Gerry Smits

The appellant appealed his convictions for sexual assault and sexual interference, alleging ineffective assistance of trial counsel.

He argued that his counsel failed to bring a section 276 application, inadequately advised him on his mode of trial election, and prevented him from making an informed choice about testifying.

The Court of Appeal dismissed the appeal, finding that the appellant failed to establish the factual basis for his claims or that there was a reasonable probability he would have made different decisions had he received competent advice.

The gaoler brought a detention review under s.525 of the Criminal Code for the accused, who was detained on drug charges.

The trial had already commenced and was nearing judgment.

The court dismissed the review, finding it lacked jurisdiction under s.525 because the trial had started, and any bail application at that stage must be made to the trial judge under s.523(2)(a) of the Criminal Code.

The plaintiff, Consolidated Fastfrate Inc., moved for summary judgment against the defendants (2516295 Ontario Ltd., Great Lakes Milling Company Ltd., and Great Lakes Milling Company Inc.) for outstanding principal and interest under a credit agreement.

The court found all three defendants liable, with Great Lakes Milling Company Ltd./2516295 Ontario Ltd. bound by the credit agreement's 26.82% annual interest rate, and Great Lakes Milling Company Inc. bound by the 18% annual interest rate stated on invoices.

The defendants' arguments regarding force majeure, frustration, and impossibility due to the COVID-19 pandemic were rejected.

The court granted summary judgment for the plaintiff, including interest on unpaid amounts and accrued interest, and awarded partial indemnity costs.

The plaintiffs were unsuccessful on a motion to amend their Statement of Claim.

The defendants sought partial indemnity costs of $10,000, while the plaintiffs argued for a range of $5,000 to $6,000, citing a power imbalance and limited financial means.

The court rejected the plaintiffs' arguments regarding power imbalance and the necessity of matching time spent, finding the defendants' time investment reasonable.

Applying principles of indemnity, reasonable expectation, and proportionality, the court awarded the defendants costs fixed at $7,500 inclusive, payable within 30 days.

The plaintiffs, a minor hockey coach and a manager/trainer, were suspended by the defendant hockey associations.

They brought an action and later moved to amend their Statement of Claim to add allegations of breach of natural justice, defamation, intentional infliction of mental distress, and breach of contract.

The court dismissed the motion, finding that the proposed amendments failed to disclose reasonable causes of action.

Specifically, breach of natural justice is not a freestanding cause of action, the defamation claims lacked required particulars, the mental distress claims failed to plead flagrant conduct or specific intent, and the breach of contract claim lacked material facts.

The applicant, the sole beneficiary of her late son's intestate estate, brought an application to remove the respondent, her other son, as estate trustee.

The respondent failed to communicate with the applicant, delayed selling the estate's primary asset because he hoped to purchase it himself, rented the property without consultation, and failed to provide an accounting.

The court found that the respondent acted in his own self-interest, ignored the wishes of the sole beneficiary, and endangered the administration of the estate.

The application was granted, the respondent was removed as estate trustee, and a replacement trustee was appointed.

The moving parties sought an extension of time to file a cross-appeal and an order for security for costs against the responding parties.

The court granted the extension of time, finding the delay was not substantial, there was no prejudice, and the cross-appeal had merit.

The court also granted the security for costs, finding good reason to believe the appeal was frivolous and vexatious, and the appellants had insufficient assets in Ontario to pay costs.

The court noted the responding parties' conduct, including changes in counsel and failure to comply with previous orders, contributed to the finding of vexatiousness.

The plaintiff brought a summary judgment motion for $242,546.99 USD owed for shipments of corn, plus interest, and sought to enforce a personal guarantee against the individual defendant.

The corporate defendant admitted owing money but disputed the exact amount and interest charges, while the individual defendant disputed the validity and scope of the personal guarantee.

The court granted summary judgment, finding no genuine issue requiring a trial, as the evidence clearly established the debt, the contractual interest rate, and the unlimited scope of the personal guarantee.

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 applicant brought a motion to change regarding the respondent's access with their child, specifically seeking a final order prohibiting the respondent from driving with the child in his motor vehicle due to past incidents of impaired driving and alcohol misuse.

The court found the respondent's evidence regarding his alcohol consumption unreliable and noted his non-compliance with previous orders.

While acknowledging the risk to the child, the court determined that a blanket prohibition on driving would be overbroad and punitive.

Instead, a final order was issued restricting the respondent to transporting the child only when his blood alcohol concentration is zero and he is not impaired by any drug.

This costs endorsement followed the dismissal of the respondent's motion to change, making the applicant the successful party at trial.

The parties could not agree on costs.

The applicant sought full indemnity costs of $42,535.20, while the respondent argued for a lower amount, citing reasonable behaviour and financial hardship.

The court found the respondent's trial position, seeking sole custody and severely limited access for the applicant, to be manifestly unreasonable.

The court also rejected the respondent's claim of financial hardship, noting the applicant's lower income.

Applying the Family Law Rules and relevant case law, the court reduced the applicant's former counsel's accounts by 50% and current counsel's accounts by 10%, ultimately awarding the applicant $32,310 in costs.

The appellants appealed a judgment of the Superior Court of Justice dated February 16, 2018.

The appellants did not appear at the hearing of the appeal.

The Court of Appeal dismissed the appeal and fixed costs in the amount of $6,830.52 inclusive.

The appellant appealed the dismissal of his action for damages arising from the transfer of his house to his former common law spouse and caregiver in 2004.

The appellant, who suffered a catastrophic brain injury in 1998, had transferred the house to the respondent, who held his power of attorney.

The respondent subsequently mortgaged the property to her mother and later transferred it to her mother in satisfaction of the mortgage.

The trial judge found the transfer was a gift and dismissed all claims.

The Court of Appeal allowed the appeal, finding the trial judge's reasons were deficient and failed to address the pleaded claims for breach of trust, breach of fiduciary duty, and unjust enrichment.

A new trial was ordered.

The respondent brought three motions, including one for contempt against the applicant for failing to transfer property title as per a prior order.

The other two motions were withdrawn.

The court found the applicant in civil contempt, ruling that the prior order was clear and that the applicant willfully disobeyed it by imposing additional conditions for the transfer not stipulated in the order.

The court ordered the applicant to purge her contempt by signing the transfer documents by a specified date.

Costs were awarded to the respondent for the contempt motion, and costs thrown away were awarded to the applicant for the withdrawn motions, resulting in a net cost award to the respondent.

The plaintiff sought specific performance of an agreement of purchase and sale for a property and damages for breach of contract.

The transaction failed to close on the stipulated date due to a series of events beyond the plaintiff's control, including technical issues.

The defendant refused to extend the closing, relying on a "time is of the essence" clause.

The court considered the uniqueness of the property and the defendant's good faith, ultimately finding that the "time is of the essence" clause was strictly enforceable and that the defendant did not act in bad faith by insisting on strict compliance.

The plaintiff's applications for specific performance and damages were dismissed.

The parties settled most issues at the outset of the trial, leaving the residency scheme for their 11-year-old child as the sole issue.

The respondent father sought a week-about residency scheme for the child, relying on the child's expressed preference to spend more time with him.

The court found that the applicant mother had been the primary caregiver and provided a stable environment, while the father's proposed plan had many contingencies and lacked evidence regarding child care assistance.

The court held that the child's views and preferences were outweighed by other factors under section 24 of the Children's Law Reform Act, and ordered that the existing residency scheme remain in place, subject to a future review.

The appellant appealed a decision of the Discipline Committee of the College of Veterinarians, which revoked his license to practice veterinary medicine and ordered him to pay costs of $160,000 for unprofessional conduct.

The appellant raised several grounds of appeal, including missing transcripts, failure to disclose documents held by a third party, and alleged bias of an expert witness.

The Divisional Court dismissed the appeal, finding the Committee's decision reasonable and noting that the appellant failed to bring a proper motion for third-party disclosure and consented to the expert's qualification.

Costs of the appeal were awarded to the respondent on a partial indemnity basis.

The appellant appealed the dismissal of her claim for a constructive trust interest in a home owned by her former common law partner.

The parties cohabited for 15 years.

The appellant claimed she was entitled to half the equity in the home based on her contributions during cohabitation, including payment of half the monthly mortgage costs, utilities, food, and domestic work.

The trial judge dismissed the claim, finding no unjust enrichment and no joint family venture.

The Court of Appeal upheld the dismissal, finding the trial judge made no error of fact or law.

The appellant was never on title, never financially liable for the mortgage, and did not pay for capital repairs, insurance, or property taxes.

The parties kept their finances separate and did not demonstrate an intention to integrate their financial lives.

The applicant sought a constructive trust interest in the respondent's home after a 15-year cohabitation.

The court applied the unjust enrichment framework from Kerr v. Baranow, finding no joint family venture and no tangible benefit conferred by the applicant that unjustly enriched the respondent.

The applicant's claim for a constructive trust was dismissed.

A counterclaim for pet damage by the respondent was also dismissed due to lack of mitigation evidence.

The applicant sought substantial indemnity costs for a period of over a year, following a successful motion to fix child support to the table amount.

The court, applying Family Law Rule 24(10), determined that costs should be decided promptly after each step and restricted the award to the specific issue argued on August 9, 2016.

Given the intertwining of evidence with a broader motion to change, the court awarded the applicant partial indemnity costs for three hours of oral argument and preparation, totaling $847.50, reserving other costs to the judge finally disposing of the motion to change.