David A. Broad

This endorsement addresses the issue of costs following a partially successful motion by the defendants to strike the plaintiffs' claims.

The defendants sought to dismiss the entire action or strike parts of the Fresh As Amended Statement of Claim.

The court previously struck the claims of three subsidiary plaintiffs entirely and struck a specific claim of the main plaintiff with leave to amend, while dismissing the defendants' primary request to dismiss the entire action.

The court found the outcome split and, applying principles of costs, awarded the defendants 50% of their partial indemnity costs, fixed at $14,300, to reflect their partial success in narrowing the issues and removing parties.

The applicants sought elevated costs as public interest litigants after successfully challenging the constitutional validity of s. 17 of the Crown Liability and Proceedings Act, 2019.

The court applied the two-branch test from Carter v Canada (Attorney General), finding that the issue was not "truly exceptional" with "widespread societal impact" comparable to Carter, nor did the applicants lack a personal pecuniary interest given the link to their underlying damages claim.

The court also noted the applicants had pursued the litigation with private funding.

Consequently, the request for elevated costs was denied, and costs were awarded on a partial indemnity basis as conceded by the respondents.

The plaintiff, Joseph Miller, brought an action against his former employer, Ontario Potato Distribution Inc., for constructive or wrongful dismissal, alleging a hostile work environment due to a threatening incident.

The defendant contended the plaintiff voluntarily resigned.

The court, applying principles of credibility and valid resignation, found the plaintiff failed to prove the alleged incident or the defendant's involvement, concluding the resignation was voluntary.

Consequently, the action for wrongful dismissal was dismissed.

The court also discussed, in obiter, the appropriate notice period and the contentious issue of CERB payment deductibility from damages.

The Corporation of the Township of North Dumfries brought a motion for an interlocutory injunction to restrain Geil Style Enterprises Inc. and Jason Geil from continuing a large-scale fill importation business without a permit, in contravention of municipal bylaws.

The plaintiffs argued for a 'strong prima facie case' test for the injunction, but the court applied the 'serious question to be tried' standard, noting that municipalities enforcing bylaws are not required to demonstrate irreparable harm in the same way as private plaintiffs.

The court found the Township met the test, that the non-compliance was flagrant, and that the balance of convenience favoured the Township.

The interlocutory injunction was granted, effective March 18, 2022.

The plaintiff brought an action under Simplified Procedure for damages sustained from a trip and fall on a city-owned sidewalk, alleging non-repair.

The parties agreed on damages, and the trial proceeded solely on liability.

The court found that the sidewalk's discontinuity, measured between 17.462 mm and 18.5 mm, did not exceed the 20 mm threshold set by the Minimum Maintenance Standards (O.Reg. 239/02), and thus was deemed to be in a state of repair.

Consequently, the plaintiff failed to prove non-repair, and the action was dismissed.

Despite the dismissal, the court also found the plaintiff 20% contributorily negligent for failing to keep a proper lookout on a familiar sidewalk.

The accused, Cadence Beauparlant, brought an application under s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence seized during and after his arrest, alleging violations of his rights under sections 8 (unreasonable search), 9 (arbitrary detention), and 10(b) (right to counsel).

The court found that the police lacked objectively reasonable grounds for the initial arrest for "failure to remain at the scene of a collision," thus breaching sections 8 and 9.

However, the court found no breach of section 10(b) regarding the right to counsel, as the accused did not clearly invoke his right to counsel and police attempts to contact his family were reasonable.

Applying the Grant test for s. 24(2) exclusion, the court weighed the seriousness of the Charter-infringing conduct (found to be an understandable error in judgment, not flagrant misconduct), the impact on the accused's Charter interests (real but not most serious), and society's interest in adjudication on the merits (high, given the serious drug and weapon charges).

Ultimately, the court dismissed the application, finding that admitting the evidence would not bring the administration of justice into disrepute.

The defendants, The Corporation of the City of Cambridge and The Cambridge & District Humane Society, successfully had the action dismissed against them and sought costs.

The court awarded partial indemnity costs of $25,000 against the plaintiff Inderpal Dhillon, rejecting the defendants' claim for substantial indemnity costs post-offer to settle due to insufficient compromise in their offer.

The court declined to award costs against the Family Law Act claimants (Sarita, Jasmeen, Anisha, Binita, and Krishma Dhillon) given their early abandonment of claims and lack of involvement.

The plaintiff Inderpal Dhillon's impecuniosity was considered but did not eliminate liability for costs.

The applicant mother sought summary judgment for child support, arguing the respondent father was intentionally under-employed or unemployed and failed to provide financial disclosure.

The court imputed minimum wage income to the father, finding he was intentionally unemployed and capable of working full-time.

Child support was ordered based on this imputed income, with section 7 expenses shared equally.

The mother's request for retroactive support was denied to prevent immediate default.

The defendants brought a motion to dismiss the action or strike the Fresh as Amended Statement of Claim under Rule 21.01(1)(a) and (b).

The motion sought to dismiss claims advanced by "Additional TyCorra Plaintiffs" due to lack of privity and to strike claims related to a TFI lease due to a drafting error.

The court dismissed the plaintiffs' preliminary objections regarding delay and fresh step.

The court granted the motion to strike the claims of TyCorra Group Inc., TyCorra Leasing Inc., and TyCorra Fleet Solutions Inc. without leave to amend, finding no reasonable cause of action due to lack of privity.

The claim of TyCorra Investments Inc. related to the TFI lease was struck with leave to amend to correct a drafting error.

The balance of the defendants' motion, which sought to strike the main contractual claims based on an interpretation of Right of First Refusal Agreements in the context of related contracts, was dismissed, as the court found a "germ or scintilla" of a cause of action.

This is a costs endorsement following a motion for summary judgment in a mortgage action.

The plaintiff, 1658161 Ontario Inc., sought costs after obtaining partial summary judgment, arguing the motion was necessary due to the defendant's, Dianne Marie Carroll's, failure to pay and refusal to acknowledge possession rights.

The defendant opposed, claiming she had consented to part of the judgment.

The court, applying principles from the Courts of Justice Act and Rules of Civil Procedure, determined that costs should be fixed at this stage rather than reserved for trial.

The plaintiff's costs claim was reduced by one-third for the summary judgment motion, and the defendant was ordered to pay $10,000 in costs to the plaintiff.

This endorsement addresses the question of costs following the plaintiff's unsuccessful motion for the release of funds held in trust.

The defendant sought costs on a partial indemnity basis.

The plaintiff did not oppose a costs award but argued for a lower amount, citing procedural delays and duplication of effort.

The court, applying principles of indemnity, proportionality, and reasonable expectation, fixed the defendant's costs at $11,500, inclusive of fees, HST, and disbursements.

The respondent brought a motion to change a child support order, seeking termination of support for two children, Andrea and Alysha, on the basis that they were no longer in full-time post-secondary education.

The court confirmed no further child support obligation for Andrea.

For Alysha, child support was terminated effective September 1, 2020, as she was not enrolled in post-secondary education.

The respondent's request for future financial disclosure from the applicant regarding Alysha's potential future enrolment was granted.

The applicant's cross-motion to fix child support arrears was dismissed without prejudice, as it was deemed an issue for final determination, not a temporary motion, and the basis of the calculation was not adequately disclosed to the court or opposing counsel.

This motion concerned interim child and spousal support, grossing-up of non-taxable income for a First Nations respondent, exclusive possession of the matrimonial home on a reserve, and other related financial and parenting issues.

The applicant sought grossed-up child support, spousal support, and continued primary residence of the child.

The respondent sought to defer the gross-up issue to trial and exclusive possession of the matrimonial home.

The court ordered the respondent's income to be grossed-up for child support purposes on an interim basis, ordered child and spousal support payments and arrears, dismissed the respondent's claim for exclusive possession, and confirmed the child's primary residence with the applicant.

The plaintiff, Mark Styres, brought an action against the defendant, Alison Martin, seeking a declaration of resulting trust and restitution for unjust enrichment regarding a property he transferred to her during their common-law relationship.

He also claimed damages for breach of fiduciary duty.

The court found that no fiduciary duty existed, as the defendant did not exercise powers of attorney or act in a fiduciary capacity.

The claim for resulting trust failed because the transfer was not gratuitous, as the defendant paid off the plaintiff's mortgage on the property.

The claim for unjust enrichment also failed as the plaintiff did not demonstrate a lack of donative intent for the transfer, and his subsequent actions were consistent with a gift.

The action was dismissed.

The court determined costs following a trial in a mobility case.

The respondent, Jennifer Davis, was the successful party and sought partial indemnity costs.

The applicant, Darcy Bourke, argued for no costs or minimal costs due to good faith litigation and significant future travel expenses for access.

The court affirmed the presumption that the successful party is entitled to costs, finding no general principle against awarding costs in mobility cases.

While acknowledging the applicant's travel costs, the court fixed costs at $22,760 for the respondent, representing a deduction of one year's child support from the claimed amount.

The applicant sought judicial interim release pending an extradition hearing to the Czech Republic for in-absentia convictions of break and enter and theft.

The Attorney General opposed release on primary, secondary, and tertiary grounds.

The court found the applicant to be ordinarily resident in Canada, placing the onus on the Attorney General.

The court determined that the proposed release plan, including 24/7 surety supervision and house arrest, adequately mitigated flight risk and public safety concerns, and maintained confidence in the administration of justice, despite the seriousness of the underlying offences and the strong case for committal.

The application for judicial interim release was granted.

This endorsement addresses the costs arising from an unsuccessful motion for leave to appeal brought by The Corporation of the Town of Niagara-on-the-Lake (NOTL).

The responding parties, Tweed Farms Inc. and 2470689 Ontario Inc., sought costs.

Tweed Farms claimed increased costs due to NOTL's abandoned positions, the expedited nature of the motion, and challenges related to virtual hearings during COVID-19.

NOTL argued the claimed amounts were excessive.

The court applied principles of proportionality and reasonable expectations, adjusting counsel rates and acknowledging the impact of NOTL's litigation conduct.

The court awarded Tweed Farms Inc. $25,875 and 2470689 Ontario Inc. $5,940, both on a partial indemnity basis.

The applicant landlord sought an urgent order to lift a province-wide eviction moratorium to evict the respondent tenant.

The tenant had defaulted on a Landlord and Tenant Board (LTB) eviction order for non-payment of rent.

The landlord, a front-line hospital worker, required the unit for personal occupation after selling their own home, citing nowhere else to go and a need to self-isolate from elderly parents.

The respondent tenant did not file responding material or attend the hearing.

The court granted the landlord's application, finding that the landlord had established urgent and compelling circumstances, and the tenant failed to discharge the evidential burden to show adverse impact on societal interests by the eviction.

This endorsement addresses the issue of costs following a trial where the applicant successfully obtained a termination of his spousal support obligation.

The applicant sought $3,500 in costs, a reduction from his initial bill, acknowledging the respondent's financial hardship.

The respondent opposed, arguing divided success, misleading financial information from the applicant, and her own financial hardship.

The court found the applicant to be the successful party, noting his reasonable offer to settle which the respondent unreasonably rejected.

Despite the respondent's hardship, the court awarded the applicant $3,500 in costs, finding the amount reasonable and consistent with principles of indemnity, proportionality, and hardship avoidance.

Benjamin Kowba was found guilty by a jury of two counts of sexual assault.

This endorsement constitutes the first segment of a bifurcated sentencing hearing, tasked with determining the factual basis of the jury's ambiguous verdict beyond a reasonable doubt.

The court found that the Crown proved beyond a reasonable doubt that the accused digitally penetrated complainant K.K. without consent, and kissed S.G.'s arm and touched her breast while she was sleeping.

However, the court found that the Crown did not prove beyond a reasonable doubt that the accused undid the button and zipper on S.G.'s shorts.

The decision outlines the principles for factual findings following a jury verdict, particularly when the verdict's factual implications are ambiguous.