James E. McNamara

The plaintiff brought a motion for summary judgment in a civil action alleging assault, battery, excessive force, malicious prosecution, and Charter breaches arising from an incident at the Senate of Canada.

The plaintiff relied solely on reasons from a prior criminal trial in which he had been acquitted of charges related to the same incident, arguing that relitigation would constitute an abuse of process under the principles in Toronto (City) v. C.U.P.E., Local 79.

The court held that the defendants had not been parties to the criminal proceeding and had not had the opportunity to defend themselves or advance defences such as parliamentary privilege.

The court found that allowing the defendants to defend the civil claim would not amount to an abuse of process and that genuine issues requiring a trial remained.

The court determined the appropriate scale and quantum of costs following an earlier order that the defendants pay the plaintiffs’ “costs thrown away” after a trial adjournment.

The plaintiffs sought substantial indemnity costs and claimed over $79,000 in counsel time plus law clerk fees, reduced by 30 percent for reusable trial preparation work.

The court held that substantial indemnity costs were not justified because neither a Rule 49 offer to settle nor sanctionable conduct was present.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality, fairness, and reasonableness.

The court fixed partial indemnity costs for counsel at $50,000 plus HST and allowed only disbursements that would need to be incurred again, declining to award law clerk costs at this stage.

Family law trial addressing custody, access, child support, spousal support, and equalization following the breakdown of a short marriage.

The respondent claimed a beneficial interest in a residential property held in the applicant’s name pursuant to a declaration of trust for her mother and alleged the property constituted a matrimonial home or, alternatively, that he was entitled to compensation through unjust enrichment.

The court rejected both arguments, finding the property was an investment owned beneficially by the applicant’s mother and never occupied as a matrimonial home.

The respondent failed to prove financial contributions sufficient to establish deprivation for unjust enrichment.

Sole custody of the child was granted to the applicant with supervised access to the respondent and guideline child support based on the respondent’s income.

Following a trial and partial appeal, the only remaining issue in the action was damages for negligent misrepresentation.

The parties exchanged settlement communications in which the defendant offered to pay $80,000 inclusive of interest and costs in exchange for dismissal of the remaining issues and a full and final release.

The plaintiff accepted the offer but the parties later disagreed about the scope of the release wording.

The court held that settlements normally imply the provision of a release, but the terms must reflect the agreement actually reached.

The court found the plaintiff’s proposed release properly reflected the settlement terms and rejected the defendant’s attempt to broaden the release to include additional discoverable claims.

The defendant brought a motion under rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a Superior Court action as an abuse of process.

The plaintiffs had previously commenced substantially the same claim in Small Claims Court, which was dismissed as abandoned.

Rather than moving to set aside the dismissal, the plaintiffs commenced a new action in the Superior Court seeking the same relief.

The court held that allowing the new action to proceed would constitute a collateral attack on the Small Claims Court order and undermine the administration of justice.

The Superior Court proceeding was therefore stayed.

The applicant father brought an interim motion seeking sole custody of the parties’ children and permission to relocate them to Belleville.

The respondent mother opposed the motion and disputed allegations regarding her mental health and parenting capacity.

The court reviewed jurisprudence governing interim mobility applications, including the reluctance to disrupt the status quo absent pressing reasons or a strong likelihood of success at trial.

Finding significant conflicting evidence regarding the mother’s alleged mental health issues and the children’s expressed preferences, the court held that these matters required viva voce evidence and full evidentiary assessment at trial.

As there were no pressing circumstances justifying immediate relocation or custody change, the motion was dismissed.

The respondent brought motions under s. 17 of the Divorce Act to vary a spousal support order following his retirement from employment with the Royal Canadian Mounted Police.

He argued that the reduction in income after retirement constituted a material change in circumstances.

The court considered the terms of the parties’ separation agreement, which allowed variation upon retirement but did not automatically treat retirement as a material change.

Reviewing the context of the negotiations and the timing of the retirement shortly after the settlement, the court concluded that the retirement was reasonably foreseeable and inconsistent with the parties’ intention to provide ten years of support.

The court therefore held that no material change in circumstances had been established and dismissed the motions.

The appellants appealed a Small Claims Court decision awarding the respondent contractor $9,705.15 for pre-construction services.

The appellants argued they never agreed to pay for the services unless a construction contract was signed, and that the trial judge misapplied the doctrine of quantum meruit.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and concluding that the trial judge correctly applied the test for quantum meruit, as the appellants were enriched by the respondent's services without a juristic reason.

The defendant Ministry moved under rule 21.01(1)(a) of the Rules of Civil Procedure to strike the plaintiff’s statement of claim for failure to provide the Crown with 60 days’ notice under s. 7(1) of the Proceedings Against the Crown Act.

The plaintiff had previously filed a judicial review application and affidavit outlining allegations against the Ministry and later indicated verbally that a civil action would follow.

The court held that the documentation provided sufficient particulars identifying the source of the complaint and communicated a dispute that could reasonably be anticipated to result in litigation.

Contextual verbal communication between counsel could be considered to provide context to the written materials.

The court concluded that the notice requirement had been satisfied and dismissed the motion.

Following a trial in which the plaintiffs obtained declaratory relief confirming that their lot boundaries extended to the water’s edge and that a corporate defendant had no interest in a disputed strip of land, the court addressed a further dispute concerning the scope of a previously awarded costs order.

The plaintiffs sought to extend the costs award beyond the corporate defendant to several individual defendants and a non‑party.

The court found that the litigation and evidentiary record concerned only the dispute between the plaintiffs and the corporate defendant, and that no evidence or argument had been directed at the individual defendants.

Concluding that those individuals were effectively nominal parties and that the litigation was necessitated solely by the corporate defendant’s position, the court declined to impose costs against them.

The costs order was confirmed to apply only against the corporate defendant.

Following a wrongful dismissal trial in which the plaintiff recovered damages against the municipal employer but failed against several individual defendants, the court determined the appropriate costs consequences.

Applying Rule 49.10 of the Rules of Civil Procedure, the plaintiff was awarded partial indemnity costs to the date of his settlement offer and substantial indemnity costs thereafter because the judgment exceeded the offer.

The court assessed reasonable hourly rates for counsel and reduced excessive paralegal time and rates while disallowing law clerk administrative costs.

The successful individual defendants were awarded partial indemnity costs for their defence.

A Sanderson order was granted requiring the municipal defendant to pay the costs of the successful individual defendants given the unusual and confusing factual circumstances that justified joining all defendants in the action.

A former corporate director sought an order requiring the corporation to prepay legal expenses incurred in defending a civil action brought by a shareholder alleging non‑payment of promissory notes and related debt.

The applicant relied on a broad indemnity agreement providing indemnification and advancement of costs incurred by reason of acting as a director or officer.

The court held that, assuming the pleadings to be true, the legal proceedings against the applicant could have arisen from corporate disputes and attempts to force his resignation as chair of the board.

Because the indemnity agreement contemplated advancement of expenses unless bad faith was established and no such finding was made, the applicant was entitled to prepayment of reasonable legal costs subject to later repayment if indemnification was ultimately denied.

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg under the Criminal Code.

The trial judge had found no reasonable suspicion to justify a roadside screening demand under s. 254(2) and concluded the demand was not made forthwith, resulting in exclusion of evidence under s. 24(2) of the Charter.

The appeal court held that the odour of alcohol detected by the officer in the cruiser was sufficient to establish reasonable suspicion and that the four‑minute delay between forming suspicion and making the demand satisfied the “forthwith” requirement.

The trial judge erred in calculating delay from the time of the traffic stop rather than from the formation of reasonable suspicion.

Because the record did not include a final determination on the blood‑alcohol element and was incomplete, the appropriate remedy was a new trial.

The appellant appealed a summary conviction for having care and control of a motor vehicle while his blood alcohol concentration exceeded 80 mg per 100 mL, contrary to the Criminal Code.

The conviction arose after police responded to an anonymous tip, observed the appellant returning from a beer store to his truck with the keys in his possession, and later obtained breath samples well above the legal limit.

The appellant argued the trial judge erred in finding care and control and that his Charter rights under ss. 8 and 9 were violated.

The appeal court held that the trial judge reasonably inferred an intentional course of conduct creating a realistic risk the vehicle would be put in motion and that no unlawful detention or improper grounds for the breath demand were established.

The appeal was dismissed.

An insurer sought a determination whether an insured’s injury constituted an “accident” within the meaning of s. 3(1) of the Statutory Accident Benefits Schedule under the Insurance Act.

The insured tripped over a curb in his residential parking garage after parking his vehicle and exiting it to wash it.

Applying the two-part test from appellate jurisprudence, the court considered whether the incident arose from the use or operation of an automobile and whether that use directly caused the impairment.

The court held that the vehicle was not being used or operated at the time of the incident and that the injury resulted from an intervening act unrelated to the vehicle.

Accordingly, the incident did not constitute an “accident” under the Schedule and the insured was not entitled to statutory accident benefits.

The defendants brought a motion under Rule 21.01 to strike the plaintiff’s action on the basis that it disclosed no reasonable cause of action, that the court lacked jurisdiction because the dispute was academic in nature, and that the Notice of Action was a nullity.

The plaintiff alleged defamation and negligence arising from allegedly false reports made by a fellow student to university protection services and the university’s subsequent publication of those allegations.

The court held that it was not plain and obvious the court lacked jurisdiction, as the claim concerned torts rather than internal academic decisions.

The court further found the defamation claim was arguable on the pleadings and that the Notice of Action sufficiently identified the nature of the claim.

The motion to strike was dismissed and the plaintiff was granted leave to amend the Statement of Claim.

Following a seven‑day civil trial in which the plaintiffs obtained declaratory relief, the court was required to determine the scale and quantum of costs.

The plaintiffs argued that a pre‑trial Offer to Settle triggered Rule 49.10 of the Rules of Civil Procedure and sought partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The court held that the offer did not clearly correspond to the judgment obtained and therefore did not justify elevated costs.

Costs were fixed on a partial indemnity basis, with the court reducing the claimed hours as excessive and applying a regional benchmark of approximately 60 percent of counsel’s actual hourly rates.

Following a motion in a family law proceeding concerning compliance with an equalization payment ordered at trial, the court addressed the issue of costs.

A prior order had directed that a reference be conducted after the respondent’s discharge from bankruptcy to determine the unpaid value of any net equalization payment, but neither party had arranged the reference.

The court ordered that the reference proceed because the determination of the outstanding equalization payment would resolve most issues and clarify which party had been successful.

In the circumstances, the court exercised its discretion to defer the determination of costs until after the reference was completed.

Following a prior motion decision, the court addressed written submissions on costs.

The applicant sought costs of both the motion and an earlier assessment before an Assessment Officer.

The court declined to determine the costs of the earlier assessment, holding that such submissions should have been made to the Assessment Officer who conducted the hearing.

Exercising discretion under s. 131 of the Courts of Justice Act and considering the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court found the applicant entitled to costs of the motion.

Partial indemnity costs of $7,992 plus HST and disbursements were awarded as fair, reasonable, and proportionate.

The applicant brought a motion seeking imputation of income to the respondent, retroactive spousal support, variation of an existing spousal support order, recalculation of equalization, and continuation of medical benefits.

The dispute centred on whether the respondent had failed to pay a previously ordered equalization payment and whether a bankruptcy filing affected that obligation.

The court noted that a prior order required a reference to determine the unpaid equalization amount but that the reference had never been conducted.

Given unresolved factual disputes and credibility issues, the court held that these matters required determination through the ordered reference or mediation.

Interim spousal support and continuation of medical benefits were ordered pending resolution, subject to potential credit if no entitlement ultimately exists.