Peter B. Hambly

The moving party mother brought a motion to change a previous child support order, seeking an increase based on the responding party father's 2014 income.

The father had since left his employment and started his own construction business, with a current projected income significantly lower than his 2014 earnings.

The court accepted the evidence of the father's new wife regarding the business's finances and found that the mother failed to demonstrate a material change in circumstances or that the father was hiding income.

The motion to change was dismissed with no order as to costs.

An application was brought by a daughter against her brother, as estate trustee, seeking an order that a house, which passed to the brother by right of survivorship, be held in trust for the beneficiaries of their father's Will.

The applicant argued for a resulting trust, asserting that the father did not intend to gift the beneficial interest in the property to the brother.

The court examined the father's intention at the time of transfer, considering evidence from the father's solicitor and the services provided by the brother.

The application was dismissed, as the court found abundant evidence that the father intended the brother to have the entire beneficial interest in the house upon his death.

The plaintiffs sought prejudgment interest (PJI) from September 30, 2009, the date the cause of action arose, rather than September 1, 2011, the date the statement of claim was issued, despite the latter yielding a higher prescribed rate.

The court, relying on its prior judgment, found the defendant Ashton Pools liable for inadequate concrete base installation causing patio cracking.

Applying sections 128-130 of the Courts of Justice Act and principles that PJI compensates for loss of money use, the court awarded PJI from the cause of action date, September 30, 2009, until May 2, 2016, in the amount of $1,195.45, plus post-judgment interest.

This ruling addresses costs arising from three summary judgment motions in consolidated actions.

In the first motion, B-W Feed & Seed Ltd. (BWFS) successfully dismissed a third-party claim by Stargate Manufacturing Inc., with the court finding BWFS owed no duty of care to Stargate.

BWFS was awarded partial indemnity costs of $33,458 against Stargate.

In the second motion, Stargate successfully defended a summary judgment claim brought by BWFS as plaintiff, and was awarded partial indemnity costs of $13,186.34 against BWFS.

In the third motion, Zehr Transport Ltd. successfully defended a summary judgment motion by Transit Trailer Limited, which sought to dismiss Zehr's action for breach of contract, warranty, and negligence.

Zehr was awarded partial indemnity costs of $13,159.30 against Transit.

The court emphasized the principle of reasonableness in fixing costs, considering factors under Rule 57.01, and reiterated that elevated costs (substantial indemnity) are generally reserved for egregious misconduct, not merely an offer to settle outside Rule 49.10.

Homeowners brought a claim against a swimming pool installer for breach of contract regarding the installation of a pool and concrete patio that developed significant cracks due to inadequate base material and insufficient control joints.

The court found the installer liable for breach of express and implied warranties, rejecting the installer's reliance on exclusion clauses because the onerous terms were not brought to the homeowners' attention.

Damages were awarded for patio replacement, driveway repair, and other deficiencies.

The installer's counterclaim for extras and its third-party claim against the concrete supplier were dismissed.

This case involved three motions for summary judgment arising from two consolidated actions following a dump trailer tipping incident.

B-W Feed & Seed Ltd. (BWFS) moved to dismiss a third-party claim by Stargate Manufacturing Inc. and also for summary judgment against Stargate.

Transit Trailer Limited moved to dismiss an action against it by Zehr Transport Ltd. The court granted BWFS's motion to dismiss Stargate's third-party claim, finding no cause of action.

However, BWFS's motion for summary judgment against Stargate was dismissed due to complex factual issues requiring a trial.

Transit's motion for summary judgment against Zehr was also dismissed, as Zehr raised triable issues regarding breach of implied conditions under the Sale of Goods Act, manufacturer's warranty, and Transit's duty to warn.

Two related vendor companies applied for payment of holdback funds following the sale of land, building, and an industrial gas business to the purchaser.

The agreements required the vendors to obtain a zoning compliance letter satisfactory to the purchaser and permitted indemnity holdbacks for breaches relating to the property.

The purchaser refused to release the funds after concluding the business did not comply with municipal zoning restrictions and incurred relocation costs.

The court held the purchaser acted reasonably and in good faith in relying on professional advice and exercising contractual discretion under the holdback provisions.

Both applications were dismissed and the holdback funds were ordered released to the purchaser.

Following dismissal of a civil action against a casino operator arising from a fraudster gambling stolen funds, the defendant sought partial indemnity costs of the action.

The plaintiffs argued the case raised a novel legal issue and that awarding costs would unfairly compound the losses already suffered through the fraud.

The court considered the access to justice principles discussed in Boucher v. Public Accountants.

In the circumstances, the court exercised its discretion to decline awarding costs.

No costs were ordered despite the defendant’s success in the underlying action.

A ruling on costs following a motion concerning severance of civil claims.

The responding party successfully defended the motion and sought costs on a partial indemnity basis.

The court considered the principles governing cost awards, including reasonableness and access to justice, and applied guidance from appellate authorities regarding the summary assessment of counsel fees.

The court rejected arguments that the successful party improperly used two lawyers or duplicated work.

Costs were fixed and ordered payable by certain defendants.

The moving defendants sought an order requiring that the plaintiff’s claims against them be asserted in a separate proceeding pursuant to Rules 5.02 and 5.05 of the Rules of Civil Procedure.

The action alleged two related kickback and fraud schemes involving a company executive who allegedly conspired with different subcontractors.

The moving parties argued that the claims concerning the two schemes should be severed.

The court held that the claims were properly joined because they involved a common participant, similar modus operandi, and overlapping factual and legal issues.

Severance would create unnecessary complexity and could require similar fact evidence to be litigated in separate proceedings.

The accused applied under s. 24(1) of the Charter for a stay of fraud charges, alleging a breach of their right to be tried within a reasonable time under s. 11(b).

The court reviewed the procedural history from the laying of charges in May 2011 to the scheduled trial date in September 2013 and assessed competing characterizations of delay, including alleged Crown delay, institutional delay, and inherent time requirements of the case.

The applicants argued that the Crown improperly laid a breach of trust charge which generated unnecessary disclosure and delay.

The court rejected that argument, finding the Crown had a reasonable prospect of conviction on the breach of trust count and that much of the delay was attributable to the inherent complexity of the case and permissible institutional delay.

Applying the framework from Morin, the court concluded the institutional delay fell within acceptable ranges and that any prejudice suffered by the accused primarily resulted from the charges themselves rather than delay.

A grandmother sought access to her grandchildren and previously brought a motion requesting the appointment of the Office of the Children’s Lawyer to conduct a social work investigation.

The motion was denied and the parents, who successfully opposed the motion, sought costs after retaining a lawyer for limited assistance while otherwise remaining self‑represented.

The court considered the limited documentation supporting the fee claim, the practical realities facing self‑represented litigants, and the complexity of the background issues.

The court acknowledged the broader access to justice concerns highlighted by the Supreme Court of Canada in Hryniak v. Mauldin.

Costs were fixed at $1,500 payable by the moving party to the parents.

This brief endorsement addendum concerns an amendment to the title of proceedings in a family law matter before the Superior Court of Justice.

The court directed that the style of cause be amended to properly reflect the parties as listed.

The decision does not address substantive issues but corrects the formal caption of the proceedings to ensure accuracy in the court record.

A maternal grandmother brought a motion seeking the appointment of the Office of the Children’s Lawyer to conduct a social work assessment in support of her application for access to three grandchildren.

The parents opposed the request and maintained that they were providing appropriate care and had decided the grandmother should not have access.

The court reviewed the statutory framework under the Children’s Law Reform Act and the Courts of Justice Act, along with appellate authority emphasizing judicial deference to parental decisions absent evidence of harm or parental unfitness.

The court held that ordering an OCL investigation would be intrusive, time‑consuming, and of limited probative value given the young ages of the children and the nature of the dispute.

The requested referral was therefore not in the best interests of the children.

The accused, a police constable, was convicted after a retrial of breach of trust under s. 121 of the Criminal Code for leaking confidential police intelligence documents to members of the Hells Angels through an intermediary.

The leaked materials included sensitive intelligence bulletins and the identity of a confidential informer during a joint forces investigation targeting organized crime.

At sentencing, the court emphasized that police officers occupy a position of exceptional public trust and that general deterrence and denunciation are paramount sentencing principles for breaches of that trust.

The court considered case law involving corruption by police and other public officials and concluded that a penitentiary term was required.

A conditional sentence was rejected as inconsistent with denunciation and deterrence given the seriousness of the conduct and its impact on police operations and informer protection.

The appellant appealed convictions for assault and assault with a weapon arising from a brief domestic confrontation involving his teenage daughter.

The trial judge found that the appellant angrily threw an empty plastic bottle and grabbed the complainant, rejecting a defence based on parental corrective force under s. 43 of the Criminal Code.

On appeal, the court held that the trial judge failed to properly analyze whether the thrown bottle constituted a weapon and whether injury was reasonably foreseeable.

The court also found that the trial judge failed to properly apply the reasonable doubt framework in assessing the appellant’s evidence and the corrective force defence.

The convictions were set aside and acquittals entered, as a new trial was not in the public interest.

Following a successful summary judgment for wrongful dismissal, the court determined costs and entitlement to prejudgment interest.

The plaintiff had obtained judgment substantially exceeding a prior settlement offer, engaging Rule 49 cost consequences.

The defendant argued the plaintiff should receive no costs due to procedural deficiencies and contested the rate and entitlement to prejudgment interest after filing a notice of appeal.

The court rejected these arguments, finding the defence conduct unreasonable and confirming that the trial court retained jurisdiction to address prejudgment interest prior to formal entry of judgment.

Costs of $21,000 were awarded and prejudgment interest ordered from the date the cause of action arose.

The defendant moved for summary judgment dismissing a civil action alleging misuse of personal financial information obtained from court filings in related family litigation.

The plaintiffs claimed that the defendant, a mortgage broker associated with the former spouse of one plaintiff, provided their financial information to a third‑party lender without consent, leading to the creation of a financing letter later used in court proceedings.

The defendant argued the claim disclosed no cause of action and was barred by the two‑year limitation period.

The court held that the pleadings could potentially support the tort of intrusion upon seclusion as recognized in Jones v. Tsige and that alternative legal characterizations of pleaded facts do not create a new cause of action outside the limitation period.

It was not plain and obvious that the action would fail, and the defendant’s motions for dismissal for delay and summary judgment were dismissed.

Former spouses brought competing motions to vary custody, access, and support provisions of a prior divorce order.

The moving party sought joint custody, expanded parenting time, elimination of child support, and rescission of arrears, while the responding party sought restrictions on access and an order declaring the moving party a vexatious litigant.

Applying s. 17 of the Divorce Act and the test from Gordon v. Goertz, the court found no material change in circumstances justifying modification of custody or shared residence.

The court accepted that the child’s diagnosis of autism spectrum disorder constituted a material change warranting adjustments to access arrangements.

The court recalculated child support under the Federal Child Support Guidelines, fixed arrears, ordered significant costs enforceable as child support, suspended enforcement of arrears to avoid loss of the payor’s employment, and declared the moving party subject to a leave requirement for further proceedings under s. 140 of the Courts of Justice Act.

Following a family law trial, the court determined costs where the applicant had been self-represented.

The applicant sought broader recovery, including reimbursement of legal fees previously paid to counsel and relief related to family debts discharged in the respondent’s bankruptcy.

The court held that costs cannot be used to indirectly redistribute property or circumvent the legal consequences of bankruptcy.

While the applicant achieved a better result than the respondent’s trial offer, recovery for a self‑represented litigant was limited to reasonable disbursements directly related to trial attendance.

The court awarded modest disbursements for purchases, parking, and mileage.