Jamie K. Trimble

This endorsement addresses the costs arising from a successful summary judgment motion by the defendants against the self-represented plaintiff.

The defendants sought $35,359.11 in costs, comprising partial indemnity until their offer to settle and substantial indemnity thereafter.

The court, while noting the defendants' offer was not Rule 49 compliant, exercised its discretion under Rule 57 and Rule 49 to award substantial indemnity costs from the date of the offer due to the plaintiff's unacceptable conduct, bad faith dealings, and persistent disregard for court rules despite extensive litigation experience.

The court ultimately awarded the defendants $25,000 in all-inclusive costs.

A non-party mortgagee brought a motion to discharge a Certificate of Pending Litigation (CPL) and a consent judgment from the title of a property it had sold under power of sale.

The plaintiffs, who were creditors of the mortgagor, opposed the motion, arguing the sale was improvident.

The court granted the motion, holding that the mortgagor's equity of redemption was extinguished upon the completion of the power of sale.

As the plaintiffs had no greater interest in the land than the mortgagor, and an action for improvident sale sounds in damages rather than an interest in land, the CPL and judgment could not be maintained on title.

The court considered whether the accused's email communications constituted an agreement or arrangement, by telecommunication, to commit sexual interference with a child under s. 172.2(1)(b) of the Criminal Code.

Applying the framework drawn from Legare, the court held that the communications went beyond fantasy or a preliminary meeting and established a concrete plan to sexually assault a child the accused believed to be nine years old.

The court rejected arguments that the copied email record was too incomplete to support conviction and also rejected the submission that the accused lacked knowledge of the child's age.

A finding of guilt was entered on the sole count.

The mother and litigation guardian of two minor plaintiffs brought a motion for approval of a tort settlement arising from a motor vehicle accident.

The court reviewed the contingency fee agreement between the litigation guardian and the plaintiffs' solicitor.

The court found the agreement to be confusing, inconsistent, and therefore unfair at the time it was entered into.

Furthermore, the court found the fees calculated under the agreement to be unreasonable given the straightforward nature of the case and the lack of liability risk.

The court reduced the solicitor's fees to $2,500 per minor claimant and approved the net settlement amounts to be paid to the litigation guardian.

The plaintiffs sought to maintain a Mareva injunction against the defendant's property after an ex parte order was granted.

The defendant had failed to close an agreement of purchase and sale for the plaintiffs' home, and the plaintiffs alleged a risk of asset flight.

The court conducted a de novo hearing, finding a strong prima facie case for the plaintiffs and a real risk of asset removal due to inconsistencies in the defendant's travel plans and financial explanations.

The Mareva injunction was maintained, allowing the plaintiffs to register a charge against the defendant's property, which could be lifted upon the defendant posting security of $116,324.32.

The father brought a motion under the Hague Convention for the return of the parties' two children to Tennessee after the mother unilaterally removed them to Ontario.

The mother opposed the motion, arguing the children had no habitual residence and raising an Article 13(b) defence based on allegations of domestic violence.

The court found that the children's habitual residence was Tennessee, as the family had a settled intention to live there.

The court dismissed the mother's Article 13(b) defence, finding she failed to establish a grave risk of harm or that Tennessee authorities were incapable of protecting the children.

The motion for the return of the children was granted.

The plaintiff, a rap artist, sued a radio host and broadcaster for copyright infringement, theft, and negligence after they played an 18-second clip of his song during an interview.

The defendants brought a motion for summary judgment.

The court granted the motion, finding that the defendants had complied with the Copyright Act by paying the required SOCAN royalties, precluding any claim for infringement or theft.

The court also dismissed the negligence claim for lack of evidence of damages and found that, in any event, the parties had previously reached a binding settlement agreement via email.

The Children's Aid Society brought a motion to dismiss the mother's appeal for delay.

The mother had appealed a summary judgment order that granted custody of the children to the father and limited her to supervised access.

Applying the test for dismissing an appeal for delay, the court found that while the delay was not inordinate, the mother failed to demonstrate that her appeal had arguable merit.

The court also considered the children's best interests, emphasizing the need for stability and finality.

The motion was granted and the appeal was dismissed.

Following a successful appeal, the appellant sought costs for the motion appealed from and the related motion for leave to appeal.

The Divisional Court declined to award costs for the leave motion because the judge granting leave did not address costs in their order or reasons.

However, the court awarded the appellant costs of $12,500 for the attendance before the motion judge, finding it fair and reasonable that costs follow the event in the appeal.

The applicant municipality brought an application for a declaration that the respondent Ombudsman lacked jurisdiction to investigate its Election Compliance Audit Committee and Property Standards Committee for alleged violations of open meeting requirements.

The Divisional Court held that neither committee falls within the definition of a 'local board' under the Municipal Act, as they are independent adjudicative bodies whose purposes are inconsistent with a municipality's power to dissolve a local board.

The Court granted a declaration that the Ombudsman has no jurisdiction to investigate these committees, but declined to grant a broader declaration regarding all quasi-judicial tribunals or to quash the Ombudsman's non-binding report.

Following a jury trial for a motor vehicle accident where the plaintiff was awarded $7,500 in general damages, the defendants brought a threshold motion.

The court first determined that the threshold motion was moot because the jury's award would be entirely eliminated by the statutory deductible under the Insurance Act, resulting in a net recovery of $0.

In the alternative, the court analyzed the medical evidence and found the plaintiff's credibility to be poor due to significant omissions in her medical history regarding pre-existing conditions like fibromyalgia and depression.

The court concluded the plaintiff failed to prove on a balance of probabilities that she sustained a permanent, serious impairment of an important function caused by the accident.

The motion was dismissed.

The accused was found guilty of sexual assault and sexual touching of his step-daughter, who was under 16 years of age.

The offences occurred in the family home.

The Crown sought a 5-year sentence, while the defence sought 2 to 3 years.

The court weighed the aggravating factors, including the breach of trust and the vulnerability of the victim, against mitigating factors such as the accused's lack of a criminal record and positive community support.

The accused was sentenced to 4 years for sexual assault and 6 months for sexual touching, to be served concurrently.

The court also imposed a s. 161 order prohibiting contact with the victim, but declined to impose broader prohibitions regarding public places and employment involving minors due to a lack of evidence of risk to other children.

In a pre-trial voir dire, the Crown sought to admit statements made by the accused at his home and at the police station following his arrest for importing opium.

The accused sought to exclude the statements, arguing they were involuntary and obtained in violation of his s. 10(b) Charter right to counsel.

The court found the statement at the home was a spontaneous utterance made before the police could complete the caution, and the statement at the station was voluntary despite the lack of a secondary caution.

The court also held there was no change in jeopardy that would trigger a right to a second consultation with counsel.

The statements were ruled admissible.

The appellant client appealed a motion judge's order refusing to confirm an Assessment Officer's Report and Certificate regarding the respondent solicitor's accounts.

The solicitor had abandoned the assessment hearing after his adjournment request was denied.

The Assessment Officer reduced the accounts from over $1 million to $325,789.01.

The motion judge refused to confirm the report, finding the Assessment Officer's reasons inadequate and imposing an evidentiary burden on the client.

The Divisional Court allowed the appeal, holding that the motion judge erred in law by reversing the onus of proof, which rests entirely on the solicitor to prove the reasonableness of his fees.

Given the solicitor's failure to adduce any evidence, the Assessment Officer's reasons were adequate.

The court issued a supplementary endorsement reconsidering its prior decision to grant leave to appeal.

The initial decision granted leave to appeal an injunction order concerning a restrictive covenant in a commercial lease.

The reconsideration was prompted by an oversight where responding and reply materials were not initially put before the judge.

After reviewing the full record, the court affirmed its decision to grant leave to appeal, finding reasons to doubt the correctness of the motions judge's interpretation of the restrictive covenant and its exception, and the application of the RJR Macdonald test regarding irreparable harm and delay.

The court also noted the importance of the issues due to the common use of restrictive covenants in commercial leases.

Costs were reserved to the Divisional Court or to be fixed by the judge upon written submissions.

The appellant father appealed the dismissal of his application under the Hague Convention for the return of his child to Colorado.

The application judge had found that while the respondent mother wrongfully retained the child in Ontario, the appellant subsequently acquiesced to the retention through his prolonged silence and lack of contact.

The Divisional Court upheld the decision, finding no palpable and overriding error in the application judge's conclusion that the appellant's conduct demonstrated acquiescence and that his actions did not constitute bona fide attempts at reconciliation.

The appellant appealed a 40-day liquor licence suspension imposed by the Licence Appeal Tribunal for selling alcohol to intoxicated patrons and permitting drunkenness, following two separate incidents where patrons left the establishment and were later found suffering from hypothermia (one fatally).

The Divisional Court dismissed the appeal, finding no errors of law in the Tribunal's assessment of evidence, no procedural unfairness from an incomplete recording of the hearing, and no error in principle regarding the sanction imposed.

The appellant appealed a decision of the Acting Drainage Referee denying him standing under the Drainage Act to appeal a drainage works report.

The appellant argued he had standing as the spouse of the registered owner of the affected property and as a resident who paid bills.

The Divisional Court upheld the Referee's decision, finding it reasonable that the Family Law Act did not confer an ownership interest for the purposes of the Drainage Act, and that residing in the home did not make the appellant an 'owner'.

The court also dismissed arguments related to the Protection of Public Participation Act and a request for a stay, ultimately dismissing the appeal and awarding costs to the respondents.

Olanrewaju Lisboa sought a Rowbotham order for state-funded counsel in a complex criminal trial involving drug trafficking charges.

While the parties agreed on the complexity of the matter and the applicant's exhaustion of Legal Aid appeals, the court dismissed the application.

The court found that the applicant failed to meet the indigence test, primarily due to insufficient, inconsistent, and unreliable financial disclosure, and a lack of effort to plan for legal costs.

The court also noted that the applicant's own conduct in failing to provide complete information to Legal Aid Ontario disentitled him to funding.

Viktor Mubili brought a motion seeking leave to bring a motion to change a custody and access order, to set aside a costs order, and for other relief.

The court denied leave, finding the motion an abuse of process due to re-litigation of previously decided issues, failure to demonstrate a material change in circumstances, and persistent non-payment of child support and numerous outstanding costs awards totaling nearly $23,000.

The court also lacked jurisdiction to set aside a recent costs order.