Marc E. Smith

Following a two-day trial where the plaintiff obtained a judgment of $138,962.22, the plaintiff sought substantial indemnity costs of $67,710.50 on the basis that the judgment exceeded her offers to settle.

The defendant argued for no costs due to divided success and unreasonable claims.

The court found that while the plaintiff beat her offer to settle, substantial indemnity costs were not appropriate given the defendant's partial success on some claims and some unreasonable billing entries.

The court awarded partial indemnity costs fixed at $42,000 in fees and $2,114 in disbursements.

Following a declaration that the respondents were vexatious litigants, the applicants sought costs on a full or substantial indemnity basis.

The court awarded costs on a substantial indemnity basis due to the respondents' abusive conduct.

However, the court reduced the costs claimed by one applicant because their counsel was located in Toronto, finding it unreasonable to expect the unsuccessful party to pay higher Toronto rates for a matter heard in the Ottawa region.

In additional reasons following a motion, the court determined the quantum of interim child and spousal support and the distribution of proceeds from the sale of the matrimonial home.

The court declined to find that the eldest child resided primarily with the applicant due to conflicting evidence, deferring the issue to trial.

Interim spousal support was ordered at the mid-range of the Spousal Support Advisory Guidelines.

To address dissipation concerns, the court ordered 25% of the respondent's share of the home sale proceeds to be held in trust.

The father brought a motion for increased parenting time and joint decision-making authority, while the mother brought a cross-motion seeking sole decision-making, a Voice of the Child Report, child support, section 7 expenses, an anger management course, and drug testing for the father.

The court granted the father increased parenting time but awarded the mother sole decision-making authority over medical issues.

The court also ordered the involvement of the Office of the Children's Lawyer or a Voice of the Child Report, directed the father to pay child support and section 7 arrears, and ordered him to complete an anger management program.

The mother's requests for drug testing and disclosure of third-party medical records were dismissed.

Following a family law trial but before judgment was rendered, the respondent mother brought a motion to reopen the trial to admit fresh evidence regarding the sale of a co-owned property in the Gaza Strip.

The court applied the factors for reopening a trial and found the fresh evidence to be relevant and material to the disputed valuation of the property.

The motion was granted, and an order was issued requesting the Palestinian Land Authority to provide the updated land registration documents.

Following a five-day family law trial regarding custody and extracurricular activities where the applicant father was successful, he sought costs of $123,063.07.

The respondent mother argued each party should bear their own costs due to her financial hardship and willingness to settle other issues prior to trial.

The court declined to award costs for steps prior to September 2019 where costs were not reserved, but found the father presumptively entitled to costs for the trial.

Balancing the father's success against the mother's pre-trial settlement efforts and financial hardship, the court awarded the father $60,000 in costs on a partial indemnity basis, payable in 24 monthly instalments.

The appellant, a bar security guard, appealed his conviction for assault causing bodily harm after he body-slammed an unruly patron, fracturing the patron's femur.

The appellant argued the trial judge materially misapprehended the evidence by confusing a 'metal post' with a 'cement post' when assessing whether the patron caused his own fall by pushing off a structure.

The Superior Court of Justice dismissed the appeal, finding the trial judge fully comprehended the evidence, properly rejected the appellant's version of events as inconsistent with video footage, and made no palpable and overriding error in her factual or credibility findings.

At the outset of a motor vehicle accident trial, the parties sought a ruling on whether section 12 of the Evidence Act, which limits a party to calling three expert witnesses without leave, applies to participant experts and non-party experts.

The plaintiff intended to call four litigation experts and two participating experts, and file numerous medical reports under section 52.

After reviewing the jurisprudence, including Westerhof v. Gee Estate, and the Osborne Report, the court ruled that section 12 applies only to litigation experts retained for the purpose of the proceeding, and not to participant or non-party experts.

The plaintiff, a long-term employee of 39 years, brought an action for wrongful dismissal, aggravated/moral damages, and discrimination based on sex, age, and disability following her termination without cause.

The court found no break in service despite a new employment agreement signed to access a pension, entitling her to 26 months' notice.

Claims for aggravated/moral damages and additional discrimination grounds (age and disability) were dismissed due to insufficient pleading.

The claim for discrimination based on sex was also dismissed due to a lack of prima facie evidence.

The plaintiff's mitigation efforts were deemed reasonable.

The Estate Trustee brought a motion for directions seeking payment declarations and orders for beneficiaries to provide documents and funds to pay estate debts.

The beneficiaries opposed, arguing lack of jurisdiction and seeking the Estate Trustee's removal due to alleged mismanagement.

The court dismissed both the Estate Trustee's motion, finding it an improper procedural mechanism for substantive relief, and the beneficiaries' application for removal, determining there was insufficient evidence to meet the high threshold for removing an estate trustee.

Following the dismissal of the appellants' appeal, the respondents sought costs.

The appellants, who were self-represented, argued that costs should be awarded against the respondents for refusing to settle, or alternatively, postponed until the end of the action.

The court rejected the appellants' arguments and awarded costs to the respondents on a partial indemnity basis, finding that the appellants' conduct, while unreasonable at times, did not warrant elevated costs.

The court also reduced the costs claimed by one counsel representing multiple defendants to account for economies of scale.

Costs were ordered payable within 90 days.

The applicants sought a declaration that the respondents were vexatious litigants and an order requiring them to seek leave before instituting further legal proceedings.

The court reviewed the respondents' extensive litigation history, including repetitive claims, collateral attacks on previous orders, and persistent failure to pay costs.

The court found the respondents to be vexatious litigants under section 140(1) of the Courts of Justice Act and granted the applications, imposing a standard leave requirement and a "Chavali Order" to prevent serial applications for leave.

This trial addressed two main issues: custody of the children and their attendance at the Rodnik Russian School on Saturdays.

The court found that despite a history of conflict, the parents demonstrated a sufficient ability to communicate and cooperate, leading to an order for joint custody.

Regarding the Russian school, the court determined it was an extracurricular activity, not a part of the normal curriculum, and therefore not mandatory during the Father's parenting time, to allow for diverse experiences and quality time with him.

The self-represented appellants appealed a Master's decision denying them leave to amend their statement of claim and prohibiting the father from acting as agent for his adult son.

The Divisional Court dismissed the appeal, finding the Master correctly concluded that the proposed amendments lacked material facts, failed to properly plead conspiracy, and disclosed no reasonable cause of action.

The Court also upheld the Master's rulings on the respondents' cross-motions and her refusal to address an unpleaded conflict of interest allegation against opposing counsel.

Following substantial success on two applications and one motion brought by the insurer, the insureds sought partial indemnity costs of $64,222.72.

The insurer argued the amount was unreasonable and that the parties should bear their own costs or the amount should be significantly reduced.

The court found the issues were important and novel, justifying the insurer's pursuit of them, but held the insureds' claimed costs were excessive.

Applying principles of fairness, proportionality, and reasonableness, the court fixed the insureds' partial indemnity costs at $30,000 for fees, plus disbursements and costs of the submissions, for a total of $42,381.97.

The respondent father brought a summary judgment motion seeking a declaration that the matrimonial home, registered solely in the applicant mother's name, was held in trust for both of them, and an order for its sale.

The paternal grandmother, who had advanced funds for the home's purchase, supported the motion and abandoned her proprietary claim, seeking only repayment.

The court found no genuine issue for trial regarding ownership, concluding the father had an equal beneficial interest based on unjust enrichment.

The court ordered the sale of the matrimonial home within 45 days, with $500,000 of the proceeds to be held in trust pending resolution of the grandmother's civil action and other financial issues.

The plaintiff brought a motion for a declaration that the defendant's liability for misappropriating trade secrets would not be released upon his discharge from bankruptcy, and for an order lifting the bankruptcy stay to proceed with the damages trial.

The court found that the defendant's conduct in knowingly using the plaintiff's confidential information to manufacture competing products constituted 'false pretences' under section 178(1)(e) of the Bankruptcy and Insolvency Act.

The court granted the declaration and lifted the stay without terms, allowing the plaintiff to proceed with the damages phase of the trial.

The respondent father brought a motion for increased in-person or virtual access with his child, who was in the temporary care of the maternal grandmother under the supervision of the Children's Aid Society.

The Society and the Office of the Children's Lawyer opposed the motion, citing the father's inappropriate behaviour during virtual visits and the child's stated preference to limit access.

The court dismissed the motion, finding that the father's conduct was not conducive to building a positive relationship and that increasing access was not in the child's best interests at this time.

Following a successful motion regarding parenting arrangements, the applicant mother sought full indemnity costs of $12,604.02.

The respondent father argued for a reduced award of $5,000, citing divided success and an all-encompassing offer to settle that was impossible to accept.

The court found the mother was the successful party and presumptively entitled to costs.

While her offer to settle did not trigger Rule 18(14) consequences because it required acceptance in full, her success on the parenting schedule warranted a slight increase from standard partial indemnity costs.

Costs were fixed at $9,450.00.

The Mother brought a motion to find the Father in contempt for failing to comply with a 2018 court order requiring him to disclose his IP addresses, cell phone numbers, and email addresses.

The court found the Father in contempt, noting his intentional refusal to provide the IP addresses despite having the ability to do so.

After the Father failed to purge his contempt, the court imposed a $2,500 fine, ordered him not to denigrate the Mother online, dispensed with his consent for the Mother to obtain third-party disclosure regarding malicious online posts, and ordered him to pay $5,500 in costs.