J. Wilson

The moving party, R.W. Tomlinson Limited, sought an order for costs against the Town of Greater Napanee and Keep Napanee Great following a successful appeal regarding a zoning by-law amendment and site plan application for an asphalt plant.

Tomlinson alleged that the respondents acted unreasonably by pursuing an appeal with no reasonable prospect of success and raising irrelevant evidence.

The Tribunal dismissed the motion, finding that the respondents' conduct did not meet the high threshold of being unreasonable, frivolous, vexatious, or in bad faith required for a costs award under Rule 23.9 of the Tribunal's Rules of Practice and Procedure.

The applicant appealed the Town's refusal of a Zoning By-law Amendment and failure to make a decision on a Site Plan application to permit a permanent hot-mix asphalt plant and a future ready-mix concrete plant.

The Tribunal found that the proposed development is consistent with the Provincial Policy Statement and conforms to the County and Town Official Plans.

The Tribunal accepted expert evidence demonstrating that the plant is appropriately separated from sensitive land uses and that potential impacts related to noise, dust, odour, and traffic can be adequately mitigated.

The appeal was allowed, and the Zoning By-law Amendment and Site Plan were approved.

The applicant appealed the Town of Greater Napanee's refusal of an application to amend a zoning by-law to permit a permanent asphalt and ready-mix concrete plant.

At the Case Management Conference, the Tribunal granted party status to a local group, Keep Napanee Great, on consent.

The Tribunal directed the parties to submit a joint draft Procedural Order and Issues List and scheduled a 10-day hearing of the merits.

The applicant, operator of Sunset Manor long-term care home, sought judicial review of a Director's decision ordering the home to cease admitting new residents due to a risk of harm.

The applicant argued the decision was tainted by a reasonable apprehension of bias because one of the inspectors was a former employee, that it was denied procedural fairness, and that the decision was unreasonable.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias, that the procedural fairness owed was met, and that the Director's decision was reasonable and justified based on a history of non-compliance.

The defendant, Kamal Jandu, was charged with operating a motor vehicle with an excessive blood-alcohol concentration.

The trial focused on an alleged section 10(b) Charter violation regarding the right to counsel.

The defendant claimed she was misled by police when told she could not call her husband, whom she intended to ask for a lawyer.

The court found no Charter breach, ruling that the detainee has an obligation to explicitly state the purpose of contacting a third party for legal counsel.

Since the defendant failed to communicate this, the police were not obligated to facilitate contact with her husband for that purpose.

Consequently, the Charter application was dismissed, and a conviction was entered.

The defendant, Husani Alexander, was charged with three counts of assault against his former partner, Tashina Yorke: assault causing bodily harm on December 22, 2019, assault causing bodily harm on March 10, 2016, and assault on August 24, 2016.

The central issue was credibility.

The court found both the complainant and the defendant to be credible witnesses, albeit with reservations for the complainant.

Regarding the December 2019 incident, the court found the headbutt was accidental, leading to dismissal of that charge.

For the March and August 2016 incidents, the court found both versions of events equally plausible and could not conclude guilt beyond a reasonable doubt.

Consequently, all three charges were dismissed.

Following a five-day family law trial where the respondent was entirely successful, the respondent sought full recovery costs of $139,675.71.

The court found that the respondent beat her offers to settle and that the applicant acted in bad faith by hiding income, failing to make disclosure, and advancing spurious claims to drain the respondent's resources.

The court awarded the respondent her full claimed costs of $139,675.71, enforceable through the Family Responsibility Office as child and spousal support.

The parties separated after a 20-year marriage.

The applicant husband claimed he had no assets, lived on loans from friends, and sought an unequal division of net family property in his favour.

The respondent wife claimed a resulting trust in the matrimonial home, equalization, and support, alleging the husband hid assets and income.

The court found the husband failed to make full and frank disclosure, hid foreign assets, and received substantial undisclosed income and gifts.

The court granted the wife a resulting trust in the matrimonial home, imputed an annual income of $349,544 to the husband, awarded the wife a lump sum spousal support payment of $434,784, and ordered the net proceeds of the matrimonial home be paid to her in satisfaction of her claims.

The defendant was tried for impaired driving and driving with a blood-alcohol concentration at or above the legal limit ("80-plus").

The defence argued post-driving alcohol consumption, claiming the defendant drank a significant amount of whisky after a collision and before police arrived, which would explain his impairment and breath readings.

The court found the defendant's testimony regarding post-collision drinking and the presence of alcohol in the vehicle to be incredible and unreliable.

The court also determined that the defendant would have had a reasonable expectation of providing a breath sample after the collision.

Based on the evidence, including police observations and the collision itself, the court found the defendant guilty beyond a reasonable doubt of both impaired driving and the "80-plus" offence.

The applicant, Dr. Lazare, sought partial costs of $48,450 following a spousal support review.

The respondent, Ms. Heitner, argued for no costs, citing divided success, her April 3, 2018 Offer to Settle, and her financial means.

The court found Dr. Lazare largely successful on the dominant issues at trial, including income determination, child support, section 7 expenses, and the denial of Ms. Heitner's claim for indefinite spousal support, despite not achieving his preferred spousal support termination date.

Ms. Heitner's single, non-severable offer to settle, made late in the litigation, and her overall litigation conduct were deemed unreasonable.

The court awarded Dr. Lazare $35,000 plus HST in costs, reflecting a partial recovery due to the divided success on the spousal support termination date and other factors.

The applicant father brought a motion to change seeking to terminate spousal support and adjust child support to reflect a shared parenting arrangement.

The respondent mother sought to continue full table child support and significantly increase spousal support with no termination date.

The court found the mother was intentionally under-employed and imputed her income at $78,000.

The court ordered a set-off of child support under section 9 of the Guidelines and ordered spousal support to continue at the current quantum until August 31, 2021, at which time it will terminate.

This trial concerned parenting and financial issues following a high-conflict marital breakdown.

The applicant father sought equal parenting time for the youngest child (Hakuin, 10) and custody of the middle child (Sophi, 16), while the respondent mother sought custody or shared custody of the three younger children and a therapeutic intervention for the older children who were estranged from her.

The court considered extensive professional evidence regarding parental alienation and justified rejection.

The court granted the father sole custody of Sophi, respecting her wishes given her age.

For Hakuin, the court maintained the status quo, with primary residence with the mother and the father's existing access schedule, finding this offered the best chance for Hakuin to maintain relationships with both parents despite concerns about sibling influence and parental alienation.

On financial matters, the court imputed income to both parents for child support calculations, ordered child support payments between them for Sophi and Hakuin, and granted spousal support to the mother.

The matrimonial home was ordered sold, with proceeds divided after adjustments.

Following a successful appeal that set aside an order requiring the appellant to have a litigation guardian, the court determined the costs of the appeal.

The appellant sought substantial indemnity costs of over $30,000, arguing that full recovery is the norm in family law proceedings.

The respondent argued for no costs due to the novelty of the issue, or alternatively $7,000.

The Divisional Court held that the normal rule of partial indemnity costs applies to appellate proceedings in this court, rejecting the family law full-recovery norm for appeals.

Costs were fixed at $15,000 on a partial indemnity basis.

The plaintiff sought rescission and damages arising from a five-year fixed price electricity contract entered into in 2008, alleging negligence, negligent misrepresentation, bad faith, and breach of contract after market electricity prices later fell below the contract rate.

The court found the parties were acting at arm’s length in an ordinary commercial transaction, that the defendant’s sales representative made no dishonest or knowingly misleading statements, and that any views expressed about future electricity prices were opinions or expectations honestly held at the time.

The court further held the plaintiff failed to prove actual reliance, had signed a contract expressly disclaiming reliance on outside representations, and had not attempted termination in accordance with the contract terms.

The later-pleaded claim that the defendant breached the contract by failing to accept termination was held to be a new cause of action and statute barred.

The action was dismissed.

The minor appellant brought an application seeking child support from her biological father.

The motion judge held that the appellant was required to have a litigation guardian under Rule 7 of the Rules of Civil Procedure, finding the Family Law Rules did not adequately cover the situation.

On appeal, the Divisional Court held that the Family Law Rules do adequately cover the situation, specifically exempting a child in a child support case from the definition of a 'special party'.

The appeal was allowed, and the order requiring a litigation guardian was set aside.

The parties made costs submissions following a successful motion by the respondent father to set aside an appeal decision based on a reasonable apprehension of bias.

The appellant daughter sought costs thrown away for the initial appeal hearing, while the respondent father sought costs as the successful party on the motion to set aside.

The Divisional Court declined to award costs to either party, noting that the motion to set aside was based on the appearance of judicial impartiality and was unconnected to the merits of the underlying dispute or the parties' conduct.

The court left the determination of costs for the preparation of the appeal materials to the new panel that will re-hear the appeal.

The moving party brought a motion to set aside an appeal decision after discovering that one of the panel judges had briefly represented him in a related matter 16 years prior, before her appointment to the bench.

Neither the judge nor the moving party recalled the relationship at the time of the appeal hearing.

Applying the objective standard for reasonable apprehension of bias, the court found that prudence dictated setting aside the decision and constituting a new panel to re-hear the appeal.

The plaintiffs, aboriginal persons removed from their homes by Ontario child welfare authorities and placed with non-aboriginal families, brought a proposed class action against Canada for breach of fiduciary duty and negligence.

Canada appealed the dismissal of its motion to strike the statement of claim and the certification of the class action.

The Divisional Court dismissed the appeal, finding it was not plain and obvious that the claims for breach of fiduciary duty and negligence disclosed no reasonable cause of action, given Canada's unique relationship with aboriginal peoples and its delegation of child welfare responsibilities to Ontario.

Following a family law trial concerning custody, access, and mobility, the successful party sought substantial indemnity costs exceeding $170,000 including costs of earlier motions.

The court applied Rule 24 of the Family Law Rules and considered the effect of an unaccepted offer to settle under Rule 18(14), the parties’ conduct during litigation, and the presumption that costs follow success.

The court found the successful party’s conduct reasonable and the opposing party’s conduct contributed to unnecessary trial length and litigation complexity.

However, the bill of costs did not clearly segregate financial issues from parenting issues, warranting a modest reduction.

Considering the opposing party’s limited financial circumstances as a discretionary factor, the court fixed costs at $105,000 inclusive.

The mother, while pregnant, left Ontario for California where she gave birth to the child and intended to remain permanently.

The father brought an application in Ontario for shared custody, and the motion judge assumed jurisdiction by exercising the court's parens patriae power, finding a legislative gap in the Children's Law Reform Act since the child was not habitually resident in Ontario.

The Court of Appeal allowed the mother's appeal, holding that the child falling outside the statutory definition of habitual residence was a matter of legislative design, not a gap.

Furthermore, the court held there was no basis to exercise parens patriae jurisdiction as there was no evidence the child required the Ontario court's protection, especially given the ongoing proceedings in California.