Arthur M. Gans

Following a trial regarding the validity of codicils to a will, the court determined the allocation and quantum of costs.

The Objectors, who unsuccessfully challenged the codicils on grounds of testamentary capacity and undue influence, argued that costs should be paid out of the estate.

The court applied a blended costs approach, ordering the Objectors to pay the successful parties' costs incurred after a second mediation, at which point the Objectors should have reassessed their position.

The court also significantly reduced the costs claimed by some of the successful parties due to duplication of effort and excessive docketing.

This endorsement addresses the entitlement to costs following a medical malpractice action where the plaintiff's claim was dismissed.

The parties had agreed on a quantum of $300,000 for costs.

The court found that the defendant, as the successful party, was ordinarily entitled to costs.

The plaintiff's arguments for denying costs, including the defendant's failure to make a settlement offer, alleged divided success on causation and contributory negligence, and the plaintiff's impecuniosity and tragic circumstances, were rejected.

The court emphasized that the defendant's explicit undertaking not to demand costs alleviated concerns regarding hardship, allowing the ordinary rule that costs follow the event to apply.

The court reserved the right to revisit the disposition if the defendant were to seek enforcement of the costs order.

The plaintiffs sued the defendants for breach of a royalty agreement and promissory note following the winding-up of an investment fund.

The court found the defendants breached the royalty agreement by discontinuing payments after the fund's termination, as the agreement provided for a "proportionate continuation" of royalties if a significant amount of unitholders reinvested in successor funds.

However, the court rejected claims of bad faith and the necessity of an Independent Review Committee (IRC) referral for the winding-up decision.

Damages were awarded based on a modified calculation of the proportionate continuation of royalties, significantly less than sought by the plaintiffs.

This decision re-evaluates a costs award following a successful appeal by the defendant that significantly reduced the plaintiff's damages in a wrongful dismissal case.

The defendant argued that their earlier offer to settle, which included "statutory deductions" without specificity, should trigger Rule 49 cost consequences as the plaintiff's final recovery was less than the offer.

The court found the offer too ambiguous to meet Rule 49's strictures.

It also dismissed arguments regarding fresh evidence of a counsel agreement and the application of Simplified Procedure rules due to the action's commencement date.

Applying Rule 57.01, the court determined that despite the plaintiff's limited success on major claims, the overall results were mixed, leading to an order that each party bear their own costs.

The court addressed costs and interest following a prior judgment on share valuation.

Due to mixed results and the inherent unpredictability of share valuation, the court ordered each party to bear their own costs, including expert fees.

On the issue of interest, the court determined that the discretion to award interest to dissenting shareholders under the Ontario Business Corporations Act (OBCA) was not curtailed by the corporation's ability to pay.

Prejudgment interest was awarded at the prescribed rate of 0.8% from the date of the statutory offer (May 11, 2017) to the date of the judgment, with postjudgment interest thereafter, on the determined share values for the dissenting shareholders.

The applicant company sought to fix the fair market value of common shares held by dissenting shareholders who opposed amendments to create convertible preferred shares.

The court rejected the applicant's liquidation approach to valuation, instead valuing the company as an ongoing concern using the discounted cash flow (DCF) method.

The court determined that a three-month time delay in the commencement of projected cash flows was appropriate, balancing the company's straightened financial circumstances with its ongoing viability.

The "en bloc" fair market value was fixed at $12,300,000, resulting in a per share value of $0.304.

This costs endorsement followed a three-week jury trial where the plaintiff was awarded $2,570,181 for general, aggravated, economic, special, and punitive damages arising from historical sexual assault.

The court addressed the plaintiff's entitlement to substantial indemnity costs under the Victims' Bill of Rights and the calculation of prejudgment interest.

The court found the plaintiff was entitled to substantial indemnity costs throughout the proceedings, rejecting the defendants' argument for partial indemnity prior to the offer date.

While the court reduced the quantum of legal fees claimed due to perceived duplication and 'heavy-handed' process, it upheld the principle of substantial indemnity.

The court also determined that the default prejudgment interest rate of 5% applied to non-pecuniary damages, rejecting the defendants' argument for a lower rate based on the Insurance Act, as the case did not involve a motor vehicle accident.

A 16-year-old appellant was convicted of first-degree murder in the death of his 14-year-old cousin.

The appellant appealed his conviction, arguing that his statements to police were admitted in breach of section 146(2) of the Youth Criminal Justice Act (YCJA) and section 10(b) of the Canadian Charter of Rights and Freedoms.

The trial judge conducted a voir dire and admitted all statements.

The Court of Appeal found that the trial judge made two fatal legal errors: (1) he improperly shifted the burden of proof regarding detention from the Crown to the appellant, and (2) he erred in concluding that section 146(2) protections did not apply because the appellant's detention related to a different offence (obstruction of police) than the ultimate charge (first-degree murder).

The Court of Appeal held that the appellant was psychologically detained and entitled to the protections of section 146(2), which were not provided.

The statements were therefore improperly admitted, and the conviction was set aside with a new trial ordered.

The appellant was convicted of first-degree murder in the shooting death of Glen Davis in a Toronto parking garage.

The appellant's nephew orchestrated the murder and recruited the appellant and others to carry it out.

The appellant's defence was that he had a last-minute change of heart and did not shoot Davis, but rather his co-accused did.

The appeal raised three grounds: that the trial judge unjustifiably curtailed cross-examination of key Crown witnesses; that the trial judge erred in giving a Browne v. Dunn instruction; and that the trial judge erred in his charge regarding post-offence conduct.

The appellate court dismissed all grounds of appeal, finding that despite some questionable interventions, the trial was fair and the conviction was supported by compelling evidence.

The appellant appealed his sentence of 14.5 years incarceration (plus 6 months time served) for armed bank robbery, carrying a weapon, wearing a disguise with intent, and money laundering.

The trial judge imposed a parole ineligibility order under section 743.6 of the Criminal Code, requiring the appellant to serve at least half the sentence before parole eligibility.

The Court of Appeal found the sentence demonstrably unfit as it departed from the principle of proportionality and resulted from errors in principle, including overemphasis on deterrence and public safety while dismissing rehabilitation prospects despite the appellant's substance abuse and mental health issues.

The court reduced the sentence to 10 years inclusive of time served.

The appellant appealed his convictions for six counts of sexual assault and two counts of assault of a minor victim, as well as his six-year sentence.

The victim alleged that the appellant sexually and physically assaulted her over a two-year period when she was 14-15 years old and he was 44.

The trial judge convicted the appellant on six counts of sexual assault and two counts of assault after finding the victim's evidence credible and rejecting the appellant's denials.

The appellant raised three grounds of appeal on conviction: misapplication of the burden of proof, misapprehension of the significance of the victim's diary, and erroneous assessment of the victim's testimony according to standards applicable to young persons.

On sentencing, the appellant argued the trial judge relied on inadmissible evidence and failed to apply the principle of parity.

The appellate court dismissed both the conviction and sentence appeals.

The appellant appealed his conviction for sexual assault on three grounds.

The first ground challenged the trial judge's finding that the appellant's Charter s. 10(b) rights were properly advised, arguing the police officer failed to inform him of his right to consult counsel in private.

The Court of Appeal rejected this ground, finding the trial judge properly ensured the appellant understood his rights and made an informed decision to speak without counsel.

The second ground challenged a misstatement regarding drug testing of the complainant, but the Court found this immaterial as the trial judge's finding of incapacity to consent was based on overwhelming evidence of intoxication.

The third ground challenged the trial judge's credibility finding regarding the appellant's fabricated evidence about drinking, but the Court found this finding was open to the trial judge and there were other unimpeachable reasons to reject the appellant's evidence.

The appeal was dismissed.

The Crown appealed directed verdicts of acquittal on three firearms charges.

The trial judge had granted the respondent's application for a directed verdict, concluding that the evidence was insufficient for a jury to consider whether the respondent possessed an operational firearm.

The appellate court found that the trial judge made three errors of law: applying the wrong test for directed verdicts, improperly weighing competing inferences in favour of the respondent, and assessing the respondent's credibility when she was not entitled to do so.

The court allowed the appeal and ordered a new trial.

The appellant was convicted of five carjackings, with direct evidence linking him to one incident and similar fact evidence linking him to four others.

The appellant appealed his conviction on two grounds relating to the trial judge's jury charge on similar fact evidence, arguing the judge erred in instructing the jury on how to assess such evidence and group membership.

The Court of Appeal dismissed the conviction appeal, finding the charge faithfully followed the two-step process established in R. v. Perrier and was sufficient to ensure the jury did not improperly use group activity to identify the appellant without specific linkage to the individual acts.

The appellant appealed his conviction entered by the Superior Court of Justice on July 4, 2016.

The principal issue was whether the trial judge erred in finding that a reasonable person in the officer's position would have believed reasonable and probable grounds existed to arrest the appellant.

The Court of Appeal upheld the trial judge's analysis, finding that she stated the correct test, correctly examined the totality of the circumstances, and that those circumstances supported the objective reasonableness of the search.

The appeal was dismissed.

This class action concerned historical abuse at the W. Ross MacDonald School for the Blind.

The court approved an $8,000,000 settlement fund, finding it fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the advanced age of many class members.

The settlement provided for a paper-based, non-adversarial claims process with compensation up to $45,000 per claimant, free from tax claw-backs.

The court also approved a $15,000 honorarium for the representative plaintiff and fixed class counsel's legal fees at $2,412,534 plus HST and disbursements, emphasizing the risks undertaken and results achieved over mere docketed time.

The plaintiff, Wanda Labanowicz, sought costs and interest following a successful three-week trial against the Corporation of the Town of Fort Erie, where she was awarded $894,839.72 in damages for a bicycle accident.

The court considered the plaintiff's pre-trial offers, which she surpassed, the defendant's "scorched earth" defence, the case's complexity, and the parties' reasonable expectations.

The court found the defendant's offers to be 'nuisance' value and criticized its unreasonable and unsupported defences.

While largely granting costs to the plaintiff on a partial indemnity basis to the date of her May 2016 offer and substantial indemnity thereafter, the court reduced the plaintiff's proposed Bill of Costs by $35,000 for pre-May Offer costs and made further reductions for post-May Offer costs and costs submissions due to duplication from multiple law firms and excessive clerk/student time.

Disbursements and OHIP claims were largely upheld, and full interest was awarded to the plaintiff.

RBC Dominion Securities Inc. and Royal Bank of Canada Europe Limited (collectively "RBC") sued Crew Gold Corporation ("Crew") for a success fee under a financial advisory agreement.

RBC argued that the fee was payable for third-party share purchases that resulted in a change of control of Crew, even without RBC's direct involvement.

Crew contended that the agreement required its involvement in any transaction triggering the fee and that the fee was contingent on RBC's provision of financial advisory services.

The court interpreted the contract as requiring a causal link between RBC's activities and the completed transaction.

Finding no ambiguity in the contract language, and considering the factual matrix, the court concluded that the third-party open market transactions were not within the contemplation of the parties when the agreement was executed.

RBC's action was dismissed.

Fabiene Evans, a chartered accountant and institutional equity salesperson, was constructively dismissed by Paradigm Capital Inc. after being offered a significantly altered role with reduced responsibilities and uncertain compensation following her breast cancer diagnosis and return to work.

The court found that Evans was not obligated to accept the revised role as mitigation due to its ill-defined nature, uncertain compensation, and the potential for humiliation and loss of dignity.

The court set the reasonable notice period at 11 months and awarded damages for lost salary, performance bonuses, and shareholder bonuses during this period.

The plaintiff's claim for bad faith in the historical calculation of bonuses was rejected, as the employer's compensation process was found to be fair and reasonable.

Following the dismissal of the plaintiff's class action, the court addressed costs.

Her Majesty the Queen in Right of Ontario (HMQ) sought costs on a partial indemnity basis totaling $779,405.70.

The plaintiff argued for no costs or a significant reduction, citing novel points of law and public interest under s. 31 of the Class Proceedings Act, 1992.

The court found that the complex legal issues initially raised were not ultimately pursued, rendering s. 31 inapplicable.

However, the court disallowed HMQ's costs for an unsuccessful summary judgment motion, granting the plaintiff a credit of $216,550.

Ultimately, HMQ was awarded costs fixed at $470,810 for fees and $92,045.70 for disbursements, for a total of $562,855.70.