Charles Baker

Following settlement of the family proceeding at a trial management conference on minutes of settlement, the court determined the reserved issue of costs.

Applying the costs framework under the Family Law Rules, the court held that the party seeking costs was entitled to them despite settlement language limiting each party to their own costs for negotiation and preparation of the agreement.

The court found both sides had acted unreasonably by failing to make offers to settle earlier, but also found the responding party could have accepted the minutes before the deadline expired.

Costs were fixed in a reduced amount proportionate to the issues argued.

The defendant mother brought a motion for summary judgment to dismiss the plaintiffs' (daughter and son-in-law) claim for an interest in a residential property and sought a writ of possession.

The plaintiffs claimed a resulting or constructive trust based on a $100,000 gift and upkeep expenses.

The court found no genuine issue for trial, noting the property was transferred to the defendant and her late husband with independent legal advice after the plaintiffs defaulted on mortgages.

The court dismissed the plaintiffs' claims for resulting trust and unjust enrichment, granted summary judgment dismissing the action, and ordered vacant possession to the defendant by June 30, 2015.

This was a costs decision following dismissal of a motion to remove defence counsel for alleged conflict of interest.

The court held the defendants were plainly the successful parties because the underlying motion had been dismissed.

The court found no reason to depart from the usual rule that costs follow the event and considered the defendants' prior offer to settle.

Costs were fixed at $6,500 inclusive of disbursements and HST, payable by the plaintiff within 30 days.

The appellant appealed the dismissal of its application for a declaration that an agreement of purchase and sale was void because it was entered into while the respondent corporation was dissolved.

The Court of Appeal dismissed the appeal, holding that the revival of a corporation under s. 241(5) of the Business Corporations Act is retroactive in effect.

The court reaffirmed its previous decision in Zangelo Investments Ltd. and explicitly rejected lower court jurisprudence that held otherwise, concluding that the revived corporation is deemed never to have been dissolved.

The appellant challenged the dismissal of her claims arising from a property transfer and alleged monies owing, arguing trial unfairness, inadequate reasons, and errors in the rejection of resulting trust and constructive trust remedies.

The Court of Appeal held that the trial judge was entitled to restrict cross-examination on a document withheld in breach of a trial management order and that no unfairness resulted.

It further held that the trial judge gave adequate reasons and made factual findings open on the record supporting the conclusions that consideration was provided for the property transfer, no unjust enrichment was established, and the money-advanced claim failed.

The appeal was dismissed with fixed appeal costs to the respondent.

In a real estate commission dispute, the plaintiff brokerage sought leave to amend its statement of claim to add an additional plaintiff and defendant and to plead rectification or rescission of an assignment of a listing agreement.

The defendant brought a Rule 21 motion to strike the claim on the basis that the assignment transferred all rights to commission to another brokerage and left the plaintiff without privity of contract.

The court held that amendments should generally be permitted unless clearly untenable or prejudicial and found the proposed amendments raised legally tenable issues regarding the enforceability of the assignment agreement, limitation periods, and potential duties owed by the proposed defendant brokerage.

The court also concluded that it was not plain and obvious that the limitation period had expired.

Leave to amend and add parties was granted and the motion to strike was dismissed.

Following a family law trial concerning custody, access, and section 7 expenses for the parties’ child, the court addressed the issue of costs.

The respondent mother had been largely successful at trial, obtaining sole custody and restrictions on the father’s access until he educated himself about the child’s serious medical condition, along with ongoing section 7 expense contributions.

Although success was somewhat divided on certain financial issues and the respondent had withdrawn an equalization claim, the court found the applicant father had acted unreasonably in the litigation, particularly regarding his refusal to acknowledge or engage with the child’s medical needs.

Considering Rules 18 and 24 of the Family Law Rules and the parties’ offers to settle, the court concluded the respondent should receive costs, but reduced the award due to mixed success on some issues.

Following a family law motion determining arrears of child support, section 7 expenses, and spousal support, the court addressed costs.

The respondent in the underlying motion obtained an order fixing arrears at $37,000, which exceeded the amount proposed in her offer to settle.

Applying the Family Law Rules and the offer to settle regime, the court awarded costs on a partial indemnity basis up to the date of the offer and full recovery thereafter.

After adjusting for unrelated issues and the straightforward nature of the arrears calculation, the court fixed costs at $10,000 plus $800 for the costs submissions, enforceable through a support deduction order.

Family law trial arising after the parties' separation and the subsequent diagnosis of one child with a rare and serious brain tumour.

The court found joint custody unworkable because the parties could not communicate or cooperate, and awarded sole custody to the respondent with structured consultation obligations and conditional expansion of the applicant's access after he met with specified health professionals.

The court also determined past and ongoing special expenses under s. 7 of the Child Support Guidelines, allowing substantial medical, travel, parking, hotel, equipment, medication, mobility, and dental claims, deducting benefit funds and other acknowledged offsets, and ordering reimbursement of $8,377.54 plus $350 monthly going forward.

A divorce was granted.

In a family law proceeding, the moving party brought a motion seeking a declaration of contempt after the responding party transferred substantial funds to an offshore account contrary to a prior non-dissipation order.

The court found the order was clear, the transfers were admitted, and the conduct was wilful or at least wilfully blind.

The responding party’s argument that the transfers merely repaid a debt and were done without understanding the order was rejected.

The court held that court orders must be obeyed and that paying a creditor does not justify breaching a preservation order during ongoing support and property claims.

A declaration of contempt was made, and the responding party was given 60 days to purge the contempt by paying the funds into court.

The appellants appealed a decision interpreting a right-of-way over their cottage property in favour of the respondent's adjacent property.

The appellants argued the right-of-way only permitted maintaining a water pipeline, or alternatively, that the rights should be exercised on the same side of the property.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that the instrument created two distinct rights: one for recreational lake access on the east side, and another to use a pump in the boathouse on the west side.

The court declined to rewrite the instrument to combine the rights-of-way.

The appellant appealed the dismissal of his motion to set aside a consent order that had dismissed his action.

The original action sought the return of funds paid pursuant to a promise of marriage.

The parties had settled, but the appellant alleged the respondent failed to fulfill her obligations and committed fraud in entering the settlement.

The Court of Appeal dismissed the appeal, noting that the respondent had commenced a new action against the appellant, and all relief sought regarding the alleged breach of the settlement could be asserted in the appellant's counterclaim in that new action.

The appellants appealed the motion judge's refusal to set aside an earlier order, the ruling that rule 11.02 did not apply, and the decision to strike their pleadings for non-compliance with a previous order.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decisions given the unexplained three-month delay in bringing the motion and the appellants' extensive delays in the action.

Two complainants, common-law spouses, filed human rights complaints against their employer.

The first complainant alleged sexual harassment, solicitation, and reprisal by the company owner.

The Tribunal dismissed her complaint, finding her evidence inconsistent and not credible.

The second complainant alleged his employment was terminated because of his marital relationship with the first complainant after she raised her allegations.

The Tribunal upheld his complaint, finding the employer precipitously terminated his contract based on his partner's behaviour rather than his own conduct.

The employer was ordered to pay the second complainant $3,000 in compensation for injury to dignity and $6,340 in restitution for lost wages.

The appellant appealed the judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that the trial judge applied the proper standard of proof (balance of probabilities) and was entitled to look for clear and convincing evidence when assessing the cogency of the evidence.

Costs were awarded to the respondents in the amount of $4,000.