J. Christopher Corkery

The successful self-represented plaintiff sought costs for nearly 800 hours spent preparing for and attending a trial where the defendants were found liable for conspiracy, slander, and intentional infliction of emotional distress.

The court applied the test from Fong v. Chan, which requires a self-represented litigant to demonstrate an opportunity cost by foregoing remunerative activity to be awarded costs.

Finding that the plaintiff failed to prove any lost income or opportunity cost, the court denied the claim for time spent and awarded only $1,000 in disbursements.

The plaintiff, AA, sued defendants BB and CC for intentional infliction of emotional distress, conspiracy, slander, and libel, alleging they conspired to make a false report to the Children's Aid Society.

The trial was re-opened after an initial decision dismissed the claim against CC and granted limited damages against BB.

Upon review of new evidence, including text messages, the court found that BB and CC acted in combination by agreement or common design to make a false report.

The court awarded AA general damages for intentional infliction of emotional distress and slander, and punitive damages, holding both defendants jointly and severally liable.

The claim for conspiracy merged with the other claims, and CC's statements to the Society were protected by qualified privilege.

The plaintiff, AA, sued defendants BB and CC for intentional infliction of emotional distress, conspiracy, and slander/libel, alleging they conspired to make a fabricated complaint to the Children's Aid Society (CAS).

The court dismissed all claims against CC, finding no evidence of flagrant conduct, harm, or conspiracy, and that her statements to CAS were protected by qualified privilege.

Against BB, the court dismissed claims for intentional infliction of emotional distress (due to lack of expert medical evidence) and conspiracy, but found BB liable for slander for making false allegations to CAS.

AA was awarded $5,000 in general damages and $5,000 in punitive damages against BB.

The appellant, Peter Bothwell, appealed his conviction for operating a motor vehicle with more than 80 milligrams of alcohol, arguing a violation of his s. 10(b) Charter right to counsel due to insufficient privacy during his calls.

At trial, the judge found no breach, concluding that Bothwell's concerns about privacy were remedied by him lowering his voice and that officers did not overhear his conversations.

The Superior Court, on appeal, upheld the trial judge's finding, determining that it was open to the trial judge to conclude that Bothwell had not met the burden of proving a Charter breach on a balance of probabilities, and that the finding was not a palpable and overriding error.

The appeal was dismissed.

The parties settled a personal injury action on the first day of trial after the plaintiff accepted the defendants' offer to settle for $150,000 plus costs to be agreed or assessed.

The defendants brought a motion arguing the plaintiff was only entitled to costs up to the date the offer was served, relying on previous case law.

The court rejected this argument, finding that the plain language of the offer and the Rules of Civil Procedure entitled the plaintiff to partial indemnity costs up to the date the offer was accepted.

The court referred the assessment of costs to an assessment officer and allowed the plaintiff's expert disbursements.

The Crown appealed the accused's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration over 80.

The trial judge had excluded the breath evidence under s. 24(2) of the Charter after finding a s. 8 breach because the arresting officer failed to follow mandatory procedures for operating the approved screening device, thereby lacking reasonable and probable grounds for the arrest.

The Superior Court dismissed the appeal, finding no error in the trial judge's conclusion that the objective basis for the officer's belief was undermined by the failure to follow imperative instructions.

This trial concerned whether Amanda Bowman had the implied consent of her mother, Christina Bowman, to drive her vehicle, which was involved in an accident with the plaintiff, Barbara Watts.

Liability and damages were agreed upon, with the sole issue being implied consent under the Highway Traffic Act.

The court found that Christina Bowman successfully demonstrated that Amanda Bowman did not have her implied consent, thereby absolving Christina Bowman of owner's liability.

Consequently, Western Assurance Company, the plaintiff's insurer, was ordered to pay the agreed damages and costs to the plaintiff, with statutory subrogation rights against Amanda Bowman.

The defendants moved for summary judgment, arguing the plaintiff's personal injury claim was statute-barred due to the two-year limitation period.

The core issue was discoverability, specifically whether the plaintiff exercised reasonable diligence in discovering the permanent and serious nature of her injuries, particularly regarding an MRI report.

The court found it reasonable for the plaintiff to defer to her doctors regarding MRI results and that her claim was not statute-barred, dismissing the motion.

Following a trial to determine the Gross Rentable Area of a leased premises, both parties claimed success and sought partial indemnity costs.

The court found the defendant to be the successful party, as the determined area was significantly higher than the plaintiff's position, resulting in substantial additional rent over the lease term.

The court awarded the defendant costs but reduced the claimed amount due to excessive photocopying disbursements and time spent on an unsuccessful argument regarding BOMA standards.

Police chiefs brought an application under s. 50 of the Arbitration Act, 1991 to enforce arbitration awards ordering a police services board to pay contractual entitlements following the dissolution of a regional police service.

The respondent argued the Arbitration Act did not apply because the arbitration was conducted pursuant to the Police Services Act and that enforcement should be stayed due to a pending judicial review application.

The court held that disputes over remuneration and working conditions of a chief and deputy chief fall outside Part VIII of the Police Services Act, meaning the statutory exclusion of the Arbitration Act did not apply.

Because none of the statutory grounds in s. 50(3) for refusing enforcement were present, the court was required to enforce the awards.

Judgment was therefore granted enforcing the arbitral awards.

Third parties brought a motion for summary judgment dismissing a defendant’s third party claim and crossclaims arising from injuries sustained during an assault after a community festival where alcohol was served.

The moving parties argued there was no evidence establishing their liability for allegedly serving alcohol to an intoxicated attendee who later committed the assault.

The court held that granting summary judgment would require determinations overlapping with issues scheduled for trial and could create inconsistent factual findings.

The matter also raised a potentially novel duty of care question regarding volunteers organizing events where alcohol is served.

The court concluded that summary judgment was not the most appropriate or just procedure.

In a commercial lease dispute concerning a hospital building developed through a public-private partnership, the court determined the gross rentable area used to calculate annual basic rent.

The lease projected a gross rentable area of 135,000 square feet but failed to properly define that term, and the landlord's architect never issued the certificate contemplated by the lease.

Applying modern contractual interpretation principles and limiting surrounding-circumstances evidence to objective facts known at the time of contracting, the court held that the parties intended gross rentable area to correspond to the architect's gross floor area concept rather than the entire building area urged by the defendant.

The court fixed the gross rentable area at 142,907.5 square feet and left the parties to calculate rent payable from October 1, 2013 onward.

The plaintiff subcontractor moved for summary judgment for an unpaid balance under an electrical subcontract on a school construction project, while the defendant contractor cross-moved for a declaration that no further payment was owing unless and until it received further payment from the owner.

The dispute turned on the interpretation of a pay when paid condition precedent tied to payment of certified amounts by the owner.

The court held that the condition was satisfied once the contractor had been paid the certificates in which the subcontractor's amounts were included, notwithstanding the contractor's later invoice reduction for unrelated deficiencies.

Summary judgment was granted to the subcontractor for the unpaid balance, subject only to any agreed adjustment for minor deficiencies.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding 80 mg under s. 253(1)(b) of the Criminal Code.

He argued that the trial judge erred in finding that breath samples were taken “as soon as practicable” and that the first suitable sample was obtained within two hours of the time of driving as required by ss. 254(3) and 258(1)(c).

The court reviewed the full sequence of events, including delays caused by the accused’s medical episode and hospital examination.

It held that the trial judge was entitled to conclude the police acted reasonably and that the first suitable sample, taken 65 minutes after driving, satisfied the statutory requirement.

The presumption under s. 258(1)(c) was properly applied using the lowest reading from the analyses.

Following a family law motion determining arrears of child support, section 7 expenses, and spousal support, the court addressed costs.

The respondent in the underlying motion obtained an order fixing arrears at $37,000, which exceeded the amount proposed in her offer to settle.

Applying the Family Law Rules and the offer to settle regime, the court awarded costs on a partial indemnity basis up to the date of the offer and full recovery thereafter.

After adjusting for unrelated issues and the straightforward nature of the arrears calculation, the court fixed costs at $10,000 plus $800 for the costs submissions, enforceable through a support deduction order.