Howard C. Cohen

This is a costs decision following a summary trial in which the plaintiff's action for 50 percent of the defendant's $301,000 casino jackpot winnings was dismissed.

The action was based on alleged breach of an oral contract, breach of trust, and unjust enrichment.

The defendant sought substantial indemnity costs of $79,750.65, while the plaintiff argued for a reduced award of $25,000.

The court awarded the defendant $40,773.84 in costs, considering factors including the nature of the dispute, the use of two counsel, conduct issues involving a witness, and the principle that costs awards should be fair and reasonable rather than blindly reflecting actual costs incurred.

The accused, Paul Greenberg, was charged with dangerous operation of a motor vehicle after a collision on the Don Valley Parkway.

The Crown relied on dash-camera footage and police testimony, while the accused testified in his defence, claiming he was driving marginally above the speed limit and was cut off by another vehicle.

The court rejected the accused's characterization of his speed and driving, finding that he drove at an excessive speed, repeatedly overtook vehicles by changing lanes, and failed to adjust his driving despite the presence of another speeding vehicle.

The court concluded that his driving constituted a marked departure from the standard of a reasonably prudent driver and endangered the public, leading to a conviction.

The applicant, charged with dangerous driving, brought a Garofoli/Charter application to exclude evidence seized from his dash-camera and EDR, alleging a violation of s. 8 of the Charter.

The challenge focused on the facial and sub-facial validity of the search warrant.

The court found that while a dash-camera may attract a reasonable expectation of privacy, the warrant was validly issued based on sufficient grounds regarding the applicant's dangerous driving preceding the collision.

The court also found no material non-disclosure or bad faith by the police.

The application to exclude evidence was dismissed.

The accused, charged with dangerous driving, brought a motion seeking leave to cross-examine the affiant and sub-affiants of the Information to Obtain (ITO) a search warrant.

The warrant was used to seize and analyze dash cam and Event Data Recorder (EDR) data from his vehicle following a collision.

The accused intended to challenge the sub-facial validity of the warrant, alleging a violation of section 8 of the Charter due to material omissions and ambiguities in the ITO regarding the collision's circumstances, including the potential involvement of a third vehicle and the basis for inferring dangerous driving.

The court granted leave to cross-examine, finding a reasonable likelihood that such examination would elicit testimony tending to discredit the existence of reasonable and probable grounds for the warrant.

Steve Williams was charged with sexual assault and procuring his stepdaughter's friend, KC, who was 16-17 years old at the time.

The sexual assault allegation involved a brief touch to KC's vagina.

The procuring charge stemmed from a series of text messages where Williams offered money for sexual services from KC and/or a "friend." Williams claimed the texts were an elaborate "prank." The court found Williams not credible regarding both charges.

While the court accepted KC's testimony about Williams' request to see her vagina, it found reasonable doubt regarding the intentional application of force for the sexual assault charge due to conflicting evidence on touching.

For the procuring charge, the court found Williams had the intent to procure KC but determined that the actus reus (the act itself) was not met because KC never actually offered or provided sexual services, interpreting the relevant section of the Criminal Code to require such an act.

Consequently, Williams was acquitted on both counts.

The moving party sought an extension of time to commence an application for judicial review of two orders made by the Ontario College of Teachers regarding alleged professional misconduct, and a stay of the ongoing disciplinary proceedings.

The court dismissed the motion, finding the application for judicial review premature as the administrative process had not yet run its course and the issues raised could be addressed before the Discipline Committee.

Consequently, the request for a stay was also dismissed.

This is a costs endorsement following a motion where the Plaintiff successfully sought to stay a related fraudulent conveyance action.

The Plaintiff sought substantial indemnity costs, arguing the Defendant's position was weak and that a reasonable offer to settle was made.

The Defendant sought to defer costs or have them dismissed.

The court declined to defer costs, finding the Plaintiff successful on the motion.

It awarded partial indemnity costs of $9,000.00 to the Plaintiff, determining that while the Plaintiff's offer was reasonable, it did not trigger Rule 49 consequences, and the Defendant's conduct, though based on a tenuous argument, was not abusive or egregious enough to warrant substantial indemnity.

The plaintiff commenced a main action to recover monies from the defendant, a former romantic partner.

The plaintiff subsequently commenced a second action alleging the defendant fraudulently conveyed funds to her counsel.

The defendant brought a motion to dismiss the second action, arguing it was res judicata, an abuse of process, or should be dismissed because another proceeding was pending.

The court dismissed the motion, finding the claim was not res judicata as no final order had been made, and it was not an abuse of process.

However, to prevent the risk of double recovery, the court ordered the fraudulent conveyance action stayed pending the outcome of the main action.

In an action for fraud and breach of contract arising from a relationship between the plaintiff and a former escort, the parties brought motions to resolve various discovery disputes.

The court ordered the plaintiff to produce notes used as an aide memoire during his examination for discovery.

The court also ordered the plaintiff to disclose documents relating to his separation agreement, finding that he had waived solicitor-client privilege by putting his state of mind regarding the transfer of funds in issue.

The defendant's request to examine the plaintiff's wife as a non-party witness was dismissed as unnecessary for the pending motion.

The appellant appealed her conviction for operating a motor vehicle with a blood alcohol level over the legal limit, arguing that the trial judge erred in admitting breathalyzer results despite alleged Charter breaches.

The appellant contended that the change in wording from 'forthwith' to 'immediately' in the Criminal Code created a stricter timeline for roadside screening demands, and that the delay in obtaining an approved screening device violated her rights.

The Superior Court of Justice dismissed the appeal, finding that 'forthwith' and 'immediately' are synonymous, and upholding the trial judge's conclusion that the brief delay was reasonable given officer safety concerns and the lack of a realistic opportunity to contact counsel at the roadside.

The appellant appealed her conviction for impaired driving, arguing the trial judge erred in finding no Charter breaches regarding the delay in administering an Approved Screening Device (ASD) and the failure to provide an opportunity to contact counsel at the roadside.

The appeal court upheld the trial judge's finding that 'immediately' in the amended Criminal Code means the same as 'forthwith', and that there was no unreasonable delay or breach of the right to counsel.

The court also agreed that even if a breach had occurred, the evidence would not be excluded under section 24(2) of the Charter.

The appeal was dismissed.

This decision addresses the costs of a motion for a Mareva injunction.

The Plaintiff had brought a second Mareva injunction motion, which was largely resolved on an uncontested basis.

The parties disagreed on whether the resulting order was on consent and who should bear the costs.

The Plaintiff sought substantial indemnity costs, while the Defendant sought costs against the Plaintiff, including personally against his counsel, alleging improper transfers of funds.

The court found the Defendant to be the successful party on the motion, though with mixed success, and awarded her $7,500.00 in partial indemnity costs from the Plaintiff.

The court declined to order costs against the Plaintiff's counsel personally, emphasizing the high threshold for such awards.

The court fixed costs for a successful motion to strike brought by the plaintiff.

The defendant sought full indemnity costs, but the court limited the award to partial indemnity, finding no conduct warranting enhanced costs.

Considering the motion's simplicity, discrete issues, and some duplication in counsel's work, the court awarded the amount the plaintiff was prepared to pay, $3,606.50, as reasonable partial indemnity costs.

The court fixed costs for a pre-discovery document production motion in a case-managed proceeding.

The defendant, who sought additional document production, was deemed the more successful party, though not entirely successful.

The plaintiff's unreasonable positions regarding document relevance and production obligations were found to have lengthened the motion.

The court rejected the plaintiff's arguments against a costs award based on the informal, letter-based process or the defendant's prior unpaid costs orders.

Partial indemnity costs of $1,000.00 were awarded to the defendant, with the possibility of set-off against any costs owed by the defendant to the plaintiff.

The plaintiff moved to strike portions of the defence and counterclaim alleging details of the parties' sexual relationship and the plaintiff's sexual proclivities.

The court held those allegations were not scandalous, frivolous, or vexatious under Rule 25.11 and were at least arguably relevant to the characterization of the relationship, the defence to the fraud and contract claims, and the counterclaim for intentional infliction of mental suffering.

Applying the Rule 21 plain and obvious test, the court found it was not plain and obvious that the impugned pleadings could not support the defence or counterclaim, including a developing harassment claim.

The motion was dismissed, subject to a direction that the defendant amend the counterclaim to expressly plead negligence.

In a case management motion regarding pre-discovery production, the defendant sought various financial, communication, and personal records from the plaintiff.

The underlying action involved allegations of fraud and breach of contract arising from a relationship that began with the defendant providing sexual services to the plaintiff.

The court ordered the plaintiff to produce bank statements, credit card statements, communications records, and tax notices of assessment from 2014 to 2019, finding them relevant to the disputed timeline of the relationship.

Requests for broader financial records and documents relating to the plaintiff's separation from his wife were narrowed or deferred.

The applicant, a licensed racehorse trainer, sought judicial review of a decision by the Horse Racing Appeal Panel.

A horse trained by the applicant tested positive for a banned substance, resulting in an absolute liability offence.

The Panel found the applicant was not at fault and reduced his suspension from 15 days to seven days, but concluded it had no authority to waive the rule entirely.

The Divisional Court dismissed the application, finding the Panel's decision reasonable as the offence is one of absolute liability and due diligence is only relevant to penalty, not liability.

The accused, Ferenc Feher, applied to the Superior Court of Justice for a review of a detention order issued by the Ontario Court of Justice.

The original detention was based on secondary grounds due to an inadequate release plan and concerns about proposed sureties.

On review, the court considered a new proposed release plan featuring an additional residential surety and a plan for daily employment.

The court was satisfied that the revised plan adequately addressed the secondary ground concerns, leading to the overturning of the detention order.

The accused was released on terms, including three sureties pledging a total of $25,000 without deposit, continuous supervision, non-contact orders, and prohibitions on possessing firearms.

The offender, a lawyer and real estate developer, was convicted of two counts of theft over $5000 for misappropriating approximately $1.8 million in mortgage proceeds from two jointly-owned corporate projects.

The court found the offender abused her position of trust as a corporate director and engaged in a sophisticated pattern of collateral dishonesty to cover up the thefts.

Applying the principles of general deterrence and denunciation for large-scale commercial frauds, the court sentenced the offender to three years' imprisonment and imposed a fine of $220,286 in lieu of forfeiture.

Intact Insurance Company moved for summary judgment to dismiss an action brought by J.P. Towing Service & Storage Ltd. concerning towing and storage fees.

J.P. Towing cross-moved for various declarations and consolidation.

The court dismissed Intact's motion, finding that while most of J.P. Towing's claims (vexatious litigant, prohibitive order, consolidation, and monetary/punitive damages) were not viable, its claim for a declaration that the daily storage rate of $70.00, as determined in a prior Small Claims Court decision (Sherwood), was res judicata against Intact, was valid.

The court allowed J.P. Towing's cross-motion and granted summary judgment on this specific declaration, holding that Intact was bound by the Sherwood decision regarding the daily storage rate when acting on behalf of its insureds.