Douglas Rutherford

Following a trial where the applicant successfully defended a will challenge, the parties made written submissions on costs.

The applicant sought substantial indemnity costs against the unsuccessful objectors.

The objectors argued their costs should be paid from the estate because they had reasonable grounds to challenge the will.

The court applied the modern approach to estate litigation costs, finding that the strength of the objectors' case regarding the testator's capacity engaged public policy considerations.

The court ordered the objectors' costs of $50,227.17 and the applicant's full costs to be paid out of the estate.

The applicant, Jon Jessie William Driscoll, sought a Certificate of Appointment of Estate Trustee with a Will, naming him as the sole beneficiary of his mother, Shirley Driscoll's, estate.

Three of Shirley's daughters (the objectors/respondents) challenged the will, alleging lack of testamentary capacity and undue influence.

The court conducted a summary trial, reviewing medical evidence and family testimony.

The court found that Shirley Driscoll possessed testamentary capacity when she executed her will and was not subjected to undue influence.

The decision emphasized that a testator has the right to treat beneficiaries unjustly, and the will reflected Shirley's long-held mindset of primogeniture.

The objections were dismissed, and Jon Driscoll was confirmed as Estate Trustee.

Michael Beaton, a chiropractor, was tried without a jury on 10 counts of indecent assault, assault with intent to commit indecent assault, and assault (later amended to sexual assault) involving five male complainants.

The court considered expert testimony on chiropractic practice standards and the admissibility of similar fact evidence.

The judge dismissed the Crown's motion to consider "across the counts similar fact evidence," opting for individual consideration of each count.

Beaton was found not guilty on counts 1 and 2 (JM), guilty on count 3 (RD), guilty on count 5 (AV), not guilty on counts 7-9 (GO), and guilty on amended count 10 (JP).

The applicant, convicted of first-degree murder and sentenced to life imprisonment without parole eligibility for 25 years, applied for a reduction in his parole ineligibility period under the 'faint hope' clause.

The court conducted an initial judicial screening to determine if there was a substantial likelihood that a jury would grant the application.

Considering the applicant's positive institutional record, successful completion of rehabilitative programs, expressions of remorse, and family support, the court found that the applicant met the threshold.

The application was allowed to proceed, and a jury was ordered to be empanelled.

The plaintiff brought a pre‑trial motion under Rule 21 seeking a determination of whether an insurer must respond to his claim arising from a motor vehicle collision involving the defendants.

The plaintiff argued that resolving the insurance coverage issue early would facilitate mediation and settlement discussions.

The court held that the plaintiff lacked standing to seek declaratory relief regarding coverage because no cause of action existed against the insurer prior to obtaining judgment against the insured defendants under s. 258 of the Insurance Act.

The court also found the issues raised involved mixed questions of fact and law and were not raised by the pleadings.

The motion was therefore dismissed.

A self-represented member of a housing co-operative sought an order appointing an inspector under the Co-Operative Corporations Act and a further order compelling compliance with the Act and the co-operative’s by-laws.

The court held that the evidence showed, at most, procedural errors and disagreements over governance rather than substantial evidence of intentional malfeasance or serious and continued mismanagement.

The court declined to intervene in the co-operative’s internal management, noting the absence of a practical proposal for the scope, funding, and administration of any inspection and the prior refusal of FSCO to appoint an inspector.

The application was dismissed with costs to the respondent.

The accused was charged with robbery arising from a bank robbery in Ottawa where the perpetrator threatened a teller and fled with cash before discarding clothing and sunglasses containing DNA evidence.

DNA recovered from the sunglasses strongly matched the accused’s profile and weaker DNA evidence linked him to the jacket found nearby.

Eyewitnesses provided only general physical descriptions and could not identify the perpetrator.

The court held that while the DNA evidence and circumstantial factors made it very probable that the accused committed the robbery, the forensic evidence could not establish when the DNA was deposited and required supporting evidence connecting the accused to the crime at the relevant time.

Applying the reasonable doubt standard, the court found the evidence insufficient to prove identity beyond a reasonable doubt and acquitted the accused.

The applicant sought certiorari to quash his committal for trial on drug trafficking charges, arguing the preliminary inquiry judge lost jurisdiction by failing to read the entirety of the mode of trial election under s. 536(2) of the Criminal Code.

The application was brought nearly six months after the committal, well past the 30-day limit.

The Superior Court of Justice dismissed the application, finding that despite the judge's omission of certain words from s. 536(2), there was substantial compliance with the provision.

The record demonstrated the applicant fully understood his options, had planned for a preliminary inquiry, and explicitly elected trial by judge alone in the Superior Court.

Following dismissal of an appeal concerning a municipal dispute over property use, the court addressed the issue of costs.

The respondent municipality sought substantial indemnity costs based on allegations of misconduct made by the appellant and the procedural complexity caused by the self-represented litigant.

The court held that elevated costs require reprehensible or outrageous conduct and declined to award substantial indemnity.

However, the court accepted that the appellant’s conduct significantly prolonged the litigation and increased costs.

After reducing certain disbursements and adjusting fee amounts, the court fixed partial indemnity costs payable by the appellant.

The appellant appealed a conviction for driving with a blood alcohol concentration exceeding 80 mg per 100 ml under the Criminal Code.

The appeal challenged the trial judge’s finding that the first breath sample was taken within two hours of the alleged offence, which permitted reliance on the statutory presumption under s. 258(1)(c).

The appellant argued that discrepancies between officers’ recorded times created a reasonable doubt about whether the sample was taken within the required period and that the trial judge failed to apply the proper burden of proof or provide sufficient reasons.

The court held that the reliable evidence, including video and intoxilyzer timestamps, established that the sample was taken within two hours.

The alleged evidentiary “stream” of timing discrepancies lacked evidentiary support, and the trial judge’s reasons were adequate for appellate review.

Following a prior judgment finding the defendants liable for a fraudulent carpet supply scheme, the court issued supplementary reasons clarifying how the plaintiff must elect judgment between an undisclosed principal and its agents for contract damages while allowing fraud-based damages to be enforced against all defendants.

The court explained the composition of the compensatory damages award and confirmed that only the contract-based component required an election of judgment.

In determining costs, the court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

Given the defendants’ fraudulent conduct and the complexity and length of the litigation, the court concluded that full indemnity costs were justified.

The plaintiff was awarded $630,475.47 in costs jointly and severally against the defendants.

The appellant appealed convictions for assault with a weapon and mischief under the Criminal Code following a trial in the Ontario Court of Justice.

The appeal argued that the trial judge improperly rejected the appellant’s evidence and misapplied the rule in Browne v. Dunn when assessing credibility.

The Crown conceded that the rule had been misapplied and that the error likely affected the credibility assessment of both the complainant and the accused.

The court held that the misapplication could have affected the outcome because the accused needed only to raise a reasonable doubt.

The convictions were set aside and a new trial was ordered, after which the Crown directed that the charges be stayed under s. 579.1 of the Criminal Code.

The applicant, convicted of first-degree murder and sentenced to life imprisonment without parole eligibility for 25 years, applied for a reduction in his parole ineligibility period under the faint hope clause.

The court conducted an initial judicial screening to determine if there was a substantial likelihood of success before a jury, applying the new threshold introduced by Bill S-6.

Despite the brutal nature of the murder and the applicant's continued denial of guilt, the court found that his exemplary institutional behaviour, low risk to public safety, and advancing age provided sufficient substance to warrant a jury hearing.

The application was granted and a jury was ordered to be empanelled.

The applicant, facing terrorism charges, elected to be tried in the provincial court.

The Director of Public Prosecutions subsequently preferred a direct indictment under s. 577 of the Criminal Code, moving the trial to the Superior Court.

The applicant sought certiorari to quash the indictment, arguing that s. 577 does not apply to an accused who elected a provincial court trial and that overriding his election violated his s. 7 Charter rights.

The Superior Court dismissed the application, holding that s. 577 broadly permits direct indictments regardless of the accused's election, and that there is no constitutional right to a trial by a judge alone in a specific court.

The appellant appealed a Master's decision granting summary judgment dismissing her counterclaim against the respondent school board.

The counterclaim originally sought educational supports for her daughter or damages to fund private education.

After the school board agreed to provide the supports, the Master found the counterclaim moot.

The appellant sought to pursue damages on unpleaded grounds.

The Divisional Court dismissed the appeal, finding the Master was correct as the pleaded claim was moot and the appellant had not moved to amend her pleadings.

The plaintiffs sought leave to appeal to the Divisional Court from an order setting aside an ex parte Anton Piller order.

The motion judge had set aside the order due to material non-disclosure, including the failure of the plaintiff, a status Indian, to disclose that his undertaking as to damages was unenforceable under s. 89(1) of the Indian Act, and the failure to present a complete factual picture.

The Divisional Court found that while the failure to disclose the Indian Act provision might not alone justify setting aside the order, the overall material non-disclosure regarding the business relationship justified the motion judge's decision.

The motion for leave to appeal was dismissed.

The plaintiff estate appealed a Master's order dismissing its action for delay.

The action, concerning a $185,000 debt, had seen little progress for over four years.

During this inexcusable delay, three key witnesses for the defendants died, including the father of the defendant who allegedly acted as the deceased's agent.

The Divisional Court upheld the Master's finding that the delay was inordinate, inexcusable, and caused substantial prejudice to the defendants' ability to defend the claim.

The appeal was dismissed.

The College moved to schedule cross-examinations and a motion before a single judge to quash a physician's appeal of his license revocation, alleging he breached an order lifting a stay by continuing to practice.

The physician moved for an expedited appeal date.

The court declined to schedule the College's motion before a single judge, finding that lifting a stay does not constitute an order that can be breached under Rule 60.12, and directed that the motion to quash be heard by the full panel hearing the appeal.

The court scheduled the appeal and granted a sealing order for third-party medical records.

The defendant employer brought a motion for leave to appeal an order refusing to strike out the statement of claim against it.

The employer argued that at common law, an employer cannot be impleaded by an employee seeking a remedy for their union's breach of the duty of fair representation.

The court dismissed the motion, holding that the common law is dynamic and a plaintiff should not be denied the possibility of establishing a right to a remedy at the pleadings stage.

The appellant rented a loader from the respondent and accidentally submerged it in water, causing severe engine damage.

The respondent successfully sued in Small Claims Court for repair costs and lost rental income.

The appellant appealed to the Divisional Court, raising issues regarding machine identification, causation of the engine damage, proof of lost rentals, betterment, and the damage waiver clause.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's findings of fact and liability.