Paul Marshall

The accused was charged with two counts of assaulting his domestic partner during a period of relationship breakdown.

The first count alleged an assault in the garage, which the court dismissed due to reasonable doubt arising from credibility issues and the defence's failure to cross-examine the complainant on key details.

The second count involved the accused swatting a mobile phone out of the complainant's hand while she was filming him.

The court found that while this technically constituted an assault, the force used was trifling and applied the doctrine of de minimis non curat lex to acquit the accused.

The defendant sought costs following a motion that resulted in a consent order requiring the plaintiff to vacate a property, cooperate in its sale, and discharge a certificate of pending litigation.

The court considered the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, including indemnification of successful litigants, encouragement of settlement, and discouragement of inappropriate conduct.

The court found that the defendant was compelled to bring the motion due to the plaintiff’s failure to communicate her willingness to vacate the property and cooperate with the sale, which caused delay and required an extension payment to the purchaser.

The defendant was therefore entitled to partial indemnity costs.

Costs were fixed at $7,350 plus HST and disbursements, payable from the plaintiff’s share of the net proceeds of sale.

The applicant trustee in bankruptcy sought a declaration of entitlement to settlement funds held by a solicitor.

The funds resulted from a fraudulent conveyance action commenced by a judgment creditor against the bankrupt and his wife after the assignment in bankruptcy, without leave of the court.

The court held that the action was subject to the stay of proceedings under s. 69.3 of the Bankruptcy and Insolvency Act and that the settlement funds represented the proceeds of the bankrupt's interest in the property.

The trustee was granted the balance of the funds after accounting for a valid solicitor's lien.

A costs decision arising from a motion to change a separation agreement regarding child support and shared nanny expenses.

The respondent brought a motion to remove the applicant's counsel based on an alleged conflict of interest.

The motion was ultimately withdrawn after court attendances and preparation of materials.

The court awarded costs to the applicant for the wasted attendance at a case conference and the motion hearing, finding that the respondent's counsel unreasonably delayed raising procedural issues and failed to follow proper procedures to minimize costs and delay.