Joseph R. Henderson

Following dismissal of the plaintiff's action against a municipality and a police services board, the defendants sought costs.

The defendants' bill of costs totalled $36,963.12 on a partial indemnity basis, but they requested only $5,000 given the plaintiff's difficult financial position and the remote chance of recovering costs.

The court found this request to be a very fair compromise extraordinarily beneficial to the plaintiff and ordered costs of $5,000 all inclusive, payable within 90 days.

Costs decision following two motions: the plaintiff trustee in bankruptcy's summary judgment motion against the corporate defendant for unpaid invoices relating to frozen seafood products, which was dismissed, and the individual defendant's motion to dismiss the action against her personally, to which the plaintiff consented.

The court declined to award substantial indemnity costs based on the defendant's offer to settle, finding the offer required complete capitulation and was not a significant compromise.

Costs on a partial indemnity scale were fixed at $17,929.63 for the summary judgment motion and $2,034 for the dismissal motion, payable within 60 days.

A self-represented plaintiff sought damages after municipal enforcement of a property standards order led to demolition of structures and removal of numerous items characterized as refuse and debris.

The court held the Building Code Act order was valid and binding after committee review and non-compliance, and found the municipality had statutory authority to enter and enforce it.

The court found the municipality acted in good faith and with reasonable care, owed no duty to provide a detailed inventory-style accounting of removed refuse, and incurred no civil liability.

Claims against the police services board for failing to intervene or lay charges were also rejected.

The action was dismissed, and the court further held that damages were not proven in any event.

The plaintiff trustee in bankruptcy brought a Rule 20 motion for summary judgment against a food and beverage wholesaler for $94,721.50 representing eight unpaid invoices for frozen seafood products.

The defendant denied placing any orders after May 2023, asserting the products were delivered without a contract.

The court identified three concerns: absence of direct contractual evidence, no affidavit from the key Toppits sales representative who allegedly made the oral contracts, and credibility issues with the defendant's principal that required viva voce evidence to resolve properly.

Applying the two-step Hryniak framework, the court found it could not make a fair and just determination on the motion and dismissed the summary judgment motion, directing the matter to trial.

The applicant condominium corporation sought declarations that the respondent unit owners breached ss. 19, 98, 117, and 119 of the Condominium Act, 1998, orders requiring the respondents to permit inspection of an in-unit washer and dryer installation, to enter into an indemnity agreement for an unauthorized video doorbell on a common element, and to cease harassing building staff and other occupants.

The court found the respondents breached s. 98 by refusing to sign an indemnity agreement for the video doorbell and s. 19 by refusing to permit entry for inspection.

The harassment allegations were not resolved on the affidavit evidence and the balance of the application was converted to an action requiring viva voce evidence.

Costs were awarded to the applicant on a full indemnity basis, fixed at $10,000 for the resolved matters.

Sentencing for unlawful act manslaughter arising from the accused's trafficking of cocaine laced with fentanyl, which caused the death of the purchaser's brother.

The accused, a cocaine dealer, sold what he believed to be cocaine, but the substance was a mixture of cocaine and fentanyl.

The court found that trafficking in dangerous illegal drugs for profit, resulting in death, engages the paramount sentencing objectives of deterrence and denunciation.

After reviewing the sentencing range of three to eight years for drug-trafficking-predicated manslaughter, the court imposed a mid-range sentence of five years, less presentence custody credit, considering the accused's lengthy criminal record as an aggravating factor and the absence of intentional fentanyl trafficking as a mitigating factor.

Both parents brought competing motions regarding the father's parenting time with their three children.

The mother had unilaterally suspended the father's unsupervised parenting time after allegations that he interrogated the children about the mother's activities and made inappropriate racial, religious, and gender-biased comments.

The court found some merit to the allegations based on evidence from multiple sources including a children's counsellor, supervised visit notes, and a children's aid investigation, but held that the mother was not justified in unilaterally suspending court-ordered parenting time absent immediate danger to the children.

The court restored unsupervised parenting time under the existing order, denied the mother's request for supervised access, ordered the father to enroll in the Caring Dads program, and denied make-up parenting time.

The defendants brought a motion to amend their pleadings by delivering a Fresh As Amended Statement of Defence and Crossclaim.

The plaintiffs opposed the motion, arguing that the defendants had made admissions in the proceeding and that Rule 51.05 governing withdrawal of admissions applied.

The court found that while the defendants had made certain admissions regarding the promissory note and advances of funds, the proposed amendments did not seek to resile from those core admissions.

Rather, the defendants sought to plead alternative circumstances regarding the nature of the transaction, including rectification, set-off, and damages claims.

The court granted leave to amend, except for the non est factum defence, which was precluded by the defendants' prior admissions regarding the promissory note.

The defendant was charged with possession of cocaine for the purpose of trafficking contrary to s.5(3)(a) of the Controlled Drugs and Substances Act and possession of money exceeding $5,000 derived from an indictable offence contrary to s.355(a) of the Criminal Code.

Following a trial conducted as a blended hearing, the court found that police had reasonable and probable grounds to arrest the defendant based on confidential informant information and surveillance observations.

The defendant was found to be in possession of all cocaine found in his vehicle and residence for the purpose of trafficking.

However, the Crown failed to prove possession of more than $5,000 derived from drug trafficking.

The defendant was convicted on count one and convicted of the lesser included offence on count two.

The defendant was charged with manslaughter in connection with the death of Robert Davies, who died from an overdose of fentanyl and cocaine.

The Crown alleged that the defendant sold a mixture of cocaine and fentanyl to Matthew Grout, who purchased the drugs on behalf of himself, Robert Davies, and Sheldon Gittens.

All three consumed the substance at Davies' residence, resulting in Davies' death.

The court found that the defendant committed the predicate offence of trafficking in a controlled substance, that the trafficking presented an objectively foreseeable risk of bodily harm, and that the defendant's unlawful act was a legal cause of Davies' death.

The defendant was convicted of manslaughter.

This costs decision follows the dismissal of the plaintiff’s claim after a two-day trial under the simplified procedure.

The defendant, having been entirely successful, sought costs on a substantial indemnity basis, relying on an offer to settle.

The court declined to award substantial indemnity costs, finding the offer did not justify a higher scale.

Considering the simplicity, short duration, and small amount at issue, the court awarded partial indemnity costs of $15,000 plus HST and disbursements, for a total of $19,197, payable within 90 days.

The court considered the admissibility of a videorecorded statement made by the accused, Jeremy Folk, to police in a manslaughter case.

The statement was challenged on the grounds of voluntariness and alleged breaches of the right to counsel under section 10(b) of the Charter.

The court found that while the statement was voluntary, the police failed to provide a reasonable opportunity for the accused to consult with counsel of choice before the interview.

As a result, the statement was excluded from evidence under section 24(2) of the Charter.

The plaintiff, Howard Walton operating as Norseman Racing Stable, sued Fort Erie Live Racing Consortium for negligence in assigning an incorrect carry weight to his horse, One Bay Hemingway, in the Lake Erie Stakes race.

The court found that while Fort Erie owed a duty of care to horse owners, it did not breach the standard of care in this case.

The error in carry weight assignment was not due to negligence by Fort Erie staff, who reasonably relied on available information.

The plaintiff’s claim was dismissed.

The plaintiffs, Maria Stiles, Jack Stiles, and The Estate of Peter Elie, brought a motion under rule 30.10 of the Rules of Civil Procedure for production of Toronto Police Service investigative records regarding the death of Peter Elie.

The court found the requested documents relevant and that it would be unfair to require the plaintiffs to proceed to trial without them.

The court ordered production of the records, subject to screening by the Attorney General for privilege or confidentiality, and awarded costs to the plaintiffs.

The applicants sought to rescind an agreement of purchase and sale for a condominium unit after the developer added a fourth floor to the building, arguing this was a material change under the Condominium Act, 1998.

The court found the addition of the fourth floor was objectively a material change, but held the applicants lost their statutory right to rescind by failing to act within the 10-day period prescribed by the Act.

The court also rejected the argument that the change constituted a fundamental breach at common law, as the applicants would still receive the same unit as described in the agreement.

The application was dismissed and costs awarded to the respondent.

The applicant brought a motion for a finding of contempt against the respondent for breaching a court order that prohibited their daughter from being in the presence of Jake Isenor, who had a history of mental health issues, substance abuse, and domestic violence.

The court found the respondent intentionally breached the order on multiple occasions in July and December 2023, by arranging for the child to be in Isenor's presence and attempting to conceal these breaches.

The respondent's testimony regarding her lack of awareness of Isenor's presence was found to lack credibility.

The court concluded the respondent was in contempt of court and directed the parties to arrange a penalty hearing.

This is a costs decision following a three-day family law trial.

The applicant, Kristen Geuze, sought costs after being the successful party on issues of primary residence, decision-making responsibility, parenting time, and child support.

The respondent, Rhyan Aaron Beal, did not make submissions on costs.

The court found the applicant's offer to settle was reasonable and should have been accepted, while the respondent's positions were unreasonable.

The court awarded costs to the applicant on a scale greater than partial indemnity but less than substantial indemnity, with a modest reduction for administrative duplication.

The plaintiff moved for a contempt finding against RBC Life Insurance Company and Anna Watroba for alleged non-compliance with a prior order to produce the complete RBC Claims Manual, also seeking disclosure of officers' names and striking of the defence.

The court found the original order ambiguous regarding the scope of "complete manual" beyond the 67 headings initially referenced in evidence.

As contempt requires proof beyond a reasonable doubt of a clear, unequivocal order and intentional breach, the ambiguity precluded such a finding.

The court dismissed all of the plaintiff's requests, noting the underlying issue was inaccurate evidence provided by the defendants in the prior motion, not a clear breach of the order.

No costs were awarded due to the defendants' role in creating the problem through inaccurate evidence.

Following a successful liability trial where the defendants were found 100% liable for a slip and fall, the court addressed the issues of prejudgment interest, postjudgment interest, and costs.

The court awarded prejudgment interest from the date damages were settled (May 4, 2020) to the judgment date (May 2, 2024), and postjudgment interest on the settled damages amount of $65,000.

For costs, the court determined that the simplified procedure cost cap of Rule 76.12.1 did not apply because the action was commenced before January 1, 2020, despite later conversion to simplified procedure.

Applying Rule 49.10, the plaintiff was awarded partial indemnity costs until November 26, 2015, and substantial indemnity costs thereafter, fixed at $80,000 for fees plus HST, and $26,529.07 for disbursements.

The parties brought cross-motions to change existing final orders for spousal support, child support, and section 7 expenses.

The court determined the duration of spousal support, rejecting the applicant's request for termination and ordering it to continue until April 30, 2027, based on the total cohabitation period.

Retroactive spousal support amounts were adjusted based on the applicant's increased income, and arrears were calculated.

The court also addressed section 7 education expenses, ordering the applicant to reimburse the respondent for a portion of Adam's expenses but making no order for Heather or Jared.