Maria V. Carroccia

This ruling addresses the costs of an application where the applicants successfully obtained an order terminating an Agreement of Purchase and Sale via summary judgment.

The applicants sought $37,052.24 in partial indemnity costs, citing complexity and importance.

The respondent argued the matter was not complex and proposed a maximum of $15,000.

The court, applying principles of reasonableness and proportionality, awarded the applicants $25,000 inclusive of disbursements and HST.

The accused brought an application under s. 11(b) of the Charter of Rights and Freedoms, seeking a stay of proceedings due to unreasonable delay in their first-degree murder and attempted murder trial.

The total delay from charge to anticipated trial end was 37.12 months (1129 days).

The court deducted 98 days for defence delay (preference for consecutive preliminary inquiry dates) and 11 days for judicial illness, resulting in a net delay of 33.53 months (1020 days), which exceeded the 30-month presumptive ceiling for Superior Court cases.

The Crown argued that the delay was justified by exceptional circumstances, specifically the COVID-19 pandemic and the complexity of the case.

The court found the case to be of moderate complexity and attributed 107 days (3.53 months) of the delay to the COVID-19 pandemic's systemic impact and backlog.

This brought the net delay down to 30 months, falling within the presumptive ceiling.

The court also found that the defence had not demonstrated meaningful and sustained efforts to expedite the proceedings.

Consequently, the application for a stay of proceedings was dismissed.

The applicants sought a declaration that they validly terminated an Agreement of Purchase and Sale for commercial property.

The agreement included a termination option if the respondent failed to complete a pre-consultation meeting with the municipality within four weeks of signing.

The respondent argued a meeting held prior to signing satisfied the condition and sought to convert the application into an action.

The court held the matter could proceed by application as it involved contract interpretation, found the prior meeting did not satisfy the condition, and declared the agreement validly terminated.

The accused was arrested for impaired driving causing bodily harm (later upgraded to causing death) following a motor vehicle collision.

While detained in police cells, she was subjected to video surveillance, including while using the toilet.

The accused brought a Charter application alleging a breach of her s. 8 rights, arguing she should have been automatically provided a privacy gown rather than merely offered one.

The court dismissed the application, finding no s. 8 breach because the police took reasonable steps to protect her privacy by repeatedly advising her of the video surveillance, pointing out signage, and offering her a privacy gown, which she declined.

Following a consent order appointing the Public Guardian and Trustee (PGT) as guardian of the respondent's property, the PGT sought its costs of the application.

The respondent opposed, arguing that Rule 57 of the Rules of Civil Procedure should apply to deny costs.

The court held that section 8 of the Public Guardian and Trustee Act provides statutory authority for the PGT to deduct its reasonable fees and expenses from the respondent's property, and this provision prevails over Rule 57.

The court found the PGT's requested costs of $21,173.38 to be reasonable and ordered them payable from the respondent's funds.

Donald Earhart, convicted of first-degree murder, applied under s. 745.61 of the Criminal Code for a reduction in his parole ineligibility period.

The court conducted a judicial screening to determine if there was a "reasonable prospect" that a jury would unanimously reduce the period, considering factors such as his character, conduct in prison, the nature of the offence, victim impact statements, and his Indigenous background (Gladue factors).

The court found that the applicant had established a reasonable prospect, particularly given his Indigenous status, mental health conditions, and extended periods in segregation.

The application was granted, and a jury will be empanelled.

The defendant, Peter Cunnington, brought a motion seeking an order to stay or dismiss the plaintiff's action, or alternatively, to require the plaintiff to post security for defence costs pursuant to Rules 56.01 and 56.02 of the Rules of Civil Procedure.

The plaintiff, ordinarily resident in Michigan, opposed the motion.

The court found that the plaintiff's counsel had adequately responded to the demand regarding residency, thus declining to stay or dismiss the action under Rule 56.02.

However, the court determined that the defendant met the low onus under Rule 56.01(1)(a) by establishing the plaintiff's ordinary residency outside Ontario.

The plaintiff failed to provide sufficient evidence of assets in Ontario or a reciprocating jurisdiction to satisfy a potential costs order, relying on a hearsay affidavit from counsel.

While the claim was not deemed frivolous or vexatious under Rule 56.01(1)(e), the plaintiff, not being impecunious, failed to demonstrate a "real possibility of success" given significant causation and credibility issues.

The court also found the defendant's delay in bringing the motion was sufficiently explained and did not prejudice the plaintiff.

Consequently, the court ordered the plaintiff to post $15,000 as security for costs, prohibiting further steps in the proceeding until the security is posted.

The appellant, Vincent Bauer, appealed his conviction for three counts of sexual assault, alleging ineffective assistance of counsel.

The appeal focused on trial counsel's failure to effectively cross-examine the complainant, to put the appellant's denial of the allegations to the complainant, and to raise an unsupported automatism defence inconsistent with the appellant's instructions.

The court found that counsel's actions amounted to incompetence and resulted in a miscarriage of justice, rendering the verdict unreliable.

The appeal was allowed, convictions quashed, and a new trial ordered.

The parties resolved a motion regarding a late response to a Request to Admit on consent, leaving only the issue of costs to be decided.

The plaintiff had refused to consent to a short extension of time after the defendants' counsel inadvertently missed the deadline.

The court found that the plaintiff's refusal to consent to a reasonable extension request unnecessarily lengthened the proceedings, especially since the plaintiff had failed to obtain the required leave under the Construction Lien Act before serving the Request to Admit.

Costs were awarded to the defendants on a partial indemnity basis.

The applicant brought a motion for the immediate sale of the matrimonial home, financial disclosure, and to strike portions of the respondent's affidavit.

The respondent brought a cross-motion for temporary exclusive possession of the home.

The court ordered the respondent to provide a Form 13.1 Financial Statement, noting that financial disclosure is a fundamental and ongoing obligation.

The court declined to strike the affidavit paragraphs, finding them not prejudicial.

Finally, the court ordered the sale of the matrimonial home, finding that the applicant was experiencing financial hardship and the respondent failed to establish that the sale would cause prejudice or that he was entitled to exclusive possession.

The plaintiff brought a motion to strike the defendant's jury notice due to substantial delays in scheduling civil jury trials caused by the COVID-19 pandemic.

The action, arising from a 2006 motor vehicle accident, had been set down for trial since 2015.

The court granted the motion, finding that the anticipated delay of at least three more years for a jury trial constituted prejudice and that justice to the parties would be better served by proceeding with a judge-alone trial.

The plaintiffs brought a motion for summary judgment seeking specific performance of an Agreement of Purchase and Sale for a residential property.

The defendant vendor attempted to unilaterally terminate the agreement and failed to close the transaction, arguing that the closing date fell on a holiday and no agreement was reached for a new date.

The court found that the defendant committed an anticipatory breach and that the plaintiffs were ready, willing, and able to close on the next business day.

The court granted summary judgment and ordered specific performance, finding the property was uniquely suited to the plaintiffs and damages would be inadequate.

The parties brought cross-motions for interim relief in a family law proceeding.

The applicant mother sought interim spousal support, imputation of income to the respondent, and financial disclosure regarding the respondent's rental properties.

The respondent father sought to impute income to the applicant, occupation rent, unrestricted access to the matrimonial home, a vocational assessment of the applicant, and shared decision-making authority.

The court ordered the respondent to pay interim spousal support of $2,413 per month, declining to impute income to the applicant who had been a stay-at-home mother since 2007.

The court ordered the respondent to provide appraisals for his 15 rental properties and bank statements.

The respondent's requests for occupation rent and unrestricted access to the home were dismissed.

The court varied the interim parenting order to grant primary residence and decision-making responsibility to the applicant, while increasing the respondent's parenting time.

The plaintiffs brought a motion to amend their statement of claim to add 17 individual employees of a long-term care home as defendants in a personal injury action.

The defendants brought a cross-motion to strike the pleadings against the individual employees, arguing the pleadings failed to disclose a reasonable cause of action against them personally.

The court granted the plaintiffs' motion to add the defendants, finding no non-compensable prejudice or abuse of process.

However, the court also granted the defendants' cross-motion to strike the pleadings against the individual employees because the statement of claim lumped them together without specifying the material facts of each individual's alleged negligence.

The court granted the plaintiffs leave to amend the pleadings to cure the deficiencies.

The applicant father brought a motion to find the respondent mother in contempt of a temporary parenting order after she withheld access to their child.

The mother withheld access pending a police and Children's Aid Society investigation into suspected child abuse, which was ultimately closed without charges.

The court dismissed the contempt motion, finding the mother had a reasonably held belief and legitimate justification for withholding the child.

The court also dismissed the father's requests to change primary residence, order joint custody, and restrict the maternal grandmother's contact, finding insufficient evidence of parental alienation or compelling reasons to vary the interim order.

The defendant brought a motion to set aside the administrative dismissal of his counterclaim for defamation.

The action and counterclaim had been dismissed for delay under Rule 48.14.

The court applied the Reid factors and a contextual approach, finding that the defendant failed to provide a reasonable explanation for the delay, relying only on a lawyer's hearsay affidavit rather than direct evidence.

The motion to set aside the dismissal was dismissed.