Alfred J. O'Marra

Following dismissal of a personal injury action arising from injuries sustained while attempting to exit a stuck elevator, the successful defendant sought substantial costs after trial.

The court considered Rule 57 of the Rules of Civil Procedure, settlement offers under Rule 49, the proportionality principle, and the objectives of the Simplified Procedure.

Although the defendant had made settlement offers more favourable than the trial result, the court held that the claimed costs were disproportionate to the modest amount realistically in dispute and the simplified nature of the proceeding.

Taking into account the plaintiff’s limited financial means, the moderate complexity of the case, and the principle that costs must be fair and reasonable for the losing party to pay, the court significantly reduced the requested costs.

Costs were fixed at a reduced amount plus disbursements.

Following dismissal of a motion by the Crown to strike a negligence and negligent misrepresentation claim arising from a government procurement process for school bus services, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs while the Crown argued for a lower partial indemnity award.

Applying Rule 57 of the Rules of Civil Procedure and the fairness principles from Boucher, the court held that the motion, although unsuccessful, was not wholly devoid of merit and therefore did not justify substantial indemnity costs.

The court also rejected the Crown’s submission that HST should not be included in a costs award against it.

Partial indemnity costs of $39,897 inclusive of disbursements and HST were awarded to the plaintiffs.

Following dismissal of a counterclaim alleging wrongful dismissal and breach of contract and seeking $11.8 million in damages, the successful defendant by counterclaim sought substantial indemnity costs exceeding $299,000.

The court considered Rule 57 of the Rules of Civil Procedure and the principles governing cost awards under the Courts of Justice Act, including the effect of an unaccepted Rule 49 settlement offer and allegations of uncooperative litigation conduct.

Although the court accepted that some conduct of opposing counsel created additional expense, it declined to award substantial indemnity costs.

Applying the objective of fairness and reasonableness to the unsuccessful party, the court fixed costs on a partial indemnity basis.

The plaintiff subcontractor brought a motion for summary judgment against the individual defendants for breach of trust under the Construction Lien Act.

The corporate contractor had failed to pay the plaintiff for completed flooring work despite receiving funds from the owners and swearing a statutory declaration that all sub-trades had been paid.

The court found a breach of trust occurred and held two of the individual defendants personally liable under s. 13(1) of the Act, finding they had effective control of the corporation and acquiesced in the breach.

The action against a third individual defendant, an employee, was dismissed.

The plaintiff brought an action against a developer for breach of a partnership agreement and included several co-owners of the development project as defendants, alleging they were trustees de son tort who knowingly received trust funds.

The co-owner defendants moved for summary judgment to dismiss the claims against them.

The court found no privity of contract between the plaintiff and the moving defendants, and no evidence that they knowingly assisted in a breach of trust or received more than their proportionate share of profits.

The motion for summary judgment was granted and the action against the moving defendants was dismissed.

A software developer and his corporation brought a counterclaim against a securities trading firm alleging wrongful dismissal and breach of contract following termination of his role as chief technology officer.

The court first determined that despite a services agreement structured through a corporation, the relationship functioned as employment, applying the multi‑factor test from Sagaz Industries.

The court held that a prior service agreement had been fully released by mutual release and could not ground claims.

It also rejected the claimant’s assertion that he was entitled to commissions based on algorithmic trading profits, finding the agreement applied to traders and not to a software developer who neither created strategies nor executed trades.

The court further found just cause for termination where the employee inserted malicious code into the firm’s trading platform, removed source code access, attempted to market competing software, and breached confidentiality obligations.

The counterclaim for wrongful dismissal and breach of contract was dismissed.

The plaintiff sought damages for injuries sustained while attempting to exit a malfunctioning elevator in her condominium building after severe rainfall caused power failures and flooding of elevator pits.

The claim against the condominium corporation had been settled, leaving the elevator maintenance contractor as the remaining defendant.

The plaintiff alleged negligence and occupier’s liability, relying in part on the doctrine of res ipsa loquitur.

The court found that the elevator malfunctions were caused by extraordinary flooding and that the maintenance contractor had responded reasonably and in compliance with applicable standards.

The plaintiff failed to establish any breach of the standard of care or causal link between the contractor’s conduct and her injuries.

The offender was sentenced after conviction for importing cocaine into Canada and possession of cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act.

Police surveillance and intercepted communications established that the offender coordinated with another individual to import approximately 600 grams of cocaine from Panama for distribution.

The court considered the sentencing ranges established in appellate authorities for cocaine importation and trafficking, emphasizing denunciation and general deterrence.

Although the offender expressed remorse and had some rehabilitative prospects, aggravating factors included a prior drug conviction, commission of the offence while on probation, and participation for financial gain.

The court imposed concurrent penitentiary sentences of five years for each offence, reduced to 4 years and 6 months after credit for pre‑trial custody and restrictive bail conditions, together with ancillary orders.

The accused, charged with first-degree murder in a stabbing death, applied for judicial interim release.

The Crown conceded the primary ground but argued for detention on the secondary and tertiary grounds, citing the accused's attempts to interfere with the investigation and the gravity of the offence.

The court found that the proposed plan of release, involving strict house arrest and substantial sureties, addressed the secondary ground concerns.

Regarding the tertiary ground, the court noted weaknesses in the Crown's case for first-degree murder and concluded that releasing the accused on strict terms would not undermine public confidence in the administration of justice.

Bail was granted.

In the context of a mutual legal assistance proceeding under the Mutual Legal Assistance in Criminal Matters Act, individuals sought Charter remedies against both the provincial and federal Crowns following withdrawn criminal charges and a discontinued extradition process.

The Attorney General of Canada brought a motion to be removed as a party and to strike portions of the requested relief.

The court held that the federal Crown was not a party to the sending order application because the Attorney General of Ontario was the “competent authority” responsible for the process under the Act.

The court further found that the requested Charter remedies relating to extradition proceedings could not be pursued in the absence of an active proceeding under the Extradition Act and would improperly interfere with executive and prosecutorial functions.

The motion was granted and the impugned relief was struck.

The accused was charged with importation of cocaine into Canada and possession of cocaine for the purpose of trafficking.

The Crown relied primarily on intercepted telephone communications, surveillance evidence, and seizure of drug packaging and cocaine to establish participation in a common criminal design to import cocaine from Panama.

The defence argued that the Crown failed to prove the identity of the accused’s voice in the intercepted calls and failed to prove knowledge of the package contents.

The court accepted voice identification evidence, found the co‑conspirators’ exception to the hearsay rule applied, and concluded that the intercepted calls, surveillance observations, and surrounding circumstantial evidence established the accused’s knowledge and participation.

The court found beyond a reasonable doubt that the accused knowingly participated in the importation and trafficking scheme.

Sentencing following convictions for sexually assaulting and interfering with a child over several years, and for possession of child pornography.

The court treated denunciation and deterrence as the primary sentencing objectives under the Criminal Code, emphasized the offender's abuse of trust, repeated vaginal penetration, grooming conduct, threats, and the profound psychological harm to the child and family, and rejected the offender's otherwise pro-social background as an exceptional circumstance.

Applying the appellate framework for adult sexual predators of children and the totality principle, the court imposed 5 years for the sexual offences plus 1 consecutive year for possession of child pornography, for a global sentence of 6 years' imprisonment.

The accused was convicted after a jury trial of abducting a child contrary to a custody order under s. 282(1)(a) of the Criminal Code.

The offender sent his four‑year‑old child to Iran and failed to comply with a Canadian court order granting interim custody to the mother, resulting in the child remaining outside Canada for approximately twelve years.

The court emphasized denunciation and general deterrence given the deliberate disregard of a custody order and the severe impact on the custodial parent who was deprived of contact with the child throughout his formative years.

Aggravating factors included the planned nature of the abduction, concealment of the child in a non‑Hague Convention country, and the offender’s criminal record.

The court imposed a custodial sentence followed by probation.

Sentencing following convictions for three counts of trafficking crack cocaine and one count of possession of proceeds of crime after undercover police purchases.

The offender, a first-time offender with refugee status and no prior record, sold small quantities of crack cocaine on three occasions and was arrested with marked buy money.

The court considered the sentencing principles under s.718 of the Criminal Code, emphasizing denunciation and deterrence while also weighing the offender’s rehabilitative efforts and lack of prior criminal history.

Applying the framework for conditional sentences under s.742.1 and the guidance in R. v. Proulx, the court concluded that the risk of re‑offending was minimal and that a community-based sanction could achieve the objectives of sentencing.

A conditional sentence of imprisonment followed by probation was imposed.

The applicant sought a stay of proceedings on drug trafficking charges, alleging that police used excessive force during his arrest while executing a search warrant for firearms.

The applicant claimed repeated kicks to the head and a blow with a shotgun butt, asserting violations of ss. 7 and 12 of the Charter.

The court rejected the applicant’s account as not credible and accepted the officers’ evidence that the applicant resisted arrest in a confined space during a high-risk firearms search.

The court found that the force used to gain control of the applicant was reasonable and that the injury sustained was an unintended consequence of lawful force.

No Charter breach was established and the requested stay was denied.

In a criminal trial for sexual assault, sexual interference, and possession of child pornography, the court assessed child-witness credibility, prior consistent disclosures, forensic findings, and computer-forensic evidence.

The defence argued fabrication, suggestive questioning, and inconsistencies concerning timing, emotional presentation, and device access.

The court found the child witness credible and reliable, accepted corroborative evidence including semen detection and pornography recovered from household computers, and rejected the theory that allegations were engineered by family members.

The court also rejected the accused’s explanations about file downloads and deletions and drew adverse conclusions from attempts to remove files after disclosure.

The accused was convicted on all counts beyond a reasonable doubt.

The offenders were convicted of multiple counts of mortgage fraud involving 11 properties and 27 mortgages over a 7-year period.

They used stolen identities, forged documents, and false powers of attorney to obtain mortgage financing, resulting in over $1 million in losses to financial institutions and the CMHC.

The court rejected a conditional sentence, emphasizing denunciation and general deterrence for large-scale frauds.

Each offender was sentenced to 4 years in a penitentiary.

The court also ordered fines in lieu of forfeiture totaling $495,535.04 and a joint and several restitution order in the same amount payable to the CMHC.

The accused were charged with conspiracy to murder and commit aggravated assault, counselling to murder and commit aggravated assault, and assault with a weapon.

The charges arose from an overheard conversation where Abou Al-Rashta instructed Pirouzi to attack two individuals.

The court found insufficient evidence of a meeting of minds to support the conspiracy charges against both accused.

However, the court found Abou Al-Rashta guilty of counselling the offences, as he actively induced and encouraged Pirouzi.

Pirouzi was also found guilty of assault with a weapon for a separate incident involving a remote control.