procedure to strike portions of the plaintiff’s statement of claim alleging conspiracy, intentional interference with contractual relations, and personal liability of individual defendants, or alternatively for further particulars.

The action arose from an agreement for the acquisition of corporations owned by the plaintiff, followed by allegations that the defendants diverted assets, issued fraudulent invoices, and caused the companies’ insolvency.

The court reviewed the pleading standards applicable to motions to strike and emphasized the low threshold required to sustain pleadings where material facts supporting recognized causes of action are alleged.

It held that the pleadings sufficiently alleged elements of civil conspiracy, intentional interference with contractual relations, and potential personal liability through closely held corporate entities.

The motion to strike was dismissed and the defendants were ordered to deliver a statement of defence.

In a murder prosecution, the court considered a voir dire on the voluntariness of several statements given by the accused to police in 2002.

The defence argued the statements were involuntary due to lack of a proper caution, deceptive investigative tactics, and the police use of evidence previously obtained in breach of the accused’s s. 8 Charter rights.

The court held that the absence of a caution and police deception did not undermine voluntariness, as the accused understood her right to silence and demonstrated sophistication during the interviews.

However, fairness concerns arose where police referenced material seized unconstitutionally from a gun locker.

The court ruled the statements voluntary but ordered that portions referring to that material be excised.

The accused brought a pre‑trial motion seeking exclusion of cocaine and related paraphernalia discovered in a knapsack during the execution of a valid search warrant at a residence where he was merely a "found in" occupant.

The court considered whether the accused had a reasonable expectation of privacy in the knapsack under the framework in R. v. Edwards.

Applying the totality of the circumstances, the court held that the existence of a valid warrant authorizing a search of the premises eliminated any objectively reasonable expectation of privacy in items located within the residence.

Alternatively, the court held that even if a Charter breach had occurred, the evidence would not be excluded under the s. 24(2) analysis in R. v. Grant.

The evidence was admitted and the motion to exclude was dismissed.

During a murder trial, the defence challenged the admissibility of a journal and cassette recording seized from a locked gun locker in the marital home, arguing the search violated the accused’s s. 8 Charter right against unreasonable search and seizure.

The court found the accused had not provided legally valid consent for police to open the locker and seize the items, resulting in a Charter breach.

Applying the s. 24(2) framework from Grant, the court assessed the seriousness of the police conduct, the impact on the accused’s privacy interests, and society’s interest in adjudication on the merits.

The police were found to have acted in good faith during the early stages of a homicide investigation and reasonably believed consent had been given.

Balancing the factors, the court concluded that admitting the evidence would not bring the administration of justice into disrepute and ruled the items admissible.

The accused was charged with first degree murder in relation to the death of her spouse.

The Crown sought a ruling that multiple statements made by the accused to police during the investigation were voluntary and therefore admissible.

The defence argued the statements were involuntary because the accused had become the primary suspect during the investigation but was not cautioned, and police misled her about her status.

Applying the confessions rule and the operating mind doctrine, the court assessed the context of the interviews, the accused’s sophistication, and the absence of coercive police conduct.

The court concluded the accused understood she was speaking with police and that her statements could be used as evidence, and that the police conduct, including limited deception, did not undermine voluntariness.

Following a Rule 21.01(1) motion to strike portions of a statement of claim alleging civil conspiracy and misappropriation of funds, the court previously struck the claim entirely against one defendant while granting leave to amend as against other moving defendants.

The parties provided costs submissions.

The plaintiff indicated its intention to bring a Rule 59.06 motion seeking reconsideration and leave to amend the pleadings against the defendant whose claim had been struck.

The court held that the differing procedural positions of the defendants could affect the proper assessment of costs and that determining costs immediately risked a potentially inequitable or duplicative award.

The court therefore adjourned the determination of costs until after the anticipated Rule 59.06 motion.