Michael G. Emery

The respondent father brought a motion to enforce the terms of a final order and sought costs.

The applicant mother opposed the motion and also sought costs, arguing she was substantially successful because the father only succeeded on two of the eleven terms he sought to enforce.

The court found the father was the successful party, noting that the breach of any term in a court order is one breach too many.

However, the court apportioned costs for divided success, discounting the father's partial indemnity costs claim by 60 percent and awarding him $6,400.

In a wrongful dismissal action, the moving party sought leave mid-trial to introduce a performance-rating grid that had not been disclosed in its affidavit of documents.

The court held that under Rule 53.08, leave was mandatory unless the late disclosure caused prejudice that could not be cured by costs or an adjournment, and found the prejudice here was not "baked in".

Leave was granted on terms including a mid-trial adjournment, a limited further examination for discovery, and broad latitude for re-examination.

Although the moving party succeeded on the motion, the responding party was awarded partial indemnity costs because the relief obtained was an indulgence made necessary by the moving party's disclosure default.

Following the dismissal of the corporate defendants' motion to set aside default judgments, the plaintiff and an added party sought costs.

They requested substantial indemnity costs and costs payable personally by the corporate director who authorized the motion.

The court found no reprehensible conduct to justify elevated costs and held it lacked authority to order costs against the director personally without proper notice.

The added party was denied costs as he lacked full party or intervener status.

The plaintiff was awarded partial indemnity costs fixed at $27,838.23 after reductions for excessive preparation time.

The corporate defendants brought a motion to set aside two default judgments obtained by the plaintiff landlord for arrears of rent and damages under a commercial lease.

The motion was brought by a director of the corporate defendants pursuant to leave granted under the Business Corporations Act.

The court applied the five-factor test for setting aside a default judgment and found that the defendants failed to bring the motion promptly after learning of the judgments, failed to provide a plausible explanation for the delay in setting the motion down for a hearing, and failed to establish an arguable defence on the merits.

The motion was dismissed.

The applicant was unsuccessful on her motion for exclusive possession of the matrimonial home.

The respondent sought costs of $13,702.77 as the successful party.

The court considered the factors under Rule 24(11) of the Family Law Rules, including the importance and complexity of the issues, and the applicant's unreasonable behaviour.

The court awarded the respondent costs fixed at $8,000 on a partial indemnity basis, payable by a specified date or from the applicant's share of the proceeds of the sale of a jointly owned property.

Following the dismissal of a motion for leave to appeal an interim family law order, the successful self‑represented respondent sought costs.

The applicant opposed any award, arguing the respondent provided no proof of legal fees, that she had not sought costs herself, and that an award would harm her family finances.

The court applied Family Law Rule 24 and the principles governing costs for self‑represented litigants, confirming that such parties may receive a reasonable allowance where they perform work ordinarily done by counsel.

After assessing the time claimed and relevant jurisprudence, the court reduced the hourly rate and awarded modest partial indemnity costs.

Economic hardship was not considered a relevant factor in the circumstances.

The accused was charged with sexual assault and sexual interference arising from an alleged incident involving a young child relative in 2003.

The complainant testified that the memory of the alleged assault resurfaced approximately eight years later.

Applying the credibility framework in R. v. W.(D.), the court assessed whether the Crown had proven the allegations beyond a reasonable doubt.

The judge expressed concerns about the reliability of the recalled memory and the absence of corroborative or expert evidence regarding memory recovery.

On the totality of the evidence, the Crown failed to meet the burden of proof and the accused was acquitted on both counts.

The applicant spouse brought a motion for exclusive possession of the matrimonial home under s. 24(3) of the Family Law Act, alleging that the respondent’s aggressive conduct and her declining health made continued cohabitation intolerable.

The respondent denied the allegations and argued the motion was strategic within the broader family law litigation.

The court reviewed the statutory factors under s. 24(3), including financial circumstances, written agreements, alternative accommodation, and alleged violence.

The evidence consisted of sharply conflicting affidavits, and the court found insufficient reliable evidence to establish psychological violence or other statutory grounds warranting exclusive possession.

The applicant therefore failed to meet the burden of proof on a balance of probabilities.

Former spouses brought competing motions to change and enforce a prior consent divorce order concerning child support and section 7 expenses.

The respondent sought quantification of the moving party’s share of post‑secondary education expenses for an adult child so the amount could be enforced through the Family Responsibility Office.

The moving party sought reimbursement for certain education expenses and a variation of ongoing child support for the younger child based on alleged material changes.

The court held that the parties’ consent order requiring equal sharing of section 7 expenses prevailed over proportional income arguments and assessed which claimed expenses were legitimate.

The court quantified each party’s obligations, reduced ongoing child support following the older child ceasing to be a child of the marriage, and ordered a net payment after credits.

The applicant sought a stay of an interim family arbitration award permitting the respondent to list and sell the matrimonial home prior to trial.

The court considered whether it had jurisdiction to grant a stay pending an appeal of the arbitration award and concluded that jurisdiction arose under s. 134(2) of the Courts of Justice Act.

Applying the RJR‑MacDonald test, the court found the appeal raised a serious issue regarding whether the arbitrator failed to address relevant grounds relating to the applicant’s claimed beneficial interest in the property through constructive or resulting trust.

The court determined that an immediate sale could cause irreparable harm by undermining the applicant’s proprietary claims and development potential of the property.

The balance of convenience narrowly favoured preserving the status quo pending the appeal or arbitration trial.

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside earlier trial management orders.

The defendants argued the earlier orders should be set aside due to a reasonable apprehension of institutional bias, as the judge who made them was the supervising judge for deputy small claims judges in the region, and the plaintiff's counsel was a deputy judge.

The motions judge had dismissed the motion on the basis of issue estoppel.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and concluding that the issue of institutional bias in these circumstances is a matter of general importance to the administration of justice.

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside two trial management orders.

The defendants argued that the original judge who made the trial management orders later recused himself due to a reasonable apprehension of bias, as he was the supervising judge of deputy small claims judges and the plaintiff's counsel was a deputy small claims judge.

The motions judge dismissed the motion to set aside on the basis of issue estoppel, finding the Divisional Court had already dealt with the bias issue.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and finding the issue of institutional bias to be a matter of general importance.

A confirmation hearing was held under ss. 18–19 of the Divorce Act regarding a provisional order issued by the Supreme Court of British Columbia varying child support obligations between former spouses.

The responding party opposed confirmation of a provision offsetting child support arrears, arguing that outstanding arrears and unpaid section 7 educational expenses remained unresolved and that the moving party had failed to provide required financial disclosure.

The court found the evidentiary record insufficient to determine the proper calculation of arrears and proportional contributions to post‑secondary expenses.

Pursuant to s. 19(6) of the Divorce Act, the court remitted the matter to the issuing court in British Columbia for further evidence and adjourned the confirmation hearing.

The applicant mother sought leave to appeal an interim family law order requiring that the parties’ child reside within the attendance boundaries of her current school.

The interim order had been made in the context of a motion to change a prior consent order governing custody, parenting, and relocation.

The court applied the strict test for leave to appeal under Rule 62.02(4) and found no reason to doubt the correctness of the interim order, which preserved the existing parenting regime pending a full determination.

The proposed appeal raised issues specific to the parties and did not involve matters of general or public importance.

Leave to appeal was therefore refused.

Following a trial where the plaintiff obtained judgment on a promissory note and successfully defended a counterclaim alleging fraud, the court determined costs.

The plaintiff and its principal were awarded substantial indemnity costs of $115,530.26 because the plaintiff beat its Rule 49 offer to settle and the defendants made unfounded, seriously prejudicial allegations of fraud.

The third-party real estate broker and his brokerage, who also successfully defended the counterclaim, were awarded partial indemnity costs of $60,047.28, as there was no clear finding of reprehensible conduct against them to justify elevated costs.

Following the dismissal of the plaintiffs' $7.5 million action for negligent enforcement of a sign by-law, the successful defendant municipality sought costs on an elevated partial indemnity basis.

The plaintiffs argued for a distributive costs order or no costs, claiming the action was public interest litigation.

The court rejected the public interest argument and declined to make a distributive costs order, but reduced the defendant's fees by 25% to account for time spent on an unsuccessful defence regarding a 1988 by-law.

The court also declined to award elevated costs, finding no reprehensible conduct by the plaintiffs.

Costs were fixed at $275,000 for fees and $79,510.26 for disbursements.

A proposed purchaser under an agreement of purchase and sale sought leave to intervene in a mortgage enforcement proceeding where the defendants had brought a motion to stay a power of sale and sought relief from forfeiture.

The court considered Rule 13.01 of the Rules of Civil Procedure governing intervention by added parties.

The proposed intervenor demonstrated a real interest in the litigation because the outcome could affect his contractual right to complete the purchase of the property and his submissions would assist the court in assessing issues including fair market value.

The court found that at least one of the disjunctive criteria under Rule 13.01(1) was met and that intervention would not unduly delay or prejudice the proceedings.

Leave to intervene as an added party on the defendants’ motion was granted.

Following a successful motion for leave to amend a statement of defence and counterclaim, the moving party sought substantial indemnity costs.

The opposing party had argued the amendments were statute-barred and legally untenable.

The court held that substantial indemnity costs are reserved for rare cases involving reprehensible conduct or where an offer to settle justifies such an award, neither of which was present.

Applying the factors under Rule 57.01 and s.131 of the Courts of Justice Act, the court fixed costs on a partial indemnity basis and reduced the claimed time by disallowing duplicative counsel time.

Costs of $5,000 plus disbursements and HST were awarded.

Following the dismissal of the plaintiffs’ action on a summary judgment motion, the successful defendants sought costs.

The plaintiffs argued that no costs should be awarded due to financial hardship and requested that any costs order include limited monthly payments and enforcement restrictions.

The court reviewed the principles governing costs under s. 131 of the Courts of Justice Act and authorities addressing whether impecuniosity should influence a costs award.

The court held that economic hardship did not justify departing from the general rule that costs follow the event and found the plaintiffs’ claims to be ill‑conceived.

Costs were awarded to the defendants, including a reduced amount for one defendant who retained separate counsel shortly before the motion hearing.

The applicant railway company sought a declaration that its railway right‑of‑way lands were exempt from municipal taxation under s. 315(1) of the Municipal Act, 2001, on the basis that the lands were leased to another entity for valuable consideration.

The court examined the contractual arrangements between the railway owner, a rail users’ consortium, and a licensed rail operator governing the operation and maintenance of the railway line.

Applying principles distinguishing leases from licences, the court held the agreements did not grant exclusive possession or create a landlord‑tenant relationship but instead resembled a joint venture or operational arrangement.

The court further found that the consortium did not pay rent or other valuable consideration within the meaning of the statute.

As a result, the railway lands were not exempt from municipal taxation.