M.E. Vallee

The appellant appealed his conviction for failing to comply with a demand for a breath sample.

He argued the trial judge failed to apply the proper legal test for determining whether he possessed the requisite mens rea, specifically regarding whether he should have been given another opportunity to provide a sample.

The Superior Court of Justice dismissed the appeal, finding that the trial judge properly applied the relevant legal tests and that there was sufficient evidence to conclude the appellant wilfully refused to provide a breath sample by feigning his efforts.

Following a successful motion for summary judgment in a mortgage action, the plaintiff sought costs of $60,000 on a substantial indemnity basis, relying on the mortgage's standard charge terms and the defendants' unsuccessful allegations of fraud.

The court found the plaintiff's claimed legal fees were inflated due to excessive time docketed for administrative tasks and duplication of work.

The court also disallowed several disbursements for lack of supporting receipts.

Applying the principles of fairness and reasonableness, the court fixed the costs award at $40,956.90.

Following a ten-day trial where the plaintiffs were entirely successful in an easement and property damage dispute, the court determined the costs award.

The plaintiffs had made two offers to settle, both of which they beat at trial.

The court found the defendant's conduct in refusing a walk-away offer and proceeding to trial unreasonable.

Applying Rule 49, the court awarded partial indemnity costs up to the date of the first offer and full indemnity costs thereafter, fixing the total costs at $128,000.

The applicants brought an application for specific performance of an oral agreement for the respondents to store their furniture and paintings until they moved to Argentina.

The respondents claimed some of the antique furniture was given to them as a gift.

The court found the respondents failed to prove an intention to donate and ordered specific performance for the return of the items.

However, the court dismissed the applicants' claims for damages related to shipping containers and storage costs due to vague evidence.

The moving parties brought a motion to set aside an ex parte order that froze their bank accounts and required them to pay funds into court.

The court found that the responding parties failed to make full and fair disclosure of material facts when obtaining the ex parte order, specifically by providing misleading evidence regarding the urgency of the matter and the connection to a related action.

The court set aside the ex parte order, granting leave to bring the motion again on proper notice.

The moving party father brought a motion to reduce his child support and section 7 expense obligations under a temporary order, alleging a material change in circumstances due to a motor vehicle accident that temporarily reduced his income.

The court found that the father's injury and resulting inability to work were temporary, lasting only a few months, and did not constitute a significant or long-lasting change.

The court emphasized that variations of interim orders should be rare and require a substantial change in circumstances.

The motion was dismissed, and costs were awarded to the responding party mother on a partial indemnity basis.

The applicant mother brought a motion to compel the respondent father to provide direct access to his drug test results, which were required for his supervised access to their children.

The father consented to the substantive relief but opposed costs, alleging that the mother's counsel's staff acted fraudulently in contacting the testing lab.

The court found the fraud allegations to be unfounded and based on conflicting information.

Because the father's consent was not a compromise and he made serious, unsubstantiated allegations of deceit against opposing counsel, the court awarded the mother substantial indemnity costs for both the motion and the costs hearing.

Following an 11-week construction lien trial where the plaintiff recovered $254,464 after set-off, the plaintiff sought over $1.2 million in costs and disbursements.

The plaintiff had made a Rule 49 offer to settle for $217,000, which the defendants rejected.

The court assessed the reasonableness and proportionality of the costs, noting that while the costs far exceeded the recovery, applying a strict results-based proportionality would be unfair given the defendants' refusal to settle and the consequences of Rule 49.

The court reduced several expert disbursements but awarded the plaintiff total costs of $758,421.20.

The estate trustee sought clarification of a prior costs order arising from estate litigation between the trustee and a beneficiary.

The issue was whether the respondent beneficiary was required to pay the ordered costs to the trustee personally or in her representative capacity as estate trustee.

Applying the modern approach to costs in estate litigation, which generally follows ordinary civil costs principles unless public policy considerations apply, the court reaffirmed that the losing party must bear the costs personally.

The court concluded that the respondent beneficiary must pay the awarded costs directly to the applicant in her personal capacity.

Following dismissal of a Rule 21 motion to strike the statement of claim for failure to disclose a reasonable cause of action, the successful plaintiffs sought partial indemnity costs.

The responding party argued the requested amount was excessive given the straightforward nature of the pleadings motion, overlapping work among multiple lawyers and students, and hourly rates exceeding recommended partial indemnity guidelines.

The court accepted that the motion was significant and involved novel legal issues but found the plaintiffs had spent excessive time and improperly included hours related to amending the claim.

Applying principles of fairness and reasonableness in fixing costs, the court reduced the requested amount.

A lump sum costs award was granted to the successful plaintiffs.

Following success on a summary judgment motion in a fraudulent conveyance action, the self-represented plaintiff sought costs for the litigation.

The court reviewed principles governing costs awards to self-represented litigants, noting that such parties are not compensated as though they retained counsel but may recover a reasonable allowance for proven loss of opportunity cost.

Evidence demonstrated that the plaintiff’s professional income declined due to time spent conducting the litigation.

Applying fairness and proportionality principles, the court awarded a reduced allowance for the plaintiff’s time plus supported disbursements.

Following a motion for security for costs, the defendants sought additional costs related to the fees of former counsel and other related issues.

The court declined to increase the amount of security for costs because the defendants provided redacted accounts that failed to show the nature of the work performed, despite the court previously requesting such evidence.

The court also rejected arguments that a prior settlement offer should affect the costs analysis, as the amount ordered was lower than the offer and the conduct of the plaintiff did not justify substantial indemnity costs.

Additional costs requested for undertakings issues were also denied.

The previously ordered security and costs structure remained unchanged.

Following an unsuccessful defence motion for summary judgment on a discoverability issue in a motor vehicle accident action, the court addressed the appropriate quantum of costs payable to the plaintiff.

The plaintiff sought over $50,000 in partial indemnity costs.

The court found the requested fees excessive, noting duplication of work among multiple counsel and disproportionate time claimed by senior counsel who did not draft the materials.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized fairness, reasonableness, and the expectations of the parties.

Costs were reduced and fixed at a lump sum of $29,000 inclusive of fees, disbursements, and HST.

The Crown appealed an acquittal in an impaired driving prosecution where the trial judge found that police lacked reasonable and probable grounds to arrest and excluded breath samples under s. 24(2) of the Charter.

The trial judge had rejected several indicia of impairment due to inconsistencies in the officers’ testimony and concluded that odour of alcohol and poor driving provided only suspicion warranting a roadside screening demand.

The appeal court held that the trial judge erred by effectively conducting a full trial-level assessment of whether indicia actually existed rather than assessing whether the arresting officer reasonably believed an offence had been committed at the time of arrest.

Evidence of dangerous swerving combined with a strong odour of alcohol provided an objective basis for reasonable and probable grounds.

The arrest was lawful and the trial judge’s analysis improperly conflated the threshold for arrest with proof of impairment.

The applicant sought a stay of a driving prohibition imposed following a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml.

The stay was sought pending appeal, which alleged the trial judge erred in finding the breath samples were taken “as soon as practicable” and relied on facts not in evidence.

The court applied the established test for a stay pending appeal, requiring the applicant to show the appeal was not frivolous, that continuation of the prohibition was not necessary in the public interest, and that granting the stay would not undermine public confidence in the administration of justice.

The court found the appeal frivolous, noting the timeline showed police acted promptly and the first breath sample was taken well within the two‑hour limit contemplated by the Criminal Code.

The applicant also failed to demonstrate hardship or that the public interest favored suspending the prohibition.

The application for a stay was dismissed.

The Attorney General of Ontario brought a motion under the Civil Remedies Act for an order to preserve over $4 million, representing the sale proceeds of a commercial property.

The property had previously housed a massive, concealed marijuana grow operation run by tenants, and was later leased to a company involved in a U.S. stock fraud scheme.

The court found no issue estoppel from prior unsuccessful federal criminal forfeiture proceedings against the property owner.

While the court found reasonable grounds to believe the property was an instrument of unlawful activity due to the grow operation, it ultimately dismissed the preservation motion.

The court concluded that preserving the funds would clearly not be in the interests of justice, as the owner had no knowledge of or participation in the unlawful activities, making a preservation order manifestly harsh and draconian.

A long‑term employee brought a motion for summary judgment following termination for alleged insubordination related to sales to a delinquent customer.

The employer asserted just cause and argued that the written employment agreement providing twelve months’ notice was unenforceable.

The court found that the employment agreement was valid and enforceable, noting that the employer prepared the agreement, signed it, and implemented its terms, including a salary increase tied to the contract.

Applying the contextual approach to just cause for dismissal, the court held the alleged conduct did not amount to wilful disobedience or insubordination justifying summary termination, particularly given the employee’s exemplary record and lack of documented warnings.

Summary judgment was granted and the employee was awarded damages equal to twelve months’ salary pursuant to the contractual notice provision.

The plaintiff employer sought a Mareva injunction restraining a former employee from disposing of two real properties pending trial of a civil action alleging theft of funds.

The court considered whether the plaintiff had established a strong prima facie case, a real risk of asset dissipation, and that the balance of convenience favoured the injunction.

Evidence included an alleged written admission of theft and discovery testimony indicating an intention to transfer real property interests to a former partner.

The court found a strong prima facie case and a real risk that the defendant would dissipate assets before trial.

The balance of convenience favoured preserving the assets because they represented the defendant’s only significant property available to satisfy a potential judgment.