Charles Wagman

The appellant appealed a summary conviction for impaired care or control of a motor vehicle under s. 253(1)(a) of the Criminal Code.

The trial judge convicted after finding the accused impaired while seated in the driver’s seat of a vehicle with the engine running, relying on the statutory presumption of care or control.

On appeal, the court held the trial judge failed to analyze whether the presumption of care or control under s. 258(1)(a) had been rebutted by the accused’s evidence that he did not intend to drive.

The trial judge also failed to conduct a proper risk-of-danger analysis required where the Crown seeks to establish actual care or control.

Because the reasons did not reveal the necessary analytical steps, appellate review was impossible and the conviction could not stand.

The appellants appealed a trial judgment finding them liable for arrears owing under three vehicle leases that had been assigned to the respondent.

The appellants argued that because they did not receive written notice of the lease assignments, the respondent was required to join the assignor as a party to the action.

The Court of Appeal dismissed the appeal, holding that while the assignor perhaps should have been joined, the appellants had actual notice of the assignment and suffered no prejudice.

The Court also rejected arguments that the trial judge violated the collateral fact rule during cross-examination and erred in her credibility assessments.

This was a costs decision following a motion by a defendant to set aside a default judgment.

Although the plaintiffs were technically unsuccessful on the motion, the court had granted the motion on terms requiring payments to the plaintiffs, including costs thrown away and security for costs.

The plaintiffs sought substantial indemnity costs or, alternatively, partial indemnity costs for the motion.

The court held that a punitive costs award was not warranted and fixed costs at $8,500 all inclusive on a partial indemnity basis.

The plaintiffs moved to restore an action to the trial list after it had been struck for failure to provide a certification form and had not been restored within 180 days.

The court held the evidentiary record was wholly inadequate to explain the delay, address whether the delay was intentional or excusable, or rebut the presumption of prejudice arising from the passage of time.

The court emphasized the absence of evidence about witness availability, document preservation, readiness to proceed, and the unexplained need for a further damages expert report.

Leave to restore the action to the trial list was denied.

The defendant home inspector brought a motion to set aside a default judgment granted to the plaintiffs four years prior.

The plaintiffs had sued the defendant for professional negligence and breach of contract regarding a home inspection that failed to disclose severe water damage and rot.

The defendant failed to defend the action, citing severe health issues including a heart attack and rheumatoid arthritis.

Despite the significant delay and procedural non-compliance, the court found an arguable defence on the merits and no genuine prejudice to the plaintiffs' ability to prove their case.

The court exercised its discretion to set aside the default judgment, but imposed strict terms including payment of costs thrown away and payment into court as security.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy and ordering payment of rent arrears.

The tenants argued the Board's reasons were deficient and misapprehended evidence regarding their verbal agreement for rent and superintendent services.

The Divisional Court dismissed the appeal, finding that adequacy of reasons is not a stand-alone basis for quashing a decision and that the tenants' arguments amounted to an attempt to revisit factual findings, which does not constitute an error of law.

The appellant appealed the motion judge's refusal to grant an adjournment.

The Court of Appeal dismissed the appeal, finding no error in the refusal given the history of the proceedings and the absence of any merit in the appellant's claim.

Costs were awarded to each respondent.

A commercial tenant sought declarations that a landlord’s distraint against its goods for alleged rent arrears was unlawful and that the landlord had forfeited the lease.

The landlord had changed the locks to the premises while simultaneously posting a distress notice demanding payment of a substantially inflated sum that included amounts not payable under the lease.

The court held that a landlord must choose between the mutually exclusive remedies of forfeiture and distress and that the landlord’s conduct effectively excluded the tenant from the premises.

By locking the tenant out and conditioning re-entry on payment of improper charges, the landlord forfeited the lease and the subsequent distress was unlawful.

Declarations were granted and a trial of damages was directed.

The defendant brought a motion to strike portions of a statement of claim as an abuse of process after an oppression application under the Ontario Business Corporations Act was converted into an action.

The moving party argued that the plaintiff improperly added allegations and prayers for relief against her that were not contained in the original notice of application and did so without leave of the court.

The court held that the conversion order authorized delivery of a statement of claim and imposed no requirement that it mirror the originating application.

The court found the moving party had long been aware of the nature of the claims against her and that no new cause of action was asserted.

The motion was dismissed and the plaintiff was awarded costs.

A vehicle leasing company sued lessees for arrears arising from three motor vehicle leases after the leases were assigned from the original lessor.

The defendants denied liability, asserting the vehicles had been returned and that no arrears were outstanding.

The court found the assignment of the leases valid and concluded the defendants had notice of the assignment.

After assessing credibility and business records, the court rejected the defendants’ claim that two of the vehicles had been returned and accepted the plaintiff’s evidence regarding outstanding arrears.

Judgment was granted requiring payment of arrears under the respective leases by the responsible defendants.

The plaintiff brought a motion for partial summary judgment alleging civil fraud arising from altered trust ledger statements relating to land transfer tax amounts in three condominium transactions.

The moving party alleged the defendant misrepresented tax amounts, resulting in a $40,000 discrepancy and sought damages, tracing, and disgorgement.

The court found that the defendant had made a false representation and knew it was false, but determined that the plaintiff failed to establish the required element of loss because the $40,000 had been repaid pursuant to a certified cheque delivered in connection with criminal proceedings.

As a result, the claim for repayment of the $40,000 could not succeed on summary judgment.

Remaining claims, including disgorgement and related relief, were left to be determined at trial.

The appellant appealed an order staying its Ontario action for negligent tax advice arising from the settlement of a Quebec action.

The Court of Appeal held that the motion judge applied the correct forum non conveniens principles and properly concluded that Quebec was clearly the more appropriate forum.

The court rejected the submission that reliance on the retainer agreement was erroneous, because the claim was pleaded in both tort and contract.

The appeal was dismissed with agreed costs to the respondents.

The court addressed costs following an earlier order converting an application into an action with terms.

The judge considered the discretionary nature of costs under s. 131(1) of the Courts of Justice Act and the factors listed in Rule 57.01(1) of the Rules of Civil Procedure.

Although successful parties are generally entitled to costs, the court found reason to depart from the general rule given the litigation history and prior failures by certain respondents to comply with court orders that delayed the matter.

Costs were ordered to be in the cause between the corporate respondents, Robert Parr, and the applicant, fixed at $5,900 all-inclusive.

A respondent who was not a moving party was held not entitled to costs.

Following an earlier decision staying the plaintiff’s Ontario action on the basis that Quebec was the forum with the clearest connection to the dispute, the court determined costs of the successful defendants’ motion.

The defendants sought partial indemnity costs of $35,536.54, citing the complexity of the motion, extensive affidavit evidence, cross-examinations requiring interpretation, and the seriousness of allegations made in a $5 million claim.

The plaintiff argued the matter was straightforward and that the requested rates exceeded reasonable expectations.

Applying the principles governing costs under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount rather than the defendants’ full claimed amount.

Partial indemnity costs of $24,000 all-inclusive were awarded to the defendants.

Corporate respondents brought a motion under Rules 14 and 38.10 of the Rules of Civil Procedure to convert an application into an action before the application hearing.

The underlying dispute involved allegations of diversion of corporate assets, claims for $5 million in damages for conversion, punitive damages, and oppression remedies under the Business Corporations Act.

The court held that conversion was appropriate where the matter involved complex factual disputes, credibility issues, and anticipated expert evidence.

Given the magnitude of the damages claims and the likelihood of conflicting expert testimony, a full evidentiary record and viva voce evidence were required.

The court converted the application into an action and imposed procedural directions to expedite the litigation.

Following a construction lien trial where the plaintiff subcontractor obtained judgment against the general contractor, the court determined the costs of the action.

The issues included whether success was divided, the appropriate scale of costs following a rejected offer to settle under Rule 49.10 of the Rules of Civil Procedure, and whether the defendant could recover costs associated with the owner’s legal expenses and the removal of a lien from title.

The court held that the plaintiff was the more successful party and had beaten its pre‑trial offer, entitling it to partial indemnity costs up to the offer date and substantial indemnity thereafter.

However, because the plaintiff unnecessarily kept the owner in the action after the lien was vacated, the court allowed a set‑off representing the reasonable portion of the owner’s legal costs.

Final costs were fixed in favour of the plaintiff after deductions.

Parallel motions were brought seeking relief for repeated non-compliance with court orders and undertakings in related proceedings.

The moving party requested that the defendants’ statement of defence and responding affidavit be struck due to ongoing delays, failure to produce documents, non-payment of ordered costs, and breaches of multiple court orders.

The court acknowledged a pattern of delay and grudging compliance but held that striking pleadings is an extreme remedy reserved for cases where conduct is contumelious or amounts to abandonment of the court process.

While serious defaults were found, the defendants had taken some partial steps toward compliance.

The court therefore declined to strike the defence and instead issued a final “last chance” order requiring completion of outstanding undertakings, payment of costs, and disclosure of missing corporate records.

The defendants brought a motion to dismiss or stay an Ontario action alleging negligent legal advice and breach of contract arising from legal services provided in connection with Quebec litigation.

The plaintiff argued Ontario had jurisdiction because the defendant law firm carried on business in Ontario and an Ontario lawyer participated in providing the impugned tax advice.

The court held that presumptive connecting factors established jurisdiction simpliciter under the framework from Club Resorts Ltd. v. Van Breda.

However, applying the doctrine of forum non conveniens, the court concluded Quebec was clearly the more appropriate forum given the Quebec retainer agreement, Quebec governing law, the location of most witnesses and events, and parallel proceedings in Quebec.

The Ontario action was therefore stayed.

The plaintiff subcontractor brought a construction lien action against the defendant general contractor for unpaid contract amounts and extras on a school renovation project.

The defendant argued that no amounts were due under the contract's 'pay when paid' provisions and claimed back-charges for uncompleted work and a PST credit.

The court held that the Construction Lien Act supersedes the contract's payment terms.

The court allowed most of the plaintiff's claims for extras, dismissed the defendant's claim for a PST credit, but allowed the defendant's back-charge for uncompleted brickwork.

The plaintiff was awarded a net judgment of $27,450.95.

The plaintiffs brought a motion seeking a further and better affidavit of documents and an order compelling the defendant solicitor to attend for examinations for discovery.

The dispute arose from an alleged arrangement under which the defendant would refer personal injury clients for medical assessments and pay the plaintiffs’ invoices upon settlement of those claims.

The court found that the defendants’ affidavit of documents was deficient, that privilege had been asserted in a blanket and improper manner, and that relevant documents supporting numerous pleaded defences had not been disclosed.

The court ordered the defendants to serve a supplementary affidavit of documents with proper Schedule “A” production and particularized Schedule “B” privilege claims, and required the defendant to attend for discovery by a fixed deadline.

Costs were awarded to the moving party on a substantial indemnity basis due to the defendants’ delay, conduct during the motion, and failure to cooperate in the discovery process.