James E. McNamara

The plaintiffs brought a motion to strike the jury notice and sever their action from a companion action arising from a 2013 motor vehicle accident.

The plaintiffs argued that the case was too complex for a jury and that delay, exacerbated by the COVID-19 pandemic, warranted a judge-alone trial.

The court dismissed the motion to strike the jury notice, finding insufficient evidence of case-specific prejudice or that an earlier trial date would be available for a judge-alone trial.

The court also dismissed the motion for severance, emphasizing the need to avoid a multiplicity of proceedings under section 138 of the Courts of Justice Act and noting common issues between the actions.

The defendant insurer brought two motions: one to be added as a statutory third party under s. 258(14) of the Insurance Act, and another to strike paragraphs in the plaintiff's Amended Statement of Claim seeking declaratory relief regarding the validity of the insurance policy.

The court granted the motion to be added as a statutory third party on consent.

The court dismissed the motion to strike, finding that the plaintiff had a tenable claim for declaratory relief regarding the enforceability of the policy, even without a direct cause of action against the insurer at this stage.

This endorsement addresses the issue of costs following the dismissal of an application.

The respondent, The Kraft Heinz Company, sought substantial indemnity costs, arguing that they had made a more favourable offer to settle and that the applicant, The Corporation of the Township of South Stormont, had been less than fully candid.

The Township conceded costs but disputed the substantial indemnity scale, arguing the offer was not Rule 49 compliant and denying any sanctionable conduct.

The court awarded partial indemnity costs, finding the offer not sufficiently fixed or understandable for Rule 49.10 consequences and no conduct worthy of sanction.

The court also found the time claimed by both sides somewhat excessive and the hourly rates suggested by the respondent's counsel too high for the Ottawa region.

The applicant municipality sought an order to recommence an arbitration and appoint a new arbitrator to resolve a dispute over wastewater treatment costs.

The parties had previously executed Minutes of Settlement that included a specific dispute resolution process for issues arising from data collection.

The court found that the current dispute regarding allegedly flawed data fell squarely within the contemplation of the settlement agreement.

The application was dismissed, and the matter was directed to the specific individual granted exclusive jurisdiction under the settlement.

Following a motion where the defendant was completely successful, the court considered written submissions on costs.

The defendant sought costs based on a prior settlement offer made to the plaintiff.

The court awarded the defendant costs on a partial indemnity scale, noting the matter was not overly complex and the conduct of the parties was not exemplary, fixing costs at $4,268.82 plus HST and disbursements.

The defendant brought a motion for summary judgment to dismiss the plaintiff's civil action, which included claims for vehicle ownership, unjust enrichment, malicious prosecution, and defamation.

The parties had previously resolved their matrimonial dispute in family court, which included an order regarding the vehicle.

The court granted the summary judgment motion, finding that the plaintiff's civil claims were barred by cause of action estoppel under the doctrine of res judicata, as they arose from the same facts and ought to have been litigated in the family proceedings.

The accused was charged with multiple counts of sexual assault, sexual touching, and invitation to sexual touching involving a minor, C.F., and one count of assault on R.F. The court applied the R. v. W.D. credibility framework, finding the complainant C.F.'s testimony credible due to its detail and consistency, supported by admissions made by the accused to R.F. The accused's denials were deemed not credible and inconsistent with other evidence.

The court was convinced beyond a reasonable doubt that the offences occurred.

This motion concerned the application of the six-month limitation period under the Succession Law Reform Act for a dependant's support claim.

The respondent, executor of the deceased's estate, sought a ruling that the application was statute-barred, arguing the limitation period began when the Office of the Public Guardian and Trustee (OPGT) became the applicant's statutory guardian of property.

The applicant, through the OPGT, contended that the limitation period did not run until the OPGT formally acted as litigation guardian after a thorough investigation.

The court dismissed the motion, holding that the limitation period did not run while the applicant was incapable and not represented by a litigation guardian, and that the OPGT's appointment as guardian of property did not automatically make it a litigation guardian for the purpose of commencing the limitation period.

The accused, charged with three counts of first-degree murder, was scheduled for trial in Pembroke.

The case management judge invited submissions on whether the trial should be administratively transferred to another location within the East Region.

The amicus curiae supported a transfer to Ottawa, while the Crown argued the trial should remain in Pembroke.

The Regional Senior Justice held that the court has the administrative authority to transfer a trial within a judicial region in exceptional circumstances relating to the administration of justice and for systemic reasons.

Given the accused's self-represented status, the need for daily transport, intense local media coverage, a small jury pool in Pembroke, and courthouse facility limitations, the court ordered the trial transferred to Ottawa.

Scott John Harquail pleaded guilty to one count of possession of crack cocaine for the purpose of trafficking and three counts of trafficking crack cocaine.

The Crown and defence presented a joint submission for a 30-month (900-day) sentence.

The primary issue was the credit for pre-trial custody, specifically whether additional enhanced credit beyond the standard 1.5:1 ratio was warranted due to harsh conditions, including lockdowns and inadequate medical/dental treatment.

The court accepted the joint submission for the gross sentence and granted an additional 45 days of enhanced credit for the harsh pre-trial conditions, particularly the neglect of a significant dental issue and lack of follow-up for Hepatitis C.

Following the dismissal of the plaintiff's claim and the defendant's counterclaim in a simplified procedure trial, the parties made written submissions on costs.

The plaintiff argued for no costs due to divided success, while the defendant sought elevated costs based on a Rule 49 offer.

The court found the defendant was the successful party as the counterclaim was not pursued.

However, elevated costs were denied because the Rule 49 offer was silent on the counterclaim and potentially out of time.

Applying the principle of proportionality for simplified procedure cases, the court awarded the defendant costs fixed at $15,000 on a reduced partial indemnity basis.

The defendant brought a motion to set aside a noting in default and a default judgment.

The self-represented defendant had attempted to file a Statement of Defence and Notice of Intent to Defend but failed due to procedural errors and a misunderstanding of the court's administrative dismissal process.

The court found the defendant had a plausible excuse for the default, moved promptly upon learning of the judgment, and had an arguable defence on the merits.

The motion was granted, the noting in default and default judgment were set aside, and the defendant was granted leave to file a Statement of Defence.

The applicant brought a motion in the Superior Court of Justice to strike a previously entered guilty plea for sexual assault and related offences.

In support of the motion, the applicant filed an affidavit alleging that former counsel pressured him to plead guilty and provided incorrect advice.

The Crown sought an affidavit from former counsel responding to those allegations, raising a dispute over whether portions of the affidavit were protected by solicitor-client privilege.

The court held that where a client alleges misconduct or breach of duty by counsel, privilege is waived to the extent necessary for counsel to respond fairly.

The impugned paragraphs of the former counsel’s affidavit were found relevant to the allegations and were permitted to remain, subject only to a minor agreed deletion.

The Crown appealed an acquittal on one count of criminal harassment and eight counts of breach of undertaking arising from communications made through a child communication book and a church website post.

The trial judge found the Crown had not proven beyond a reasonable doubt that the complainant experienced reasonable fear, and also accepted the accused’s evidence that he honestly believed the undertaking did not prohibit use of the communication book used for child-related communication.

On appeal, the Crown argued the trial judge improperly relied on the absence of prior consistent statements and erred in assessing the mens rea for breach of undertaking.

The Superior Court held that the trial judge properly assessed the evidence and credibility, and that his findings regarding reasonable fear and honest belief were open on the evidence and entitled to deference.

No error of law was established.

The plaintiff contractor brought an action for damages alleging breach of contract or, alternatively, negligent misrepresentation arising from negotiations to renovate premises for a fitness franchise.

The plaintiff argued that the parties reached a binding agreement through meetings, draft contracts, and text messages indicating work would commence, despite the absence of a signed contract.

The defendant maintained there was never a clear acceptance of the plaintiff’s proposal and that negotiations remained conditional on financing, lease arrangements, and other unresolved terms.

The court held the plaintiff failed to establish a meeting of the minds or acceptance of the offer and found no evidence of misleading representations.

The action and the defendant’s counterclaim were both dismissed.

The plaintiffs brought a civil action in negligence against the defendant police officers following the fatal shooting of their family member.

The deceased, who was intoxicated and armed with knives, advanced aggressively toward an officer and refused commands to drop the weapons.

The court found that the officers acted reasonably and within the standard of care expected in such dangerous and rapidly unfolding circumstances.

The action was dismissed, though damages were assessed at $100,000 under the Family Law Act in the event of an appeal.

This was a construction dispute arising from an oral profit-sharing arrangement under which the plaintiff provided project management and site supervision services on several commercial projects in exchange for 30% of net profit.

The court resolved disputed factual issues concerning project cost calculations, treatment of superintendent wages, personal charges, and allegedly improper extras billed to owners.

For the Shoppers Drug Mart and Gardiners Road projects, the court directed the parties to recalculate compensation using the agreed formula and the court's findings.

For the Wolfe Springs and The Edward projects, the court held that neither side proved entitlement to compensation or damages, finding in relation to The Edward that both sides bore responsibility for the absence of profit.

The insured applied for a declaration that his automobile insurer owed him a defence and indemnity after denying coverage on the basis that he permitted an unauthorized driver to operate his vehicle contrary to statutory condition 4(1) under O. Reg. 777/93 and the Ontario Automobile Policy.

The driver, the insured’s girlfriend, possessed only a G1 licence and was involved in a collision while driving alone on a 400‑series highway.

The court held that the proper test was whether the insured took reasonable and prudent precautions to ensure the statutory condition was not contravened.

Given that the insured had seen the driver produce a licence for identification and had previously ridden with her while she drove, and given the visual similarity between G1 and full licences, the insured acted reasonably and was not wilfully blind.

The insurer therefore remained obligated to provide defence and indemnity.

The applicant sought interim shared custody of a young child, while the respondent opposed the request.

The court held that shared custody was not in the child’s best interests on the interim record but ordered expanded access including periodic overnight parenting time.

The court also ordered the applicant to pay guideline child support and interim spousal support after considering the parties’ incomes, including questions surrounding the respondent’s potential rental income from property abroad.

The interim parenting arrangement was set to operate for three months to assess its effectiveness.

The applicant husband brought a motion seeking interim spousal support following a long-term marriage.

The parties had been married since 1976 and separated in 2009.

The husband alleged dramatically reduced business income due to declining work and heart-related medical limitations, while the respondent argued he had greater earning capacity and was understating income.

The court noted that interim support determinations aim to achieve "rough justice" and cannot resolve factual disputes that must be determined at trial.

Considering the parties’ financial circumstances and the applicant’s health limitations, the court ordered interim spousal support of $850 per month, with costs reserved to the trial judge.