Kibondo M. Kilongozi

Following a successful motion by the respondent to strike portions of the applicant's affidavit in an estate litigation matter, the parties made written submissions on costs.

The respondent sought full indemnity costs of over $56,000, arguing the applicant made unfounded allegations of fraud and conspiracy, and requested costs be payable personally by the applicant's counsel under Rule 57.07.

The court declined to award full or substantial indemnity costs and refused to order costs against counsel personally, finding the conduct did not rise to the requisite egregious level.

Costs were fixed at $7,500 payable by the applicant to the respondent.

The plaintiff brought a motion to set aside a Registrar's order that dismissed the action for delay under Rule 48.14 of the Rules of Civil Procedure.

The defendants opposed the motion, arguing the plaintiff had abandoned the action and that reinstatement would be prejudicial.

The court granted the plaintiff's motion, finding an adequate explanation for the litigation delay (counsel's illness), inadvertence in missing the deadline, and that the motion to set aside was brought promptly.

While acknowledging presumptive prejudice due to the passage of time, the court applied a contextual approach, emphasizing the preference for resolving matters on their merits, especially when delay is due to counsel's error.

The action was allowed to proceed, and a timetable was ordered.

The appellant sought an extension of time to perfect an appeal from two interlocutory orders of Justice Shelston, which rejected his motion to vary a final custody order and awarded costs.

The Court of Appeal applied the four criteria for extending time: intention to appeal, length and explanation of delay, prejudice (especially to children), and merits of the appeal.

The Court found that the delay prejudiced the children by delaying the resolution of custody issues and that the appeal lacked merit because the orders were interlocutory and thus within the jurisdiction of the Divisional Court, not the Court of Appeal, requiring leave.

The Court of Appeal also stated it could not transfer or authorize the appeal, nor extend the time for seeking leave from the Divisional Court.

The motion for extension was dismissed without costs.

Appeal from a Superior Court judgment dismissing claims for liability arising from the failure of a daycare business and for unjust enrichment.

The appellants alleged that the respondents caused the failure of their daycare enterprise and sought damages for losses.

The appellants also claimed unjust enrichment based on renovations made to the leased premises.

The trial judge found that the appellants failed to prove the respondents caused the business failure and that the appellants' testimony was less credible than that of the respondent.

The appellants were in default of four months' rent when the lease was terminated.

The Court of Appeal found no error of law or palpable and overriding error of fact and dismissed the appeal.

The plaintiff brought a motion for summary judgment seeking a declaration that her motor vehicle insurance policy was valid at the time of her accident, alleging she paid her broker in cash before cancellation.

The defendant insurer brought a cross-motion for summary judgment, arguing the policy was properly cancelled for non-payment and that the plaintiff's claim for statutory accident benefits was statute-barred.

The court dismissed both motions, finding that a trial was necessary to assess the credibility of the plaintiff and her husband regarding the alleged cash payment, which constituted a genuine issue requiring a trial.

The appellant appealed a motion judge's decision staying his motion to change a final family law order due to his egregious and exceptional non-compliance with prior court orders.

The Divisional Court upheld the motion judge's exercise of discretion under Rule 1(8) of the Family Law Rules, finding the appellant had willfully ignored numerous obligations, including support, tuition, life insurance, and costs.

However, the Court allowed the appeal in part to specify the exact conditions the appellant must satisfy to lift the stay and proceed with his motion to change.

The Court also confirmed that a prior $10,000 costs award was a debt under a support order not released by the appellant's bankruptcy.

Following a three-day trial regarding the validity of a separation agreement and child support, both parties sought costs.

The applicant claimed $13,972.05 on a partial indemnity scale, while the self-represented respondent claimed $16,865.

The court found that success was divided, as the respondent succeeded on the validity of the agreement but the applicant succeeded on the issue of child support.

Given the divided success and the unproven nature of the respondent's claimed hours and lost opportunity, the court ordered that no costs were payable by either party.

The applicant sought to invalidate a separation agreement, arguing non-disclosure of assets and lack of understanding, and claimed child and spousal support.

The respondent, self-represented, argued the agreement's validity.

The court found the applicant not credible regarding financial knowledge and understanding of the agreement, upholding the separation agreement's validity under the Family Law Act.

However, the court confirmed its jurisdiction to review child support and special expenses under the Divorce Act, ordering these to be payable according to guidelines, and found no basis to deviate from the spousal support waiver in the agreement under the Miglin framework.

The court rendered a costs endorsement following a motion by the respondent to strike the applicant's pleadings for failure to provide financial disclosure.

Although the underlying motion was dismissed because the applicant provided the bulk of the disclosure after being served, the court found the applicant's compliance was solely due to the respondent bringing the motion.

Applying Family Law Rule 24, the court determined the applicant's conduct was unreasonable and awarded costs to the respondent, emphasizing that parties should not be forced to bring motions to ensure compliance with court orders.

The Respondent brought a motion seeking to strike the Applicant's pleadings or dismiss her application due to her persistent failure to provide court-ordered financial disclosure and answers to undertakings.

The Applicant opposed, arguing substantial compliance since the motion's service.

The court found the Applicant had a history of non-compliance, exacerbated by her counsel's medical issues, but noted significant disclosure was provided after the motion was served.

While acknowledging the Applicant's failure to comply with timelines, the court deemed striking pleadings a draconian remedy.

The motion to strike was dismissed, but the Applicant was ordered to provide remaining specific disclosure by set dates, and certain undisclosed documents (psychiatric reports, medication lists) were barred from use at trial without leave.

The case was set for trial, and the Respondent was awarded costs for the motion.

The applicant corporation sought to discontinue its claim against the defendant lessor.

The defendant by counterclaim, Ms. Gala, opposed the discontinuance and brought a cross-motion for leave to continue the action in the applicant's name under the Business Corporations Act.

The court found that Ms. Gala was neither a director nor a 'deemed director' of the applicant, and therefore lacked standing to initiate or continue the action on its behalf.

The applicant was granted leave to discontinue the action, and the cross-motion was dismissed.

Three offenders were convicted following a lengthy trial of firearms trafficking offences arising from Project Lancaster, a two-year investigation into illegal firearms and drug trafficking.

All three were convicted of various firearms offences involving restricted or prohibited handguns.

Two offenders were also convicted of drug trafficking offences.

The court imposed sentences of 5 years for the firearms offences, with an additional 7 months consecutive for drug offences where applicable.

The court rejected constitutional challenges to the mandatory minimum sentence under section 99 of the Criminal Code, finding that the appropriate sentences exceeded the three-year minimum.

Enhanced credit for pre-trial custody was granted, resulting in net sentences ranging from approximately 4.7 years to 5 years and 7 months.

The appellant appealed a criminal conviction alleging that the trial judge made palpable and overriding errors of fact, misapplied the credibility framework from R. v. W. (D.), and failed to consider inconsistencies in the complainant’s evidence.

The appellant argued the trial judge misapprehended his videotaped police statement regarding whether he had been making out with the complainant.

The court held that the trial judge accurately reflected the appellant’s evidence as clarified during cross-examination and therefore did not misapprehend the evidence.

The court further held that there was no meaningful inconsistency in the complainant’s testimony and that the trial judge properly applied the R. v. W. (D.) framework.

The conviction appeal was dismissed.