Irving W. André

Following an earlier ruling converting an application into an action due to material factual disputes and an incomplete evidentiary record, the court addressed costs.

The successful responding party sought substantial or full indemnity costs exceeding $37,000, arguing the proceeding had been unnecessary.

The court applied the factors under Rule 57.01 of the Rules of Civil Procedure and found the claimed costs excessive in light of the relatively straightforward issues and inflated hourly charges and time entries by junior counsel.

While the successful party was entitled to costs, the court reduced the requested amount significantly and declined to award any costs to the unsuccessful party.

Costs were fixed at a reduced sum payable by the unsuccessful party.

The respondent brought a motion seeking to convert an application into an action under Rule 14.02 of the Rules of Civil Procedure.

The underlying application sought enforcement of a loan agreement and registration of a second mortgage against property.

The moving party argued that material facts were in dispute regarding the validity of the loan agreement, alleged misrepresentations, authority of corporate signatories, and the amount of indebtedness.

The court held that the evidentiary record contained significant conflicts and was incomplete, including missing evidence from key signatories and allegations that required viva voce evidence.

Because the issues could not be properly determined on the application record alone, the court ordered the application converted into an action.

The accused was charged with importing cocaine after arriving at Toronto Pearson International Airport carrying 80 pellets of cocaine internally.

At trial, the accused testified that he had been kidnapped in St. Lucia and forced at gunpoint to swallow and insert the drug pellets, raising the defence of duress.

The court reviewed the elements of the common law defence of duress, including the requirement of a threat, reasonable belief in its execution, absence of a safe avenue of escape, and proportionality.

The judge rejected the accused’s testimony as inconsistent and implausible, finding multiple opportunities existed to seek help from authorities or airline personnel.

Concluding that the explanation of coercion was not credible and did not raise a reasonable doubt, the court inferred that the drugs were ingested voluntarily and intentionally imported into Canada.

The offender was convicted of defrauding a fellow church member of $23,643 under the guise of an investment scheme.

The Crown sought a 90-day jail sentence, while the defence requested a conditional discharge.

The court emphasized the planning involved, the vulnerability of the victim, and the lack of recovery or remorse.

The offender was sentenced to 45 days of intermittent custody, followed by 18 months of probation, and ordered to pay full restitution.

The accused was charged with stabbing the complainant during an altercation at a public picnic in a park.

The Crown alleged the accused approached the complainant from behind during a brief verbal exchange and stabbed him with scissors, causing severe injuries requiring removal of the complainant’s spleen.

The accused testified that the complainant produced the scissors first and that the stabbing occurred accidentally during a struggle in self-defence.

Applying the credibility framework in R. v. (W.D.), the court rejected the accused’s evidence due to internal inconsistencies, post-offence conduct, and false statements to police.

The court accepted the complainant’s evidence, supported in part by other witnesses and surrounding circumstances, and concluded the Crown proved the offence beyond a reasonable doubt.

The accused was charged with fraud after the complainant gave her $23,643 for investment purposes.

The Crown alleged the accused falsely represented that her company was affiliated with an established financial group and guaranteed the initial deposit against loss.

The court found that the accused intentionally misled the complainant, deposited the funds into her own account, and immediately withdrew the money without investing it.

The accused was found guilty of fraud.

The plaintiff landlord sued the tenant and guarantor for unpaid rent after the defendants vacated leased commercial premises before the lease term expired.

The defendants alleged they were induced to enter the lease by negligent misrepresentations regarding the presence of physicians in the building and the expected volume of patient referrals.

Applying the principles for negligent misrepresentation from Queen v. Cognos, the court held that no actionable misrepresentation was established and that the alleged statements were either unproven, not relied upon, or constituted expectations rather than guarantees.

The court also noted that the written lease contained an entire agreement clause negating extraneous representations.

The defendants voluntarily assumed the business risk and the landlord had taken reasonable steps to mitigate damages.

Judgment was granted for the plaintiff for the outstanding rent and interest.

The appellant appealed a trial judgment holding him personally liable for a $24,824.50 balance on a corporate credit card.

He argued that the absence of a signed credit card agreement precluded personal liability, and that the trial judge erred by allowing the respondent to reopen its case to call him as a witness.

The Divisional Court dismissed the appeal, finding that circumstantial evidence of the appellant activating and using the card was sufficient to establish liability under the terms of the agreement.

The court also held that the trial judge properly exercised his discretion in allowing the respondent to reopen its case and that there was no reasonable apprehension of bias.

The accused brought a pre-trial application seeking to allow collateral attack on Employment Standards Act orders, alternatively seeking a stay of proceedings for abuse of process, and alternatively seeking a declaration that certain sections of the Employment Standards Act were unconstitutional.

The accused had been charged with failing to comply with orders to pay outstanding wages to employees.

The accused argued he was impecunious and unable to meet the statutory requirement to pay or post a letter of credit to appeal the orders.

The court rejected all three applications, finding that the rule against collateral attack applied, that no abuse of process had occurred, and that the relevant statutory provisions did not violate the Charter.