Daniel John Kirby

This standalone costs decision followed reasons continuing an interim injunction and certificate of pending litigation until trial.

The successful moving parties sought partial indemnity costs and disbursements, while the responding parties argued costs should be in the cause or reduced.

Applying the ordinary rule that costs follow the result and the discretion applicable to interlocutory injunction proceedings, the court fixed costs itself rather than reserving all costs to trial.

The court found the moving parties were largely successful and awarded reduced partial indemnity costs plus limited disbursements, while reserving transcript-cost issues to the trial judge.

The accused was convicted of manslaughter following a jury trial on a charge of first-degree murder in connection with the death of Marvin Matthew on May 26, 2023.

The accused stabbed the deceased multiple times with a hunting knife after discovering him in a sexual encounter with the accused's girlfriend.

The jury rejected the accused's self-defence claim and found him guilty of the lesser included offence of manslaughter.

At sentencing, the court imposed an effective 11-year penitentiary sentence, accounting for pre-sentence custody credit of approximately 3 years and 8 months, resulting in a sentence of 7 years and 4 months to be served.

The court emphasized the gravity of the offence, the breach of bail conditions, and the absence of genuine remorse.

In a murder prosecution, the court determined the substantive admissibility of a 911 call made by a distressed eyewitness shortly after an alleged stabbing.

The Crown argued the recording fell within the spontaneous declaration exception to the hearsay rule, while the defence contended it was entirely inadmissible.

The court held that the call was made under the stress of a shocking and traumatic event, with no realistic opportunity for fabrication or concoction.

The recording was admitted for the truth of its contents.

The applicant appealed the City of Orillia's failure to make a decision on zoning by-law amendment and site plan approval applications for an 8-storey apartment building.

The parties reached a settlement prior to the hearing.

Based on uncontested expert planning evidence, the Tribunal found the proposed development is consistent with provincial policies, conforms to the official plan, and represents good planning.

The appeal was allowed in part, approving the zoning by-law amendment and granting interim approval of the site plan.

The applicant appealed the City of Orillia's failure to make a decision on a zoning by-law amendment and site plan approval application for an eight-storey apartment building.

At the first Case Management Conference, the Tribunal was informed that the statutory parties had reached a settlement.

A local resident withdrew her request for party status and was granted participant status.

The Tribunal scheduled a settlement hearing for August 6, 2024.

The applicant brought a motion to increase interim spousal support, seeking to impute over $1.8 million in corporate income to the respondent following a corporate reorganization.

The respondent brought a cross-motion to compel the applicant to approve the valuation reports of a jointly retained expert.

The court dismissed the applicant's motion, finding no material change in circumstances and preferring the joint expert's preliminary view that a promissory note from the reorganization was not available income.

The court also dismissed the respondent's motion to compel approval but provided directions for finalizing the expert reports.

The appellants sought to appeal an order denying a certificate of pending litigation and requested interim relief.

The Court of Appeal determined that the order denying the certificate was an interlocutory order, not a final one, meaning jurisdiction for the appeal lay with the Divisional Court, requiring leave.

Consequently, the Court of Appeal lacked jurisdiction to hear the appeal or grant interim relief pending an appeal it could not hear.

The court declined to exercise its discretion to sit as the Divisional Court, noting the appellants already had a leave motion pending there.

The appeal was quashed.

The moving party brought a motion for leave to appeal an unreported order.

The Divisional Court dismissed the motion for leave to appeal.

As neither party filed costs outlines, no costs were ordered.

The respondent husband brought a motion to sever the divorce from corollary relief.

The applicant wife opposed the motion and brought a cross-motion requiring the respondent to pay the upfront costs of an updated joint expert income report.

The court dismissed the motion to sever, finding the respondent failed to prove the applicant would not be prejudiced regarding health benefits and noting the respondent's failure to comply with financial disclosure orders.

The court granted the applicant's cross-motion, ordering the respondent to fund the expert report upfront, subject to equalization.

No costs were awarded due to the applicant's counsel failing to follow court directions regarding written submissions.

The moving parties brought a motion for leave to appeal the order of Desotti J. dated July 30, 2020.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, costs were awarded to the responding party in the amount of $2,200.

The applicant, Richard Bendall, moved to terminate spousal support payable to the respondent, Arlene Bendall, effective January 1, 2018, citing his retirement and injuries as a material change in circumstances.

Arlene opposed the termination, sought a retroactive increase in spousal support from 2009, and indefinite continuation of support, arguing Richard's retirement was voluntary and she remained in need due to post-separation injuries and illness.

The court found Richard's voluntary retirement constituted a material change in circumstances, was not motivated by a desire to avoid support, and that Arlene's inability to achieve self-sufficiency was primarily due to post-separation health issues rather than economic disadvantages from the marriage.

The court terminated spousal support effective January 1, 2018, and ordered Arlene to repay any amounts received since that date.

Arlene's oral motion to amend her pleading for retroactive support was denied due to delay and prejudice to Richard.

A criminal trial for second-degree murder resulted in a finding of not criminally responsible on account of mental disorder (NCRMD).

The accused, suffering from schizophrenia, committed a fatal stabbing while experiencing severe delusions and hallucinations, believing the victim was possessed by a demon.

Expert psychiatric testimony, accepted by the court, established that the accused was incapable of appreciating the nature and quality of the act or knowing it was morally wrong under s. 16 of the Criminal Code.

The matter was referred to the Ontario Review Board for disposition.

A bartender and bar manager was charged with assault causing bodily harm after forcibly removing an intoxicated patron from a licensed establishment.

The defendant pleaded self-defence under Criminal Code section 34, arguing that the patron had made escalating threats of violence, including a death threat, after being cut off from service and asked to leave.

The court found that the defendant held a reasonable belief that force was being threatened against him, that his response was proportionate in the circumstances, and that his actions were justified both under the self-defence provision and under the Liquor Licence Act, which permits the use of necessary force to remove non-compliant patrons.

The charge was dismissed.

In a family property trial arising from a short second marriage, the court addressed equalization and the applicant's claimed interest in a jointly held matrimonial home.

The central dispute concerned large insurance and sale proceeds received by the applicant shortly before marriage, most of which were unexplained by valuation day.

Applying the unconscionability analysis under s. 5(6) of the Family Law Act, the court imputed $96,000 in cash assets to the applicant, adjusted the valuation approach to the matrimonial home, and reduced the amount otherwise payable to her.

The respondent was ordered to pay $27,011 within 45 days to satisfy the applicant's interest, failing which the home would be sold, and the respondent received $5,000 in partial indemnity costs.

The appellants appealed a Director's Order requiring them to maintain and monitor a closed landfill site after the current owner became insolvent.

The parties jointly proposed a Draft Interim Order to stay the financial assurance requirements and amend the timing of other work items pending the outcome of the appeals.

The Tribunal found that the statutory bars to a stay under section 143(3) of the Environmental Protection Act did not apply and approved the Draft Interim Order on consent, adjourning the matter to allow for settlement negotiations.

The appellant appealed a trial judge's decision confirming the validity of a Trust Agreement.

She argued the agreement defeated her interests in the matrimonial home under the Family Law Act, lacked certainty of subject matter, was signed under duress, and that the trial judge was functus officio when issuing supplementary reasons.

The Court of Appeal dismissed the appeal, finding the property was not a matrimonial home when the agreement was executed, the trust subject matter was certain, the trial judge was not functus officio as no order had been entered, and there was no basis to interfere with the finding that duress was not established.

The appellant appealed a judgment of the Superior Court of Justice, arguing that the trial judge erred in refusing to grant an adjournment.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised his discretion by considering all relevant factors.

Furthermore, the appellant failed to provide any evidence of what his defence would have been had the adjournment been granted.

The appellant appealed an order striking his statement of claim.

The Court of Appeal held that the appellant could not enforce rights from a protocol after a collective agreement commenced, rendering his claim for a declaration for that period hypothetical.

However, the Court found that any individual contractual rights existing prior to the collective agreement were not erased.

The appeal was dismissed, but the appellant was granted leave to amend his statement of claim to confine it to the period before the collective agreement commenced.