Gordon D. Lemon

Following the dismissal of an application seeking to set aside a by-law passed at a general meeting of a temple organization, the court addressed costs.

The unsuccessful applicants argued that no costs should be awarded because they were public interest litigants and alleged governance concerns within the organization.

The court rejected the characterization of the applicants as public interest litigants, finding the litigation was primarily driven by efforts to regain control of the organization rather than a broader public interest.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court determined the respondents were entitled to substantial indemnity costs.

Costs were fixed at $30,000 payable jointly and severally by the applicants.

The applicant brought a motion to vary existing child and spousal support orders following the respondent’s earlier-than-expected retirement and pension payout.

The court found a material change in circumstances sufficient to justify reconsideration of spousal support but dismissed the claim for continued child support.

The judge identified unresolved issues regarding the proper actuarial treatment of the pension payout and the appropriate calculation of spousal support, including whether the Spousal Support Advisory Guidelines should apply.

The court sought further submissions from counsel and potentially the actuaries to determine the correct approach before finalizing the variation.

A court-appointed receiver sought approval of a sale of the corporate defendant’s convenience store assets for $140,000 following a marketing process.

One shareholder opposed the sale and sought to cancel it, discharge the receiver, and regain control of the business, arguing the price was below market value and the sales process was flawed.

Applying the principles governing approval of receiver sales, including the factors from Soundair, the court held the receiver had acted reasonably and in the interests of stakeholders.

The competing offer lacked a deposit and contained significant conditions, while the approved offer was firm and supported by the secured creditor and the other shareholder.

The court approved the sale and dismissed the defendants’ motions to stop the transaction and remove the receiver.

During a jury trial for importing cocaine, the Crown sought to admit opinion evidence from a police officer regarding the pricing and value of cocaine imported through Pearson Airport.

The defence challenged the admissibility of the proposed expert evidence, arguing the witness lacked proper qualifications and that the evidence could improperly influence the jury.

Applying the criteria for expert evidence from R. v. Mohan and the Supreme Court’s guidance in R. v. Sekhon, the court assessed relevance, necessity, absence of exclusionary rules, and proper qualification.

The court found that the evidence was relevant to the issue of the accused’s knowledge and that the jury would not otherwise understand the value of the quantity of cocaine involved.

Based on the officer’s extensive investigative experience and exposure to pricing information through investigations and intelligence sources, the court concluded he possessed the requisite specialized knowledge and permitted the opinion evidence.

During a conference call in ongoing litigation between the parties, the court addressed procedural steps relating to a proposed motion for leave and a motion concerning affidavits of documents.

The responding party was permitted to prepare and serve materials seeking leave to bring a motion alongside the requested documentary motion.

The court directed that the materials be delivered to chambers by a specified date and scheduled a follow‑up conference call with counsel to review the materials and provide further direction.

Following dismissal of a family law appeal concerning renewal or termination of spousal support, the successful respondent sought costs of the appeal.

The court applied the presumption under the Family Law Rules that a successful party is entitled to costs and considered factors including the importance of the issue, the parties’ conduct, settlement efforts, and ability to pay.

Although the unsuccessful appellant acted sincerely and not unreasonably, the respondent had succeeded at both trial and on appeal and reasonably expected a costs award.

The court declined to order full indemnity but found the claimed time and hourly rate reasonable.

Costs were fixed at a fair and reasonable amount of $2,500 payable by the appellant.

Applicants sought to set aside a temple by-law passed at a September 2007 general meeting, arguing that forged membership applications and improper proxies invalidated the meeting and the resulting constitution of the organization.

They further alleged that the current board improperly restricted membership.

The court held that the applicants failed to prove on a balance of probabilities that forged memberships affected the June 2007 election or that proxies from that meeting were improperly used to pass the September 2007 by-law.

The evidence also did not establish that the board had improperly restricted membership.

The court upheld the validity of the by-law and dismissed the application.

The accused was charged with sexual assault and touching a complainant for a sexual purpose allegedly occurring when the complainant was a child between 1999 and 2004.

The trial judge applied the credibility and reasonable doubt framework requiring consideration of the accused’s evidence, whether it raised a reasonable doubt, and whether the Crown’s case proved guilt beyond a reasonable doubt.

Although the complainant testified sincerely, the court identified significant reliability concerns arising from inconsistencies, contextual improbabilities, and uncertainty in the complainant’s recollection of key events and locations.

The accused provided clear denials and supporting evidence that was not rejected.

The court concluded that the Crown had not proven the charges beyond a reasonable doubt.

Following a successful application to rectify a will, the court determined the appropriate costs allocation among the parties.

The estate trustee sought costs against two respondents, while one respondent sought costs against the estate or the drafting solicitor.

Applying Rule 58.06 and Rule 49 of the Rules of Civil Procedure, the court considered the successful party principle, settlement offers, the conduct of the parties, and proportionality.

The court concluded that the litigation arose from the testator’s own actions and therefore reasonable costs should be borne by the estate.

Costs were awarded to the estate trustee and one respondent from the estate, while another unsuccessful respondent was denied costs.

Following dismissal of the plaintiff’s motion to set aside an order dismissing the action, the court addressed the defendants’ claim for costs.

The defendants sought over $27,000 in legal fees and additional disbursements, relying on extensive work performed by multiple lawyers, clerks, and students.

The court accepted that the motion’s outcome was predictable and found the staffing and hours claimed by the defendants excessive given the straightforward nature of the motion.

While acknowledging that law firms may allocate work among multiple professionals, the court held that the losing party should not bear the costs of training junior counsel.

Costs were fixed at $13,000 payable by the plaintiff.

Following a motion in which the defendant successfully set aside a default judgment and obtained leave to file a statement of defence, the court determined the appropriate costs order.

The successful moving party sought costs of the motion, while the plaintiff sought higher costs relating both to the motion and the earlier default hearing.

The court found both counsel’s time and rates reasonable but rejected the plaintiff’s attempt to recover costs for earlier proceedings of which the defendant had no knowledge.

Considering the relevant factors, the court fixed costs in favour of the successful moving party, payable only if it ultimately succeeded at trial.

The plaintiff shareholder brought a motion in a dispute between equal shareholders of a corporation operating a convenience store, seeking permission to sell the business, appointment of a receiver to supervise the sale, forfeiture of a $25,000 deposit under a prior court order, and an order striking the defendant’s statement of defence.

The court denied an adjournment request by the responding shareholder and accepted the recommendation of the court‑appointed monitor that the business be sold promptly to avoid further litigation expenses.

A receiver was appointed to conduct the sale and supervise operations, with the moving party permitted to control day‑to‑day business activities subject to cooperation with the receiver.

The court also ordered forfeiture of the $25,000 deposit in accordance with an earlier order.

However, the request to strike the defendant’s defence was refused given the defendant’s circumstances abroad and the expectation that issues could be addressed upon distribution of sale proceeds.

The plaintiff moved under Rule 37.14 of the Rules of Civil Procedure to set aside an order dismissing the action for failure to comply with discovery undertakings and prior costs orders.

The dismissal had been obtained without notice pursuant to a prior court order permitting the defendants to move if compliance was not achieved.

The court held the motion was not brought forthwith after the order came to the plaintiff’s attention and that no reasonable explanation was provided for the continued failure to complete undertakings or pay costs despite multiple extensions.

The court also found the defendants had experienced prejudice due to outstanding discovery obligations affecting their ability to defend the claim.

The request to set aside the dismissal and extend compliance was therefore refused.

Following a family law application for custody, access, child support, spousal support, and equalization, the respondent’s pleadings were struck after he left the jurisdiction and failed to participate in the proceedings.

The court proceeded by way of an uncontested hearing.

The court granted the applicant sole custody of the four children with conditional access to the respondent upon his return to Canada.

Income was imputed to the respondent based on prior financial disclosure, resulting in child support and a substantial lump sum spousal support award under the Spousal Support Advisory Guidelines.

Property division and equalization were also addressed, including transfer of the matrimonial home and a timeshare asset, with set‑off applied between the equalization payment and spousal support.

A procedural endorsement in a family law motion to change where the originally scheduled hearing dates conflicted with the judge’s schedule.

Following a conference call with counsel and consultation with the trial office, the court vacated the previously scheduled dates and set new hearing dates.

The motion was directed to be heard in Brampton.

The judge noted that although not formally seized of the matter, it was anticipated that he would hear the motion.

Following a motion concerning a phased access schedule for a young child, both parties sought costs on a full recovery basis.

The court noted that its earlier decision reflected partial success for each side and that neither party obtained the relief they sought.

The court reiterated that cost awards are intended to partially indemnify successful litigants, encourage settlement, and discourage inappropriate litigation conduct.

In the absence of settlement offers and given the sensitive family law context requiring judicial intervention, the court found neither party was successful.

Accordingly, no costs were awarded.

The defendant brought a motion to set aside a default judgment and writ of seizure and sale arising from a breach of contract claim related to services for preparing SR&ED tax credit documentation.

Applying the test articulated by the Court of Appeal, the court considered promptness of the motion, explanation for the default, existence of an arguable defence, potential prejudice, and the integrity of the administration of justice.

Although the court expressed doubts about the credibility of the defendant’s evidence regarding service and the factual basis of the defence, it accepted that the motion was brought promptly and that there was a plausible explanation for the failure to defend.

The court also found that the defendant had an arguable defence on the merits concerning whether it qualified for SR&ED credits and whether the contract had been terminated.

Balancing the relevant factors, the court concluded that the interests of justice favoured setting aside the default judgment.

The respondent in a family law proceeding brought a motion to set aside a final order obtained after an uncontested hearing.

The court found that the applicant’s counsel proceeded with the uncontested trial without notifying opposing counsel despite ongoing correspondence and knowledge that the respondent was represented.

The court held that counsel failed to disclose material procedural background and failed to respond to communications, undermining the fairness of the process.

Applying the principles governing motions to set aside default judgments and considering the integrity of the administration of justice, the court found that the moving party acted promptly, had a valid explanation for the default, and demonstrated an arguable defence.

The final order was set aside and costs were awarded against the applicant.

In a family law proceeding, the court conducted a case management conference call with counsel to address trial preparation and streamline the issues.

The parties continued narrowing the matters in dispute and working to shorten the anticipated trial.

The court directed that a further conference call be scheduled to continue case management and facilitate efficient trial preparation.

Following a prior application decision, both sides sought costs.

The applicant succeeded on the issue of lack of notice regarding a proposed sale of corporate assets, while the respondents succeeded on the issue concerning entitlement to certain chattels.

The court reviewed the purposes of costs awards and noted the absence of settlement offers.

Considering the mixed success and the relative importance of the issues, the court declined to award costs to either party.