Howard C. Cohen

This is a costs decision following a summary trial in which the plaintiff's action for 50 percent of the defendant's $301,000 casino jackpot winnings was dismissed.

The action was based on alleged breach of an oral contract, breach of trust, and unjust enrichment.

The defendant sought substantial indemnity costs of $79,750.65, while the plaintiff argued for a reduced award of $25,000.

The court awarded the defendant $40,773.84 in costs, considering factors including the nature of the dispute, the use of two counsel, conduct issues involving a witness, and the principle that costs awards should be fair and reasonable rather than blindly reflecting actual costs incurred.

The accused, Paul Greenberg, was charged with dangerous operation of a motor vehicle after a collision on the Don Valley Parkway.

The Crown relied on dash-camera footage and police testimony, while the accused testified in his defence, claiming he was driving marginally above the speed limit and was cut off by another vehicle.

The court rejected the accused's characterization of his speed and driving, finding that he drove at an excessive speed, repeatedly overtook vehicles by changing lanes, and failed to adjust his driving despite the presence of another speeding vehicle.

The court concluded that his driving constituted a marked departure from the standard of a reasonably prudent driver and endangered the public, leading to a conviction.

The applicant, charged with dangerous driving, brought a Garofoli/Charter application to exclude evidence seized from his dash-camera and EDR, alleging a violation of s. 8 of the Charter.

The challenge focused on the facial and sub-facial validity of the search warrant.

The court found that while a dash-camera may attract a reasonable expectation of privacy, the warrant was validly issued based on sufficient grounds regarding the applicant's dangerous driving preceding the collision.

The court also found no material non-disclosure or bad faith by the police.

The application to exclude evidence was dismissed.

The accused, charged with dangerous driving, brought a motion seeking leave to cross-examine the affiant and sub-affiants of the Information to Obtain (ITO) a search warrant.

The warrant was used to seize and analyze dash cam and Event Data Recorder (EDR) data from his vehicle following a collision.

The accused intended to challenge the sub-facial validity of the warrant, alleging a violation of section 8 of the Charter due to material omissions and ambiguities in the ITO regarding the collision's circumstances, including the potential involvement of a third vehicle and the basis for inferring dangerous driving.

The court granted leave to cross-examine, finding a reasonable likelihood that such examination would elicit testimony tending to discredit the existence of reasonable and probable grounds for the warrant.

Steve Williams was charged with sexual assault and procuring his stepdaughter's friend, KC, who was 16-17 years old at the time.

The sexual assault allegation involved a brief touch to KC's vagina.

The procuring charge stemmed from a series of text messages where Williams offered money for sexual services from KC and/or a "friend." Williams claimed the texts were an elaborate "prank." The court found Williams not credible regarding both charges.

While the court accepted KC's testimony about Williams' request to see her vagina, it found reasonable doubt regarding the intentional application of force for the sexual assault charge due to conflicting evidence on touching.

For the procuring charge, the court found Williams had the intent to procure KC but determined that the actus reus (the act itself) was not met because KC never actually offered or provided sexual services, interpreting the relevant section of the Criminal Code to require such an act.

Consequently, Williams was acquitted on both counts.

This is a costs endorsement following a motion where the Plaintiff successfully sought to stay a related fraudulent conveyance action.

The Plaintiff sought substantial indemnity costs, arguing the Defendant's position was weak and that a reasonable offer to settle was made.

The Defendant sought to defer costs or have them dismissed.

The court declined to defer costs, finding the Plaintiff successful on the motion.

It awarded partial indemnity costs of $9,000.00 to the Plaintiff, determining that while the Plaintiff's offer was reasonable, it did not trigger Rule 49 consequences, and the Defendant's conduct, though based on a tenuous argument, was not abusive or egregious enough to warrant substantial indemnity.

This decision addresses the costs of a motion for a Mareva injunction.

The Plaintiff had brought a second Mareva injunction motion, which was largely resolved on an uncontested basis.

The parties disagreed on whether the resulting order was on consent and who should bear the costs.

The Plaintiff sought substantial indemnity costs, while the Defendant sought costs against the Plaintiff, including personally against his counsel, alleging improper transfers of funds.

The court found the Defendant to be the successful party on the motion, though with mixed success, and awarded her $7,500.00 in partial indemnity costs from the Plaintiff.

The court declined to order costs against the Plaintiff's counsel personally, emphasizing the high threshold for such awards.

The court fixed costs for a successful motion to strike brought by the plaintiff.

The defendant sought full indemnity costs, but the court limited the award to partial indemnity, finding no conduct warranting enhanced costs.

Considering the motion's simplicity, discrete issues, and some duplication in counsel's work, the court awarded the amount the plaintiff was prepared to pay, $3,606.50, as reasonable partial indemnity costs.

The court fixed costs for a pre-discovery document production motion in a case-managed proceeding.

The defendant, who sought additional document production, was deemed the more successful party, though not entirely successful.

The plaintiff's unreasonable positions regarding document relevance and production obligations were found to have lengthened the motion.

The court rejected the plaintiff's arguments against a costs award based on the informal, letter-based process or the defendant's prior unpaid costs orders.

Partial indemnity costs of $1,000.00 were awarded to the defendant, with the possibility of set-off against any costs owed by the defendant to the plaintiff.

The accused, Ferenc Feher, applied to the Superior Court of Justice for a review of a detention order issued by the Ontario Court of Justice.

The original detention was based on secondary grounds due to an inadequate release plan and concerns about proposed sureties.

On review, the court considered a new proposed release plan featuring an additional residential surety and a plan for daily employment.

The court was satisfied that the revised plan adequately addressed the secondary ground concerns, leading to the overturning of the detention order.

The accused was released on terms, including three sureties pledging a total of $25,000 without deposit, continuous supervision, non-contact orders, and prohibitions on possessing firearms.

Intact Insurance Company moved for summary judgment to dismiss an action brought by J.P. Towing Service & Storage Ltd. concerning towing and storage fees.

J.P. Towing cross-moved for various declarations and consolidation.

The court dismissed Intact's motion, finding that while most of J.P. Towing's claims (vexatious litigant, prohibitive order, consolidation, and monetary/punitive damages) were not viable, its claim for a declaration that the daily storage rate of $70.00, as determined in a prior Small Claims Court decision (Sherwood), was res judicata against Intact, was valid.

The court allowed J.P. Towing's cross-motion and granted summary judgment on this specific declaration, holding that Intact was bound by the Sherwood decision regarding the daily storage rate when acting on behalf of its insureds.

The Bernstein Defendants brought a motion seeking to dismiss the crossclaim of Norma Walton and Ronauld Walton (the "Waltons") for damages due to their failure to pay a $32,000 costs award.

Alternatively, they sought to stay the crossclaim until costs were paid and the Waltons posted $200,000 security for costs.

The court ordered the Waltons to pay the outstanding $32,000 costs plus an additional $12,000 for the current motion within 60 days, failing which their crossclaim for damages would be dismissed.

If these costs were paid, the Waltons were then required to post $200,000 security for costs for their damages crossclaim within another 60 days, failing which it would also be dismissed.

The Waltons' claims for contribution and indemnity were permitted to proceed irrespective of these conditions.

The appellant, Daniel Raymond Lavigne, appealed his conviction for failing to provide a breath sample and his sentence.

The trial judge found an 8-minute delay in demanding a breath sample was justified for officer safety and investigation, satisfying the "forthwith" requirement under s. 254(2)(b) of the Criminal Code.

The appeal court upheld the conviction, finding no reviewable error in the trial judge's factual findings or application of the law.

The court declined to hear the appeal from sentence, noting it was not properly advanced in the appellant's factum or oral arguments.

The defendant brought a motion for summary judgment seeking to dismiss the plaintiff's claims of defamation and libel.

The defendant argued that the statements were true, protected by qualified privilege or fair comment, and that the libel claim was barred due to lack of proper notice.

The court dismissed the motion, finding that there were genuine issues requiring a trial, particularly concerning the truth of the allegations and the presence of malice, which necessitated credibility assessments.

The court also determined that the lack of specific notice for the libel claim was not an absolute bar given the circumstances where the defendant's identity was initially unknown and the publisher promptly retracted the advertisement.

The Crown applied for a pre-trial ruling on the voluntariness of statements made by the defendant, C.C., during a police interview concerning charges of sexual assault and sexual interference.

The defence sought to exclude statements made after C.C.'s arrest, arguing they were involuntary due to emotional, physical, and psychological condition, oppressive questioning, and inducements.

The court found no evidence that C.C.'s will was overborne, noting his consistent reliance on the right to silence regarding the allegations, the non-oppressive nature of the interview, and the absence of a "quid pro quo" inducement.

The court ruled the statements were voluntarily made and admissible.

Following a finding of civil fraud against the respondents, the applicants sought costs on a substantial indemnity basis.

The court awarded the applicants $550,832.92 in substantial indemnity costs due to the respondents' frivolous counter-application, concealment of information, and failure to deliver financial information.

The court also resolved costs claims from other involved parties, awarding various amounts on partial and substantial indemnity scales based on their respective offers to settle and participation in the proceedings.

The applicants, Dr. Bernstein's corporations, moved for judgment against Norma Walton, Ronauld Walton, and their companies for $66.9 million, alleging civil fraud and fraudulent misrepresentation, and sought a declaration that the debt would survive bankruptcy.

The Waltons brought a counter-application for damages and a cross-motion for a trial on the fraud issue.

Christine DeJong Medicine Professional Corporation and Gideon and Irene Levytam also sought relief regarding their investments.

The court found the Waltons liable for civil fraud and fraudulent misrepresentation, awarding the applicants $66.9 million plus interest, and declared the debt non-dischargeable in bankruptcy under s. 178(1)(d) and (e) of the BIA.

The Waltons' counter-application was struck as frivolous and vexatious.

The applicants' claims against Schedule C Companies for knowing assistance and knowing receipt were dismissed.

DeJong was granted constructive trusts over specific Schedule C properties for their investments due to the Waltons' breach of fiduciary duties.

The appellant appealed his convictions and sentences for sexual interference and invitation to sexual touching involving an 11-year-old complainant.

The appellant argued the trial judge misapplied the W.(D.) framework, misapprehended evidence, rendered an unreasonable verdict, provided insufficient reasons, and imposed a harsh sentence.

The summary conviction appeal judge dismissed all grounds of appeal, finding no error in the trial judge's credibility assessments or application of legal principles.

The consecutive sentences totaling ten months were upheld as fit, considering the totality principle and the aggravating factor of the victim's age.

A ruling on the voluntariness of a statement made by an accused charged with sexual offences against a child.

The accused was interviewed by police for approximately three hours following his arrest.

The Crown sought to admit the entire statement at trial, while the defence argued that portions of the statement were involuntary due to police inducements and the use of coercive interrogation techniques.

The court found that the initial portion of the statement was voluntary but excluded statements made after the police officer presented the accused with a stark choice between admitting to a one-time mistake or being investigated as a serial predator, which constituted a quid pro quo inducement that overbore the accused's will.

A youth was charged with invitation to sexual touching contrary to s. 152 of the Criminal Code and committing an indecent act by exposing his genital organs to a person under the age of 16 years contrary to s. 173(2) of the Criminal Code.

The allegations arose from incidents that occurred when the complainant was between two and five years old while attending an unlicensed daycare operated by the accused's mother.

The complainant did not disclose the incidents until Grade 5, when prompted by a classroom discussion about inappropriate sexual touching.

The trial judge found the complainant's testimony credible and reliable, and rejected the accused's denials as marked by inconsistencies and implausibilities.

The accused was convicted on both counts.