Edward E. Gareau

After a trial concerning a commercial lease dispute, the plaintiff municipality obtained judgment for damages and the defendant’s substantial counterclaim was dismissed.

The court addressed the issue of costs following written submissions from the plaintiff and no submissions from the defendant.

The court considered the discretion under s. 131 of the Courts of Justice Act, the proportionality principle, and the effect of Rule 76 of the Rules of Civil Procedure regarding simplified procedure.

Although the plaintiff sought more than $68,000 in partial indemnity costs, the court held that the amount was disproportionate to the recovery and complexity of the case.

The court fixed costs at $40,000 inclusive of HST and disbursements.

The accused, charged with sexual assault, brought an application under s. 276.2 of the Criminal Code seeking permission to cross-examine the complainant about prior interactions and alleged sexual activity between them.

The defence argued the evidence was relevant to the defence of honest but mistaken belief in consent and necessary to explain the accused’s state of mind.

The court held that certain prior interactions, including cuddling and holding, the complainant placing the accused’s hand on her breast, and the complainant sending a nude photograph, were admissible because they were relevant and their probative value outweighed the prejudicial effect under s. 276(2).

However, the accused was not permitted to cross-examine the complainant about her alleged statement that she had been raped by her ex-husband.

The application was therefore granted in part.

Following earlier motions by several defendants seeking dismissal of the action, a stay, or security for costs, the court addressed the issue of costs.

The defendants succeeded only in obtaining security for costs orders, and those orders were granted in amounts lower than requested.

The court refused the defendants’ requests to dismiss the action based on a final release, want of prosecution, or late service of the statement of claim.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court found the success of the parties to be divided when viewed globally.

In the circumstances, no costs order was appropriate.

Following a personal injury trial in which the plaintiff succeeded and obtained damages exceeding pre‑trial settlement offers, the court determined the appropriate costs award.

The court considered the costs discretion under s. 131 of the Courts of Justice Act and the factors under Rule 57.01 of the Rules of Civil Procedure, as well as the cost consequences relating to Rule 76 simplified procedure.

Although the damages awarded were within the simplified procedure monetary threshold, the court found it was reasonable for the plaintiff to proceed under the ordinary procedure given the seriousness of the injuries, the defendant’s firm denial of liability, and the procedural complexity including a jury trial that was later discharged.

The court held that Rule 76 should not deprive the plaintiff of costs and that the plaintiff’s favourable settlement offers justified partial indemnity costs before the first offer and substantial indemnity costs thereafter.

Costs were fixed at $84,100 inclusive of HST and disbursements.

The plaintiff brought a negligence action after suffering a fractured shoulder in a fall at a restaurant step leading into a private party room.

The court considered the occupier’s duty of care under s. 3(1) of the Occupier’s Liability Act and whether the restaurant took reasonable steps to ensure patrons were safe.

Evidence showed staff failed to follow established protocols for escorting guests and warning them about the step, and the step lacked illumination or other safety features.

The court found the warning sign inadequate and concluded the occupier breached its statutory duty.

However, the plaintiff was found 25% contributorily negligent for failing to watch where she was walking as she approached the step.

General damages of $50,000 and limited special damages were awarded, reduced by contributory negligence.

The defendant brought a motion under Rule 56.01 of the Rules of Civil Procedure seeking security for costs against a corporate plaintiff with insufficient assets in Ontario.

The plaintiff conceded it lacked assets but argued that both the corporation and its sole shareholder were impecunious and that ordering security would stifle a meritorious claim for breach of contract and lost profits.

The court reviewed the jurisprudence governing corporate impecuniosity and the evidentiary burden on shareholders to show they cannot raise funds to post security.

Despite limited financial disclosure, the court accepted sworn evidence that both the corporation and its shareholder lacked the ability to provide security and found that denying the plaintiff the ability to proceed would result in injustice.

The motion for security for costs was therefore dismissed, though the successful plaintiff was denied costs due to inadequate disclosure during the motion.

Following a lengthy civil trial concerning whether disputed land constituted a public road, the court addressed the issue of costs.

The plaintiffs had succeeded on all substantive issues and had made multiple written offers to settle that were closer to the final judgment than the defendants’ proposals.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered the parties’ offers to settle and the plaintiffs’ overall success.

The court reduced portions of the plaintiffs’ claimed preparation costs but found the hourly rates, daily trial fees, and disbursements generally reasonable.

Costs were fixed at $90,000 inclusive of disbursements and HST payable by the defendants jointly and severally.

The applicant sought a writ of possession for a residential property she owned as sole beneficiary under a will.

The respondent, her son, occupied the property and challenged her entitlement based on a separation agreement executed after the will that purportedly released estate claims.

The validity of the will had previously been upheld by the Superior Court of Justice, affirmed by the Court of Appeal, and leave to appeal to the Supreme Court of Canada had been denied.

The court held that the respondent could not re‑litigate the same issue and that the applicant was entitled to enforce the prior judgment.

A writ of possession was granted with a delayed effective date to permit the respondent time to vacate.

The respondent father brought a motion seeking expanded interim access to the children, including additional overnight periods, a week‑about summer schedule, travel notification requirements for the mother, and specified telephone access.

The court found that the parties had conflicting factual accounts that could not be resolved on motion and that the matter was scheduled for trial within a few months.

The court declined to substantially alter the existing interim custody and access order.

Limited adjustments were made to establish specific summer access dates and structured telephone access to reduce conflict.

Each party was ordered to bear their own costs.

A case conference addressed two related proceedings: a family law claim for spousal support and an estates dispute regarding the validity of wills and powers of attorney for an incapable individual.

The court ordered extensive financial disclosure from multiple parties who had managed or received funds belonging to the incapable individual, including bank statements, property disposition records, and expense breakdowns.

The court rejected the spouse’s position that she could retain and manage the incapable individual’s assets without disclosure, finding that her claim for spousal support created an adverse interest requiring transparency.

The court also ordered hospital records to be produced and directed that no interlocutory steps occur in the estates proceeding until a pre‑trial conference.

The appellant father appealed a decision of the Ontario Court of Justice dismissing his motion to terminate child support and instead increasing support for an adult child enrolled in full-time education.

The trial judge applied s. 3(2)(a) of the Child Support Guidelines and ordered table child support based on the father’s income, finding insufficient evidence to conduct a s. 3(2)(b) analysis regarding the child’s needs and means.

The appellant argued errors relating to disclosure, the child’s refusal to communicate with him, failure to consider disability benefits, and failure to impute income to the mother.

The appellate court held that the trial judge properly exercised discretion, correctly placed the evidentiary burden on the party seeking termination, and made no palpable and overriding error.

The appeal was dismissed.

The respondent father brought a motion seeking specified interim parenting time with the parties’ children, including alternating weekends, summer access, and telephone contact.

The applicant mother opposed the request and sought supervised access based on allegations of abusive behaviour during the marriage.

The court found that the evidence, including Children’s Aid Society records and prior unsupervised parenting time, did not establish a risk of harm to the children warranting supervision.

Interim unsupervised access was granted with respect to the younger child, while the older child’s participation was not compelled due to her expressed reluctance.

The court also directed involvement of the Office of the Children’s Lawyer and imposed conduct conditions on both parents.

The Crown appealed an acquittal following the exclusion of breathalyzer evidence in an impaired driving prosecution.

The trial judge found that the accused’s right to counsel under s.10(b) of the Canadian Charter of Rights and Freedoms was breached when police failed to provide a reasonable opportunity to contact counsel before administering breath tests.

Applying the principles from R. v. Prosper, the court held that a brief 20‑second opportunity to use a telephone without assistance or access to counsel resources did not constitute a reasonable opportunity to exercise the right to counsel.

The accused’s statement “Let’s get this over with” was found not to be a clear and unequivocal waiver of the right.

The court further held that once the Charter breach occurred, both breath samples were properly excluded under s.24(2).

The applicant spouse brought an interim motion seeking child support for an adult child attending college, interim spousal support, and exclusive possession of the matrimonial home.

The respondent sought an order for the sale of the matrimonial home and livestock located on the property.

The court determined the respondent’s income by averaging several years of earnings due to fluctuating overtime and ordered guideline child support for the summer months while the adult child resided with the applicant, with the issue to be reviewed pending further information regarding educational expenses.

Interim spousal support was ordered based on the parties’ financial circumstances and the applicant’s unemployment, with the court declining to impute income at the interim stage.

The respondent’s motion for sale of the home and livestock was adjourned pending proper valuations to permit accurate net family property calculations.

The offender pleaded guilty to sexual interference and sexual assault involving a 17‑year‑old who sought spiritual healing from him.

The offender, a respected cultural leader and pipe carrier within the Ojibway community, exploited a position of trust by persuading the complainant that sexual touching was part of a healing ritual.

The court considered significant aggravating factors including the victim’s age, the abuse of authority, and a prior conviction for sexual assault.

Mitigating factors included a guilty plea, remorse, deteriorating health, and extensive Gladue factors detailing systemic and personal hardships experienced by the Indigenous offender.

Balancing denunciation and deterrence with the offender’s background, the court imposed a custodial sentence followed by probation and ancillary orders.