Jeffrey D. Ayotte

The appellants sought to advance a new theory regarding a 15-degree bend in the property boundary line between their lot and the respondent's lot on Jack Lake.

This theory was based on new expert evidence obtained after the Court of Appeal's 2020 decision, which had remitted the matter back to the Superior Court to determine the location of the water's edge in 1902 and related issues.

The motion judge dismissed the appellants' second application as a collateral attack on the 2020 order.

The Court of Appeal upheld this dismissal, finding the second application constituted an abuse of process because the bend theory could and should have been raised in the original application.

The court also rejected the appellants' alternative motion to vary the 2020 order.

This is a costs decision following a successful motion for summary judgment by the defendant in a malicious prosecution claim.

The court reviews the parties’ submissions on costs, the applicable legal framework, and the principle of proportionality.

Ultimately, the court fixes costs payable by the plaintiff to the defendant at $75,000 inclusive of HST, considering fairness, the nature of the offer to settle, and the context of the litigation.

The court granted summary judgment dismissing Adam Bullock’s claim for malicious prosecution against Jane Doe, arising from criminal charges of sexual assault that were later withdrawn.

The decision reviews the high threshold for establishing malicious prosecution, especially against private individuals, and finds that Doe’s conduct—while misleading in some respects—did not compromise the independence of the police investigation or the decision to lay charges.

The court concludes that there is no genuine issue requiring a trial on the first element of the test for malicious prosecution, and that the remaining elements would also not support Bullock’s claim.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant was awarded costs of the appeal in the agreed upon, all-inclusive amount of $15,000.

The appellant appealed a trial decision determining the terminus of a lot line between two waterfront properties on a controlled lake.

The trial judge found that the term 'High Water Mark' on the registered plan unambiguously referred to the Normal Controlled High Water Level.

The Court of Appeal allowed the appeal, finding that the term created a latent ambiguity and that the original subdivider intended to convey all the land it owned, which extended to the water's edge at the time of the 1902 Crown patent.

The matter was remitted to the trial court to determine the water's edge at the time of the Crown patent and the effects of any subsequent erosion or accretion.

The applicants and respondent disputed the termination point of the lot line between their adjacent waterfront properties on Jack Lake, a controlled body of water.

The applicants argued the line ended at the normal controlled high water level, while the respondent argued it ended at the original natural water level prior to damming.

The court found that on a controlled body of water, the 'High Water Mark' shown on the subdivision plan presumptively refers to the normal controlled high water level.

The court granted a declaration in favour of the applicants, establishing the boundary at the contour elevation of 106.33 feet.

The applicant sought a variation of an initial order requiring the assignment of one-half of a pre-retirement death benefit to Shelly Ann Marie Cotnam.

The variation was requested because the direct assignment of funds into an RRSP would cause Shelly to lose federal disability benefits and future Registered Disability Savings Plan (RDSP) grants.

The applicant proposed directing the funds back into the deceased's estate to be held in a Henson Trust.

The court agreed that the direct assignment would unfairly interfere with Shelly's benefits but was not prepared to impose a significant tax burden on the respondent for a gross sum payment.

The court ordered that the amounts should not be assigned directly to Shelly and suggested alternative methods, such as assignment to a designated trustee to manage funds to avoid benefit impact, or, if not possible, directing the net-of-tax monies to the existing Henson Trust or Shelly's RDSP to the extent of available space.

The accused, Stephen Douglas Shier, pleaded guilty to counselling the commission of murder not committed after attempting to hire a police officer, posing as a hit man, to kill his ex-partner.

The offence was motivated by financial distress and anger over monthly support payments following an acrimonious domestic relationship.

The court considered aggravating factors, including the calculated nature of the crime, the domestic context, and the opportunity for sober second thought, alongside mitigating factors such as a guilty plea, lack of criminal record, strong community support, and low risk of future violence.

The court imposed a sentence of six years' imprisonment, less credit for pre-trial custody and restrictive bail conditions, resulting in a net sentence of five years, five months, and eighteen days, along with ancillary orders.

The third party plaintiffs, who installed septic systems in a residential subdivision, were sued by the builder after 35 systems failed and had to be replaced due to non-compliant filter sand.

After settling the main action, the installers brought a third party claim against the aggregate supplier who provided the filter sand, alleging breach of contract and negligence.

The court found the supplier breached an implied warranty of fitness under section 15 of the Sale of Goods Act because the sand did not meet Ontario Building Code specifications.

The court awarded the installers their settlement costs and legal fees as damages, but apportioned fault, reducing the damages by 16.5% to account for the installers' own design and installation errors.

The negligence claim was dismissed due to a lack of expert evidence establishing the standard of care for manufacturing filter sand.

The appellant, a physician, appealed a trial judgment awarding damages for wrongful termination of employment to the respondent, a nurse who had worked in his medical office for 22 years.

The trial judge found that the appellant terminated the respondent's employment at a meeting on June 20, 2012, based on credibility findings that favored the respondent's account of events.

The appellant argued the trial judge's credibility findings were unreasonable and failed to consider the context of the respondent's resistance to converting office records to electronic format.

The Court of Appeal upheld the trial judgment, finding no overriding and palpable error in the trial judge's findings of fact and credibility.

The court also found no reversible error in the trial judge's determination of reasonable notice period under the Bardal factors.

The appeal was dismissed with costs fixed at $15,000, all inclusive, with a correction to the pre-judgment interest rate from 3 percent to 1.3 percent to be recalculated by the parties.

The plaintiff, Gauvreau & Associates Professional Corporation, sought an interlocutory injunction against the defendants, Pelton & Co. Professional Corporation and Laurie Pelton, to enforce a non-competition agreement.

The agreement stemmed from the sale of Pelton's accounting practice to Gauvreau, which included goodwill and a client list, alongside an independent contractor agreement.

The defendants, after Pelton left Gauvreau, began servicing clients from the sold list.

The court, treating the agreement primarily as a business sale contract but also considering employment interests, found the seven-year, Ontario-wide non-competition clause unduly restrictive.

While acknowledging a serious issue to be tried regarding the enforceability and potential "reading down" of the clause, and finding irreparable harm in the loss of goodwill, the court granted a limited injunction.

This injunction prohibited the defendants from *further* soliciting clients on the sold list until trial, but did not prevent them from accepting business from clients who had already switched or those who had not yet retained them.

Costs were reserved to the trial judge.

The plaintiff, a registered practical nurse and office manager with 22 years of service, sued her employer, a plastic surgeon, for wrongful dismissal.

Following a dispute over the implementation of electronic medical records, the employer yelled at the plaintiff, used profanity, and told her to get out, stating he was sick of looking at her 'ugly face'.

The court found that the plaintiff was expressly fired, or alternatively constructively dismissed, as the employer's conduct made continued employment intolerable.

The court awarded a 24-month notice period, less mitigation earnings, but dismissed claims for aggravated and punitive damages.

The Crown prosecuted Dean Del Mastro, a Conservative candidate in the 2008 federal election, and Richard McCarthy, his Official Agent, for violations of the Canada Elections Act.

The charges included incurring election expenses exceeding campaign limits, making personal contributions exceeding limits, and filing false or incomplete election expense returns.

The central issue involved a $21,000 contract with Holinshed Research Group for voter identification and get-out-the-vote calling services during the election period.

The Crown alleged the contract was completed and paid for but not properly declared.

The Defence contended the contract was limited to $1,575 for partial GOTV calling only.

After a 15-day trial, the court found the Crown proved its case beyond a reasonable doubt and convicted both accused on multiple counts.

The appellant municipality appealed a trial judgment finding it liable for malicious prosecution and awarding $550,000 in punitive damages to the respondent estate.

The deceased had been wrongfully dismissed from his position as a building inspector, after which the municipality withheld exculpatory evidence from the police, leading to criminal charges of which he was ultimately acquitted.

The Court of Appeal upheld the finding of malicious prosecution, concluding the municipality initiated the proceedings by withholding evidence.

However, the Court allowed the appeal on punitive damages in part, reducing the award to $450,000 because the trial judge failed to account for the punitive elements of the substantial compensatory damages and costs already awarded.

The Crown applied to remove defence counsel from the record on the basis of an alleged conflict of interest after the lawyer provided brief legal advice to a material Crown witness who was also the accused’s power of attorney.

The witness had contacted the lawyer seeking guidance about police questioning relating to potential obstruction charges.

The court applied the principles governing removal of counsel, including the accused’s fundamental right to counsel of choice and the requirement that counsel be free from disqualifying conflicts.

Finding that no solicitor‑client relationship existed between the lawyer and the witness and that no confidential information had been imparted, the court held that no realistic risk of conflict had been established.

The application was therefore dismissed, although the trial judge retained the ability to impose measures such as independent cross‑examination if necessary.

Following a direction from the Court of Appeal to reconsider liability for malicious prosecution, the court determined whether a municipality could be liable for initiating criminal proceedings against a former employee.

The court applied the four‑part test from Nelles v. Ontario and examined whether the municipality initiated the prosecution, lacked reasonable and probable grounds, acted with malice, and whether the proceedings terminated in favour of the plaintiff.

The court found the municipality withheld exculpatory information from police regarding missing municipal files and prior internal investigations, thereby undermining the independence of the police investigation and becoming the proximate cause of charges that resulted in an acquittal.

The court concluded the prosecution was pursued to justify the employee’s dismissal and shield the municipality from civil liability.

Liability for malicious prosecution was established, but damages were fixed at a nominal amount pursuant to agreement of counsel.

The appellant, a former municipal building official, was wrongfully dismissed and subsequently charged criminally after the municipality reported alleged missing permit fees to the police.

After being acquitted, he sued for wrongful dismissal and malicious prosecution.

The trial judge awarded damages for wrongful dismissal but dismissed the malicious prosecution claim, finding no initiation or malice by the municipality.

The Court of Appeal allowed the appeal, holding that the trial judge erred by applying the high threshold for malice applicable to Crown prosecutors to a private defendant, and by making inconsistent findings regarding the municipality's conduct.

A new trial was ordered for the malicious prosecution claim and the quantum of punitive damages.