James A. S. Wilcox

The court determined costs following dismissal of a motion seeking removal of plaintiffs’ counsel due to an alleged conflict of interest.

Applying s. 131(1) of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court exercised its discretion to award costs to the plaintiffs as the successful parties.

Although the motion raised a potentially significant issue regarding counsel’s role, the court found delay in bringing the motion and concerns suggesting it may have been brought for tactical reasons.

The amount sought by the plaintiffs was considered excessive for the scope and complexity of the motion.

Costs were fixed at a reduced amount payable by the defendant.

The applicant mining company brought a motion to strike portions of a respondent’s affidavit and factum on the basis that they disclosed communications made during settlement negotiations.

The court considered the principles governing settlement privilege as articulated by the Supreme Court of Canada and the conditions required for the privilege to arise.

It found that a litigious dispute existed or was contemplated at the time of the communications, the communications were made with an implied intention of confidentiality, and their purpose was to attempt settlement of the dispute.

As no competing public interest justified disclosure, the communications were protected by settlement privilege.

The court ordered that the impugned passages and documents be struck or expunged from the responding materials.

The defendant brought a motion seeking to remove the plaintiffs’ solicitor of record on the basis of an alleged conflict of interest arising from the solicitor’s prior representation of the defendant in a property purchase.

Applying the test from MacDonald Estate v. Martin, the court considered whether the lawyer had received confidential information relevant to the current litigation and whether there was a risk that such information could be used to the defendant’s prejudice.

The court found that any information obtained during the earlier retainer was outdated, minimal, and largely discoverable through ordinary litigation processes.

The court also noted that the defendant delayed bringing the motion until shortly after service of a summary judgment motion, suggesting a tactical motive.

Balancing the integrity of the profession with the plaintiffs’ right to counsel of choice, the court declined to disqualify counsel.

The accused, charged with sexual assault and sexual interference, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a breach of her s. 11(b) right to be tried within a reasonable time.

The court analyzed the 891-day period between arrest and the scheduled trial date.

After deducting delay attributable to the defence and inherent time requirements, the remaining delay was approximately 11 months, which fell well within the 14 to 18-month guideline established in Morin.

Finding no actual prejudice linked to the delay, the court dismissed the application.

Competing applications were brought under s. 380 of the Municipal Act for payment out of surplus funds paid into court following a municipal tax sale.

A second mortgagee sought payment of the funds based on priority of encumbrances, while subsequent encumbrancers alleged improper dealings with the property and inadequate accounting during prior mortgage enforcement.

The court held that speculative allegations regarding earlier mortgage transactions and tax sale circumstances could not be adjudicated within the limited scope of a s. 380 application.

Finding that the mortgage debt owed to the second mortgagee exceeded the funds in court and that no proof supported the competing claims, the court ordered payment out of the funds to the second mortgagee according to legal priority.

The plaintiffs brought a motion for default judgment after the defendants’ statement of defence was struck and the defendants were noted in default.

The action arose from the purchase of a farm property where the plaintiffs alleged negligent misrepresentation, active concealment of defects, and breach of contract relating to deficiencies including septic failure, mold, unsafe well water, infertile soil, and misrepresented acreage.

Under Rule 25.07(2) of the Rules of Civil Procedure, the defendants were deemed to admit the facts pleaded, leaving damages as the remaining issue.

Based on affidavit evidence, the court assessed damages for loss of property value, remediation expenses, labour, and loss of use and enjoyment.

Aggravated damages were refused, and judgment was granted with costs.

Following dismissal of an appeal from an interim child protection order of the Ontario Court of Justice, the court addressed costs.

Applying s. 131 of the Courts of Justice Act and Family Law Rule 24, the court noted the presumption that the successful party is entitled to costs.

The court found the appellant’s conduct unreasonable, including pursuing an unnecessary appeal of an interim procedural order, filing extensive irrelevant materials, and causing delay in the underlying child protection proceedings.

Considering the importance of child placement issues and the need to discourage litigation conduct that interferes with timely resolution, the court awarded substantial indemnity costs to the respondent child protection agency.

The Crown appealed a trial decision that stayed a charge of operating a motor vehicle with blood alcohol exceeding 80 mg based on an alleged s. 9 Charter breach arising from prolonged detention after breath testing.

The appeal court held that the trial judge’s reasons for finding an overholding were sufficient and disclosed no reversible error.

However, the trial judge erred by ordering a stay of proceedings without articulating reasons or applying the governing legal framework for such an exceptional remedy.

The court concluded the breach occurred post‑offence, had no connection to the gathering of evidence, and caused minimal prejudice.

The stay was therefore set aside and a conviction entered, with a reduced fine imposed as a remedy for the Charter breach.

Following a successful summary judgment motion dismissing a civil action, the defendant sought costs for both the motion and the action.

The court considered s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, emphasizing the principles of indemnification, encouragement of settlement, and deterrence of improper litigation conduct.

The plaintiff, who was self-represented, challenged aspects of the claimed costs but did not provide persuasive grounds to reduce them.

The court found the claimed fees modest given the complexity and seriousness of the allegations, which included claims of misconduct by a police officer and damages of $1,000,000.

Costs were awarded to the defendant on a partial indemnity basis.

Following a motion to strike a statement of claim or dismiss or stay the action on the basis that it disclosed no reasonable cause of action and was frivolous or vexatious, the parties reached a consent resolution during the hearing whereby the plaintiff agreed to produce an amended statement of claim.

Both sides subsequently sought costs of the motion.

The court noted that the dispute arose partly because correspondence requesting particulars had not been received and that the matter could likely have been resolved without court proceedings had counsel communicated more effectively.

Given the mixed outcome and avoidable litigation steps, the court held that each side should bear its own costs.

Following a family law trial where a separation agreement was set aside in full, the court determined the issue of costs.

The successful party sought costs after prevailing on the issue of whether the agreement should be invalidated.

Applying s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court reiterated the presumption that the successful party is entitled to costs and considered the importance of the issues, the parties’ conduct, and the reasonableness of the legal fees.

The court found the responding party’s conduct unreasonable for forcing the matter to trial and failing to meaningfully engage in resolving the dispute.

Partial indemnity costs of $11,000 inclusive of fees, disbursements, and taxes were ordered.

The appellant mother appealed an interim interim order made by the Ontario Court of Justice in a child protection proceeding.

The child had been apprehended by the agency and placed with her father under supervision.

The appellant was not present at the initial hearing.

The Superior Court of Justice dismissed the appeal, finding no appealable error in the lower court's decision to adjourn the matter and make a temporary order for the child's care and custody while ordering the involvement of the Office of the Children's Lawyer.

Following a prior decision granting the defendants’ motion to enforce a settlement agreement, the court considered costs.

The defendants sought substantial indemnity costs from the date the settlement was accepted, arguing the subsequent litigation resulted solely from the plaintiff’s refusal to honour the settlement.

The court applied s.131 of the Courts of Justice Act and rr. 49.10 and 57.01 of the Rules of Civil Procedure.

Substantial indemnity costs were found appropriate, though the court reduced counsel’s hourly rate and excluded time relating to proceedings where no costs had been awarded.

Costs were fixed at $15,960.63 payable by the plaintiff.

Following a successful motion for summary judgment dismissing the plaintiff’s claim, the defendants sought costs.

The plaintiff’s written costs submissions were filed out of time and were not considered by the court.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that costs should follow the event.

The court accepted the defendants’ reduced request for partial indemnity costs and noted that the proceeding had been ill-advised, unduly prolonged, and at times conducted in an abusive fashion.

Costs were awarded to the defendants in the amount of $55,662.16.

The applicant brought an application under the Inter-Jurisdictional Support Orders Act seeking a child support order against a respondent residing in Quebec.

The court reviewed the materials filed in support of a provisional order and identified several deficiencies, including reliance on incorrect statutory provisions, failure to highlight relevant sections, use of Ontario child support tables instead of the Quebec tables, insufficient evidence of the respondent’s income, and inadequate documentation supporting claimed special or extraordinary expenses.

The court emphasized that provisional ISOA orders made without notice must be supported by clear and complete evidence to avoid rejection by the confirming jurisdiction.

As the materials were incomplete and unclear, the application was dismissed without prejudice to refiling.

The plaintiff sued the OPP and an investigating officer for negligent investigation and Charter breaches after being investigated for allegedly defrauding an elderly woman and the Ontario Disability Support Program.

The police concluded there were no grounds for criminal charges but shared information with other agencies.

The defendants moved for summary judgment.

The court granted the motion and dismissed the action, finding the investigation met the standard of a reasonable police officer and the plaintiff failed to prove any compensable damages or genuine issue requiring a trial.

The defendants brought a motion under Rule 49.09 to enforce a settlement agreement allegedly reached via correspondence between counsel.

The plaintiff argued that while it agreed to dismiss the action, it never agreed to discharge the mortgages on the commercial properties it had sold to the defendants.

The court found that, viewed objectively, the plaintiff's offer to dismiss the action reasonably included giving up its mortgage remedies, and the defendants' acceptance created a binding contract.

The court exercised its discretion to enforce the settlement, noting that allowing the litigation to continue would prejudice the defendants due to significant delay and lost evidence.

The action and counterclaim were dismissed, and the mortgages ordered discharged.

The defendant brought a motion seeking to set aside a noting of default after failing to deliver a statement of defence in time.

The court applied the factors governing the exercise of discretion under Rule 19 of the Rules of Civil Procedure, including intention to defend, explanation for delay, promptness of the motion, and prejudice to the plaintiff.

The court found credible evidence that the defendant intended to defend the claim, noting the earlier filing of a Notice of Intent to Defend and subsequent efforts to retain counsel.

Although the explanation for delay in retaining counsel lacked detail, the court held the delay was not inordinate and the motion was brought with reasonable dispatch.

As no prejudice to the plaintiff was demonstrated, the court set aside the noting of default.

A dispute arose from a homemade commercial farm lease containing inconsistent provisions regarding the lease term.

The tenants sought declarations regarding the lease term, access to the property, and injunctions relating to interference with their farming operations, while the landlords counter‑applied for a declaration that the lease had ended or was properly terminated for cause.

The court applied principles of contractual interpretation, including the dominant purpose of the agreement and consideration of surrounding circumstances, to resolve ambiguity between a clause stating a two‑year term and another describing the lease as a “one year lease.” The court concluded that the lease term ran from December 1, 2011 to November 1, 2013.

However, the tenants’ deliberate non‑payment of rent for several months constituted a breach entitling the landlords to terminate the lease, and the tenants were ordered to pay arrears and vacate the premises within a defined period.

The accused applied to exclude a police statement under s. 24(2) of the Charter, alleging breaches of ss. 7, 10(a), 10(b), and 11(c), and alternatively arguing the statement was involuntary.

During a police interview concerning historical sexual offences, the accused—who had documented intellectual limitations—was initially allowed to contact duty counsel but was not properly informed of the reasons for detention or the extent of his jeopardy.

The court found that the accused was effectively detained once he began making incriminating admissions but was not advised of his detention or given a renewed opportunity to consult counsel.

Police also persisted in questioning after the accused expressed reluctance to continue, undermining his right to silence.

The court concluded the statement was not voluntary and that Charter breaches occurred, rendering the statement inadmissible.