A.D.K. MacKenzie

Following the dismissal of the appellant's appeal from a Small Claims Court order, the court determined the issue of costs.

The successful respondents sought costs despite their counsel acting on a pro bono basis.

The court rejected the appellant's arguments against awarding costs in pro bono cases, applying Court of Appeal precedent that costs awards are appropriate and necessary for successful pro bono litigants to ensure access to justice.

The court awarded the respondents partial indemnity costs of $2,557.

The Crown appealed a trial acquittal on a charge of sexual assault, arguing the trial judge erred by failing to properly consider the complainant’s evidence, by finding no sexual assault occurred, and by providing insufficient reasons.

The appeal court examined whether the trial judge correctly applied the credibility framework in R. v. W.(D.) and whether the reasons for acquittal were legally sufficient.

The court held that, read as a whole, the trial judge’s analysis demonstrated reliance on the second branch of the W.(D.) framework and properly rejected the complainant’s evidence as unreliable.

The reasons sufficiently explained the basis for reasonable doubt and did not disclose a reversible error of law.

The acquittal was therefore upheld.

The appellant appealed his conviction for driving with excess blood alcohol, arguing the trial judge erred in dismissing his Charter application to exclude breath sample evidence.

The appellant contended the trial judge gave insufficient reasons, misapprehended evidence regarding the officers' reasonable grounds for the breath demand, and erred in the section 24(2) analysis.

The Summary Conviction Appeal Court found no error in the trial judge's conclusion that the officers had reasonable grounds based on the appellant's driving, odour of alcohol, and unsteadiness.

The appeal was dismissed.

A contractor sued a municipal owner after being terminated from a major civic construction project shortly before substantial completion.

The owner alleged the contractor was in default for failing to meet milestones and failing to comply with scheduling and change directives.

The court held that even if breaches occurred, they did not amount to a fundamental breach justifying termination, particularly where the project was approximately 95–98% complete and delay damages could be compensated in money.

The court further found the owner had compromised the consultant’s contractual role of impartiality by directing the consultant’s notice of default and failed to act in good faith under the dispute resolution provisions.

The termination was therefore wrongful and invalid.

In the liability phase of a civil trial arising from a dispute between a construction contractor and a municipality, the court determined liability on the contractor’s claim and the municipality’s counterclaims.

The contractor succeeded on its claim and on its defence to the counterclaims.

The municipality’s counterclaims were dismissed.

The court indicated that detailed reasons would follow and directed the parties to provide written submissions regarding costs of the trial phase.

The appellant's action was dismissed by a Deputy Judge at a Small Claims Court settlement conference.

The appellant brought a motion before a second Deputy Judge to set aside the dismissal, which was denied for lack of jurisdiction.

The appellant appealed to the Divisional Court.

The court held that the original dismissal was a final order, meaning the second Deputy Judge correctly concluded he had no jurisdiction to hear what was effectively an appeal.

The court also declined to grant an extension of time to appeal the original dismissal order due to the lengthy delay and lack of intention to appeal within the statutory period.

In the context of an ongoing shareholder dispute and oppression proceedings concerning car dealerships, the parties jointly sought directions on the appropriate sales process to separate the dealership operations from the litigation in order to preserve value.

One group of shareholders proposed an asset sale of the dealerships, while the other proposed a share sale.

The court considered the impending deadline imposed by the common lender, which had threatened to enforce its security if the dealerships were not separated from the dispute by a fixed date.

Given the urgency and the practical realities of completing a transaction quickly, the court held that a share sale was the most efficient and time-sensitive method to effect the separation.

The court therefore approved the proposed share-sale process.

The appellant appealed impaired care or control and “over 80” care or control convictions from the Ontario Court of Justice.

The appellant argued that police breached his s. 10(b) Charter right to counsel by failing to facilitate contact with his named counsel after he requested a specific lawyer.

The trial judge found a breach but admitted the breath evidence under s. 24(2).

The summary conviction appeal court held that the police made no effort to facilitate contact with counsel of choice and that the breath technician’s later administration of the right to counsel could not cure the earlier breach.

The trial judge therefore erred in law in concluding the breach was saved, and the conviction could not stand.

Following an urgent family law motion in which the applicant successfully obtained an order requiring the respondent to release the child for return to the United Kingdom pursuant to an earlier court endorsement, the court addressed the issue of costs.

The applicant sought costs on a full indemnity basis under Rule 24(8) of the Family Law Rules, alleging the respondent acted in bad faith by refusing to comply with the prior order.

The court held that although the respondent intentionally breached the earlier endorsement, the breach was motivated by the child’s stated wish not to return to the United Kingdom and did not constitute bad faith.

Applying the factors under Rule 24(11), the court awarded partial indemnity costs to the successful applicant.

The defendant municipality brought a motion under Rule 31.11 seeking to read in discovery evidence of subcontractors in a construction dispute involving lien claimants.

After issuing reasons dismissing the motion, the court issued a supplementary endorsement addressing reply submissions that had not initially come to the judge’s attention due to an administrative issue.

The moving party argued that s. 15 of the Ontario Evidence Act permitted the use of discovery evidence of non-adverse parties against both subcontractors and the general contractor.

The court rejected that interpretation, holding that it would undermine the wording of Rule 31.11 limiting read‑ins to evidence against the adverse party.

The court accepted the reasoning in Cain v. Peterson as governing authority and affirmed dismissal of the motion.

The defendant municipality brought a motion seeking leave under Rule 31.11(1) of the Rules of Civil Procedure to read into evidence at trial excerpts from examinations for discovery of subcontractor lien claimants.

The motion arose in the context of a construction dispute and lien action concerning termination of a construction contract.

The responding party argued that discovery evidence given by one party cannot be read in against a different party in a multi‑party action.

The court held that the wording of Rule 31.11(1), specifically the use of the term “the adverse party,” restricts read‑in evidence to use against the party who provided it on discovery.

The motion was dismissed.

During a Trial Management Conference in a construction lien dispute, sub‑trade lien claimants raised concerns that the municipality’s defence and counterclaim lacked sufficient particulars regarding alleged deficiencies and delays attributed to various sub‑trades.

The court considered the purpose of particulars in civil proceedings, namely to define issues, prevent surprise, and facilitate trial preparation.

Although the municipality argued that extensive disclosure had been provided during discovery, the court held that the information must be presented coherently and with sufficient specificity.

The municipality was ordered to provide written particulars detailing the alleged deficiencies and delays, even where costs had not yet been incurred.

Following the dismissal of the plaintiff’s motion to amend a statement of claim to substitute named defendants for John/Jane Doe defendants, the court addressed costs between the plaintiff and one proposed defendant.

The proposed defendant sought partial indemnity costs after successfully opposing the motion.

The plaintiff challenged several components of the claimed costs, including preparation of a factum, travel time, and the total hours claimed, and argued that the interests of the proposed defendants were identical such that separate costs should not be awarded.

The court rejected those submissions, finding the proposed defendants’ interests were not the same and that separate representation was appropriate.

The court fixed fair and reasonable costs payable by the plaintiff.

Following a prior motion and cross‑motion concerning discovery sequencing, leave to conduct discoveries, and a site inspection under the Construction Lien Act and the Rules of Civil Procedure, the court addressed the issue of costs.

The plaintiff argued it was entirely successful and sought substantial indemnity costs based on alleged obstructive conduct by the defendant.

The defendant asserted its cross‑motion was successful and that the plaintiff’s conduct necessitated the motion.

The court accepted the plaintiff’s position that the defendant’s submissions attempted to re‑litigate issues already determined.

Costs were awarded to the plaintiff on a partial indemnity basis.

The plaintiff in a construction lien action sought leave to conduct examinations for discovery and a site inspection after the action had been set down for trial in order to preserve its lien within the statutory time limit.

The defendant opposed the motion and brought a cross‑motion concerning the sequencing of discoveries and payment of copying costs for productions.

The court considered s. 67 of the Construction Lien Act and Rule 48.04 governing interlocutory steps after an action is set down for trial.

The court accepted that the trial record had been filed solely to maintain the lien and that the plaintiff had not abandoned its intention to conduct discovery.

Leave was granted for discoveries and a site inspection, with sequencing ordered and copying cost issues reserved.

The plaintiff sought leave under s. 67(2) of the Construction Lien Act and Rule 48.04 of the Rules of Civil Procedure to conduct examinations for discovery in a construction lien action.

The court granted leave and directed that the defendant conduct its discovery of the plaintiff first.

The court also ordered a site inspection of the defendant’s premises and established a timetable for the delivery of affidavits of documents, Scott Schedules, and completion of examinations for discovery.

Costs of the motions were reserved for written submissions.

The court addressed the settlement of the form of order following earlier reasons that disposed of motions to change a prior consent order concerning custody, access, and support.

The parties disagreed on the wording and implementation of the resulting order, including issues relating to the applicant’s employment income, the calculation of child support under the Child Support Guidelines, and spousal support under the Spousal Support Advisory Guidelines.

Based on available evidence including employment records and tax documentation, the court fixed provisional support obligations pending final determination based on tax filings.

The court also clarified the treatment of retroactive spousal support and the set‑off of child support arrears against a mortgage debt between the parties.

Following a trial decision varying spousal support from $2,900 per month to $2,000 per month, the court addressed costs under the Family Law Rules.

Both parties relied on Rule 24 and argued they were the successful party, with particular emphasis on the reasonableness of their respective settlement offers.

The court found the respondent’s offer of $1,951 per month was significantly closer to the ultimate award than the applicant’s settlement position of approximately $2,900 to $3,000 per month.

The court rejected the applicant’s argument that she was the successful party and concluded the respondent had been substantially successful.

Costs of $5,000 all inclusive were awarded to the respondent, payable by monthly deductions from spousal support.

In a costs endorsement arising from a guardianship application under the Substitute Decisions Act, the court determined responsibility for costs incurred up to and including January 4, 2012.

Applying estate-litigation costs principles and Rule 57 factors, the court held that ordinary civil costs rules govern subject to limited exceptions and found the responding party's conduct unnecessarily prolonged the proceeding.

The court rejected attempts to reduce costs based on legal aid billing rates and disallowed claimed prospective future legal work.

It fixed all-inclusive costs for both the applicant and one responding party, directed immediate payment from the estate, and required reimbursement by the other responding party.

Cross-motions to change a consent family law order addressing custody, access, child support, and spousal support for multiple children of the marriage.

The court considered whether a material change in circumstances justified variation of the joint custody and detailed access regime established in the consent order.

Applying the material change threshold under the Divorce Act and the Children’s Law Reform Act, the court found no sufficient change to justify altering the custody or access provisions.

However, adjustments were required for support obligations due to the payor’s temporary disability income and uncertainty regarding his return to employment.

The court ordered recalculated child support based on disability income, interim spousal support pending resumption of employment, and set-off of support arrears against a mortgage debt owed between the parties.