Graeme Mew

In a construction lien action, the defendant moved to oppose confirmation of a master's costs decision following trial.

Prior to trial, the defendant had delivered an offer to settle for $75,000 inclusive of costs and interest.

After trial, the plaintiff recovered a total amount for principal and costs that was approximately $3,000 less than the settlement offer, but the master declined to apply the cost consequences under Rule 49.10 of the Rules of Civil Procedure on the basis that the offer was vague because it included unquantified costs.

The court held that the inclusion of costs within a fixed settlement amount did not render the offer incapable of meaningful comparison and that the master erred in failing to apply Rule 49.10.

The court ordered that the plaintiff receive partial indemnity costs to the date of the offer and the defendant receive partial indemnity costs thereafter.

The moving defendants sought judgment enforcing an alleged oral settlement reached during a pre‑trial conference.

The responding plaintiffs disputed that a binding settlement had been made and argued that communications from the pre‑trial could not be relied upon due to settlement privilege and Rule 50.09 of the Rules of Civil Procedure.

The court held that communications made during settlement discussions, including those occurring at a pre‑trial conference, may be admitted where necessary to prove the existence or terms of a settlement agreement.

Based on uncontradicted affidavit evidence from counsel, the court found that the plaintiffs made an offer to dismiss the action against the moving defendants without costs and that the offer was accepted.

The court concluded a valid settlement existed and exercised its discretion to enforce it.

The plaintiff alleged copyright infringement relating to the distribution and online listing of his book.

The defendants moved for summary judgment under Rule 20, arguing there was no evidence they had printed, distributed, or sold infringing copies and that any online listing occurred outside Canada.

The court held that the evidentiary record established the defendants never possessed or sold copies of the book and that the online listing did not create a sufficient connection to Canada to engage the Copyright Act.

The court also found no evidence supporting claims of secondary infringement or infringement of moral rights.

As there was no genuine issue requiring a trial, the defendants were entitled to summary judgment.

The regulatory college applied for injunctive relief under the Health Professions Procedural Code alleging that the respondent unlawfully practised traditional Chinese medicine and held herself out as a practitioner after the profession became regulated.

Evidence showed that the respondent, who was not registered with the college, examined an individual, communicated a traditional Chinese medicine diagnosis, used restricted titles, and represented herself through business materials as qualified to practise acupuncture.

The court found that the respondent communicated a diagnosis and held herself out as a practitioner contrary to the Traditional Chinese Medicine Act, 2006 and the Regulated Health Professions Act, 1991.

The court concluded that providing health advice in these circumstances created a foreseeable risk of serious bodily harm and also breached statutory restrictions on the use of the title “Doctor.” The requested injunction was granted.

Multiple purchasers of commercial condominium units alleged misrepresentation and overcharging by the developer and sought interlocutory relief preventing the developer from disposing of its remaining assets pending trial.

The moving parties argued the developer had limited assets and that dissipation would frustrate recovery of any judgment.

The court held that pre‑judgment restraint of assets is an extraordinary remedy requiring a strong prima facie case, evidence of asset dissipation outside the ordinary course of business, and proof of irreparable harm.

The evidence did not establish that the developer was disposing of assets improperly or that irreparable harm would result.

The motion to restrain disposition of assets was dismissed.

The defendants brought a pre‑trial motion seeking permission to call several non‑party witnesses residing outside Canada to testify at trial by video conference.

The plaintiff opposed the request, arguing that credibility assessment, document handling, and logistical issues required in‑person testimony.

Applying Rule 1.08 of the Rules of Civil Procedure and the proportionality principles in Rule 1.04, the court held that modern video conferencing technology can permit effective credibility assessment and efficient presentation of evidence.

Given the witnesses’ overseas residence, professional obligations, and the disproportionate cost and difficulty of travel, the court granted leave for their testimony to be given by video conference subject to procedural conditions.

During a civil jury trial for defamation arising from a televised investigative documentary, the media defendants sought a ruling that the plaintiff’s claim for invasion of privacy should not be put to the jury.

The defendants argued that the Personal Information Protection and Electronic Documents Act constituted a complete legislative scheme precluding a common law privacy claim and that the tort of intrusion upon seclusion did not apply to journalistic publication.

The court held that PIPEDA does not oust the development of common law privacy claims and that media defendants are not categorically immune from liability for intrusion upon seclusion.

However, the scope of such claims is limited where journalistic activity engages freedom of expression and established defamation defences.

The court concluded that a properly instructed jury could potentially find an unlawful intrusion and therefore allowed the privacy claim to proceed to the jury with limiting instructions.

The plaintiff brought a motion shortly before trial seeking a determination under Rule 21.01(1)(a) of the Rules of Civil Procedure that a televised documentary was prima facie defamatory, along with directions regarding the order of evidence and a proposed bifurcation of liability and damages.

The court held that although questions about defamatory meaning can sometimes be determined before trial, such motions must be brought promptly under Rule 21.02.

Because the action had been underway for nine years and the motion was brought only weeks before trial, the request for a Rule 21 determination was refused.

The court also declined to modify the usual order of presentation of evidence in a jury trial or to bifurcate liability and damages absent party consent.

The plaintiff was granted leave to file a DVD of the documentary as part of the record.

In a defamation trial arising from a televised investigative report, the plaintiff moved to prevent the defendants from relying on the defences of fair comment and responsible communication before the jury.

The court considered the governing principles from the Supreme Court of Canada in WIC Radio Ltd. v. Simpson and Grant v. Torstar Corp., as well as the gatekeeping role of the trial judge when determining whether a defence should be left to the jury.

Applying the evidentiary threshold described in Boland v. The Globe and Mail, the court held that the question is whether there is any evidence upon which a jury could find the defence established.

The court found that there was ample evidence supporting both defences and that disputes about credibility and weight were matters for the jury.

Accordingly, the plaintiff’s request to remove those defences from the jury’s consideration was dismissed.

During a civil jury trial, the defendants sought to read portions of the plaintiff’s examination for discovery into evidence pursuant to Rule 31.11(1) of the Rules of Civil Procedure.

The plaintiff objected, arguing that the rule in Browne v. Dunn required the defendants to first put the evidence to the plaintiff during cross‑examination at trial.

The court held that Rule 31.11 permits a party to read discovery evidence into the record as admissions provided it is not used for impeachment purposes.

Balancing fairness considerations and the trial context, including the presence of a jury, the court allowed the defendants to read in the proposed excerpts.

The court also indicated that the plaintiff could seek leave to provide reply evidence if the read‑ins raised issues that required a response.

During a defamation trial arising from a documentary alleging scientific fraud, the defendants sought to introduce written interrogatories from a separate civil proceeding in Newfoundland and Labrador involving the plaintiff and a former research nurse.

The plaintiff objected, arguing that admission would violate the implied undertaking rule governing discovery materials from other litigation.

The court held that the defendants were not parties bound by the undertaking in the Newfoundland action and that, in any event, the common law general inclusionary rule favours admission of relevant evidence even if improperly obtained.

The interrogatories were found potentially relevant to credibility and to the defendants’ defences of fair comment and responsible journalism.

The court therefore admitted the interrogatories into evidence.

During a defamation trial, the plaintiff brought a motion to read into the record an affidavit sworn by a deceased witness.

The defendants opposed the motion, arguing the affidavit was inadmissible hearsay.

The court applied the principled exception to the hearsay rule, finding that the affidavit met the requirement of threshold reliability.

The motion was granted, and the affidavit was admitted with a mid-trial instruction to the jury regarding its weight.

In a medical malpractice action, the plaintiff sought reconsideration of an earlier costs endorsement that awarded costs to neither party after both sides' summary judgment motions were dismissed.

The plaintiff argued her non-compliance with page limits was inadvertent and that her own motion was effectively provoked by the defendant's limitation-based summary judgment motion.

The court held that divided success remained the proper characterization because each party had unsuccessfully pursued summary judgment.

Reconsideration was refused and the no-costs disposition was maintained.

Following conviction after trial for sexual assault, the court imposed a custodial sentence for intercourse with a complainant who was intoxicated, intermittently conscious, and incapable of consenting.

The court treated the complainant's vulnerability and the fact of unprotected intercourse as aggravating, while recognizing the offender's lack of record, work history, and community support as mitigating.

Immigration consequences were considered but not permitted to distort proportionality.

A sentence of two years less a day, less Summers credit, followed by two years probation and multiple ancillary orders, was imposed.

The court sentenced the accused after jury convictions for trafficking in crack cocaine, possession of crack cocaine for the purposes of trafficking, and possession of proceeds of crime arising from an undercover street-level drug buy.

The sentencing analysis balanced denunciation and deterrence for crack trafficking against strong rehabilitation evidence, including addiction, parental responsibilities, compliance with Narcotics Anonymous, and a positive pre-sentence report, while also noting relapse and prior addiction-related convictions.

A custodial sentence was found necessary, but the court imposed a relatively modest term in light of the connection between addiction and the offences.

The accused received six months' imprisonment less time served, followed by 18 months' probation with treatment and community service conditions.

A mandatory weapons prohibition was imposed, but the requested DNA order and victim fine surcharge were declined.

The moving defendants sought to strike a jury notice in a defamation and invasion of privacy action arising from a broadcast alleging scientific fraud and financial deception.

The court reviewed the governing principles respecting the substantive right to a civil jury trial, including complexity, expert evidence, trial length, legal difficulty, and the availability of a wait-and-see approach.

Although the action involved voluminous documents, anticipated expert scientific evidence, and complex defamation issues, the court held that cogent reasons had not yet been shown to displace the jury.

The preferable course was to permit the trial to begin and reconsider discharge of the jury only if the anticipated complexities materialized to a degree warranting intervention.

Following divided success on two summary judgment motions in a medical malpractice action, the court invited costs submissions.

The plaintiff submitted a 13-page document despite a four-page limit, prompting the court to read only the first four pages.

The court found no reason to depart from its presumptive view that costs should lie where they fall, noting that pre-motion squabbles between lawyers rarely influence costs.

No order as to costs was made.

The defendant dentist brought a motion for summary judgment to dismiss the plaintiff's dental malpractice action on the basis that it was commenced beyond the two-year limitation period.

The court held a mini-trial to determine the issue of discoverability.

The plaintiff argued he only discovered the claim after a consultation with another dentist on June 15, 2010, while the defendant argued the claim was discoverable earlier when the plaintiff sought treatment from other dentists for ongoing issues.

The court found that a reasonable person in the plaintiff's position would have realized the potential negligence by May 20, 2010, when the tooth treated by the defendant was extracted.

As the action was commenced more than two years after this date, the motion was granted and the action dismissed.

The applicant College sought costs following its successful motion and application for permanent injunctive relief against the respondents, who were restrained from holding themselves out as regulators or qualified practitioners of traditional Chinese medicine.

The respondents argued they were advancing a public interest constitutional challenge and lacked the ability to pay.

The court found the respondents were attempting to re-litigate issues already decided against them in a previous Divisional Court proceeding, making public interest costs protection inapplicable.

Applying the principles of proportionality and fairness, the court fixed costs payable to the applicant at $75,000, reduced from the $161,066.96 claimed.

Following a defamation trial where the plaintiff was awarded $10,000 in general damages, both parties sought costs.

The plaintiffs claimed over $417,000 in substantial indemnity costs, while the defendant sought over $165,000 in partial indemnity costs.

The court noted the exorbitant legal fees incurred by both sides, totaling nearly $800,000, and emphasized the principle of proportionality.

Considering the plaintiff's modest success, the failure to move the action to the simplified procedure, and the defendant's mixed success in defending the claims, the court concluded that the outcome was close to a draw.

Consequently, the court ordered that each party bear their own costs.