Pierre E. Roger

Following a successful application for wrongful dismissal where the applicant was awarded ten months' notice, the parties could not agree on costs.

The applicant sought $74,524.59 on a substantial indemnity basis, while the respondent argued for partial indemnity costs of approximately $30,000.

The court found that neither party's offers to settle triggered Rule 49.10 and that substantial indemnity costs were not warranted.

The court awarded the applicant costs on a partial indemnity basis for the application, a motion to amend, and an abandoned motion to compel, fixing the total all-inclusive costs at $47,000.

Following the dismissal of the defendants' motion for summary judgment in a simplified procedure action regarding the destruction of a tree, the self-represented plaintiff sought costs.

The defendants argued she was not entitled to costs as a federal public servant who allegedly suffered no lost income.

The court applied the principles from Fong v. Chan and Benarroch, finding the plaintiff performed work ordinarily done by a lawyer and incurred an opportunity cost by using vacation time.

The court awarded the plaintiff $5,000 in costs, representing a reasonable allowance for her time and effort.

Following the dismissal of the defendant's motion for summary judgment, the parties could not agree on costs.

The plaintiff sought costs as the successful party.

The court reviewed the costs outlines, noted the motion was of average complexity, and found the amounts sought by both parties to be reasonable.

The court fixed the costs payable by the defendant to the plaintiff at $13,390, inclusive of fees, disbursements, and taxes.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding the defective construction of a storage building.

The defendants argued they owed no duty of care because they followed the plaintiff's specifications for ventilation, and that the action was statute-barred.

The court dismissed the motion, finding the defendants failed to meet their evidentiary burden to show there was no genuine issue requiring a trial regarding their duty of care and reliance.

The court also found the evidence did not establish the claim was discovered outside the two-year limitation period.

The applicant, a 36-year-old controller with six years of service, was terminated without cause.

The employer paid her statutory entitlements under the Employment Standards Act (ESA) and relied on the termination clause in her employment contract to deny common law notice.

The applicant brought an application arguing the termination clause was void.

The court found that the 'for cause' provision violated the ESA by allowing termination without notice for common law cause, which is a lower standard than the ESA's 'willful misconduct' standard.

Applying Waksdale, the court held that this rendered the entire termination clause void.

The court also found the 'without cause' provision independently violated the ESA by excluding benefits and bonuses during the notice period.

The court awarded the applicant 10 months of common law notice, less mitigation earnings and statutory amounts already paid.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action concerning the destruction of a large maple tree on a shared property line during their land development.

The plaintiff alleged intentional destruction, negligence (breach of duty of care arising from site plan agreement and by-laws), trespass, and nuisance.

The court dismissed the defendants' motion, finding that they failed to meet their evidentiary burden to demonstrate no genuine issue requiring a trial.

The court emphasized the inappropriateness of summary judgment in this simplified procedure action given the conflicting evidence, the lack of examinations for discovery, and the risk of inconsistent findings if the matter were to proceed to a summary trial.

The Corporation of the City of Kingston brought a motion for summary judgment to dismiss a trip and fall action by Darlene Petitpas.

The City argued the plaintiff's expert report was inadmissible and there was no genuine issue for trial.

The court found that the City, as the moving party, failed to meet its initial evidentiary burden by not providing evidence on the applicable standards for catch basin grates at the time of the fall (2018) or that the design/condition was in a proper state of repair at that time.

As the onus did not shift to the plaintiff, the motion for summary judgment was dismissed.

The plaintiff brought a motion to strike the defendants' jury notice in a slip-and-fall case where damages had been settled, leaving only liability at issue.

Due to the COVID-19 pandemic, civil jury trials in Ottawa were indefinitely suspended, causing significant delay.

The court granted the motion, finding that the indefinite delay constituted real and substantial prejudice, outweighing the defendants' right to a jury trial in the interest of timely access to justice.

This endorsement addresses the costs arising from a dismissed motion by the plaintiff to strike the defendant's Statement of Defence and Counterclaim and obtain a judgment for possession.

Despite the defendant's success on the underlying motion, the court ordered no costs.

The judge found the defendant's request for $450,000 in costs to be disproportionate and unreasonable, noting that the defendant's conduct unnecessarily lengthened the motion and their costs submissions lacked particulars and evidence of incurred loss.

The appellant, Kunal Tipu, appealed a decision of the Consent and Capacity Board that confirmed a Community Treatment Order (CTO) reissued by Dr. O’Brien.

The appellant argued the Board erred by implicitly concluding the CTO was properly renewed within the statutory timeframe and by not considering the impact of the Covid-19 pandemic on his ability to comply.

The court dismissed both grounds of appeal, finding no palpable and overriding error by the Board.

The court determined the CTO was properly issued/renewed and that evidence supported the appellant's ability to comply with the treatment plan during the pandemic.

The applicant sought an order declaring the respondent a vexatious litigant.

Despite being aware of the application and court date, the self-represented respondent failed to attend the initial hearing.

The court adjourned the application to a peremptory date and issued an interim order under section 139 of the Courts of Justice Act, prohibiting the respondent from initiating new actions or pursuing steps in existing ones without leave of a Superior Court judge until the application is heard.

The accused, a former foster mother, was charged with historical sexual assault and sexual exploitation of a former foster child.

The complainant alleged a sexual relationship occurred when he was a teenager living in the accused's care.

The accused testified and denied the allegations, providing plausible explanations for their relationship and interactions.

Applying the W.(D) framework, the court found the accused's evidence raised a reasonable doubt and noted significant inconsistencies and a lack of detail in the complainant's testimony.

The accused was acquitted on both counts.

In a criminal trial alleging historical sexual offences against a former foster child, the accused brought a lost-evidence application seeking a stay after police destroyed a 2002 written statement made by the complainant.

The court held that the statement was relevant disclosure and that the Crown failed to discharge its burden of showing the destruction did not result from unacceptable negligence, thereby establishing a s. 7 Charter breach.

However, the court found no substantial or material prejudice because the defence had extensive alternative material with which to cross-examine the complainant and test credibility.

A stay was refused, and the remedy granted was an inference that the lost statement would not have assisted the Crown, together with consideration of the missing statement in assessing the complainant's credibility and reliability.

The plaintiff bank brought a motion to strike the self-represented defendant's statement of defence and counterclaim in a mortgage enforcement action.

The plaintiff argued the pleadings disclosed no reasonable defence and relied on 'Freemen on the Land' arguments.

The court dismissed the motion, finding that under Rule 21, the facts in the pleading must be taken as true, and the defendant's denial of default could not be deemed patently ridiculous without evidence.

The court noted the plaintiff likely should have brought a motion for summary judgment instead.

The accused, a 65-year-old sports coach, was charged with sexual assault, sexual exploitation, and forcible confinement after allegedly giving a 17-year-old athlete a full-body massage at his home.

The accused testified that the massage was strictly for recovery purposes and denied any sexual touching or confinement.

Applying the W.(D.) framework, the court disbelieved the accused's evidence but found that the totality of the evidence, including timeline inconsistencies and contradictory text messages, left a reasonable doubt.

The accused was acquitted of all charges.

The appellant, an involuntary patient with schizophrenia, appealed a decision of the Consent and Capacity Board finding him incapable of consenting to treatment.

The appellant argued the Board applied the wrong legal test and made unreasonable findings regarding his risk of violence and appreciation of the treatment decision.

The Superior Court of Justice dismissed the appeal, finding the Board correctly applied the test from Starson v. Swayze and reasonably concluded that the appellant's condition prevented him from recognizing its manifestations and appreciating the consequences of his decision.

The Crown appealed a summary conviction acquittal of the accused on a charge of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams.

The trial judge had excluded the breath readings after finding a breach of the accused's s. 10(b) Charter rights because the officer did not facilitate the right to counsel while waiting for an Approved Screening Device to arrive.

The Superior Court of Justice allowed the appeal, finding the trial judge erred in law by failing to assess whether the accused had a realistic opportunity to consult counsel and by misapplying the s. 24(2) analysis.

The acquittal was set aside and a new trial ordered.

The plaintiff was successful on a motion to strike a jury notice due to the COVID-19 pandemic.

The parties agreed that $15,000 represented partial indemnity costs for the motion.

The defendants argued that costs should be reserved to the trial judge or reduced due to the novel facts and mixed results.

The court rejected these arguments, finding the plaintiff was largely successful and the applicable legal test was well-settled despite the novel factual context.

Costs of $15,000 were awarded to the plaintiff payable forthwith.

The appellant, representing himself, brought a motion requesting state-funded counsel and state-paid transcripts for his summary conviction appeal pursuant to sections 683(1) and 684(1) of the Criminal Code.

The court assessed the appellant's financial circumstances, noting he receives a federal pension, owns a home and vacant land with significant equity, and has access to financial help from family.

Finding that the appellant has sufficient resources to pay the estimated $14,000 for counsel and transcripts, and noting the apparent weakness of the appeal, the court concluded it was not in the interests of justice to grant the requests.

The motion was dismissed and a timetable for the appeal was set.

The parties appeared to settle the terms of an order following earlier motions regarding an insurance coverage dispute for water damage.

The court agreed with the defendant brokers to add wording dismissing the action against them concerning an inapplicable 'under construction' exclusion.

The court also stayed the disclosure of certain documents pending the insurer's motion for leave to appeal.