P.J. Flynn

The accused, charged with attempted murder and discharging a firearm, applied for a pre-trial ruling to admit his prior consistent statements made to police during and after his arrest.

He argued the statements were spontaneous and probative of his state of mind at the time of the offence under the Edgar exception.

The Crown opposed, arguing the statements lacked spontaneity because the accused had already spoken to friends and a crisis negotiator before being confronted by police.

The court agreed with the Crown, finding the statements were not genuine reactions to the accusation but expressions of hope regarding the case's outcome.

The application was dismissed.

The appellant appealed his summary conviction for operating a motor vehicle with a blood alcohol concentration over 80 milligrams.

He argued the trial judge erred in findings of fact and credibility, and that his rights under ss. 8 and 10(b) of the Charter were breached.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's global assessment of credibility, which concluded the appellant had fabricated evidence.

The court also upheld the finding that the officer had reasonable suspicion to make an ASD demand based on the odour of alcohol.

The parties separated in 2016 and proceeded to trial to resolve child support and equalization of net family property.

The court found the respondent was underreporting his income from his flooring business by doing cash jobs, and imputed his income at $90,000 for child support purposes.

The court calculated child support arrears at $34,428.

For equalization, the court valued the parties' assets and debts, resulting in the applicant owing an equalization payment of $24,833.12 to the respondent.

The claims for divorce were severed to proceed uncontested.

The plaintiff landlord brought a motion for summary judgment for rental arrears against the tenant, Nightingale HealtheNet Canada Corporation (NHCC), and its parent company, Nightingale Informatix Corporation (NIC).

The plaintiff argued that NIC was liable based on equitable assignment or part performance, as NIC had paid rent for NHCC for a period after NHCC became financially unviable.

The court granted summary judgment against NHCC but dismissed the claim against NIC, finding no written agreement, guarantee, or sufficient acts of part performance to bind the parent company to the lease obligations.

The court also declined to pierce the corporate veil.

The plaintiff brought a motion for summary judgment based on a fraudulent overbilling scheme, and the defendant brought a cross-motion for production of financial records referred to in the plaintiff's forensic accounting report.

The court granted summary judgment to the plaintiff on liability, as the defendant admitted to participating in the scheme.

However, the court granted the defendant's motion for document production, finding the records relevant to the defendant's argument that the plaintiff suffered no actual loss because the losses were covered by other over-inflated invoices.

The moving party (respondent in the main proceeding) brought a motion to set aside a final order that struck his pleadings and released the proceeds of the sale of the family home to the responding party.

The court dismissed the motion, finding it lacked jurisdiction as the proper route to challenge a final order is an appeal to the Court of Appeal or Divisional Court.

In the alternative, the court held that the motion would be dismissed on the merits due to the moving party's recalcitrant conduct, failure to comply with disclosure orders, and failure to provide evidence supporting his claims.

Costs were awarded to the responding party.

The defendants brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing the plaintiff had insufficient assets in Ontario to pay a costs award.

The plaintiff provided uncontested affidavit evidence demonstrating ownership of two properties in Ontario with a combined net worth of $291,000.

The court found this sufficient to pay the defendants' costs if required and dismissed the motion, awarding costs to the plaintiff.

The defendant moved to set aside a default judgment of $50,000 and vacate a notice of garnishment.

The defendant had acknowledged the debt and offered a repayment plan but failed to defend the action.

He ignored the default judgment for over six months until garnishment was served on his corporation.

The court applied the five-factor test for setting aside default judgments and found that the defendant deliberately delayed and failed to provide a plausible explanation.

The motion was dismissed, and costs of $5,500 were awarded to the plaintiff.

The appellant appealed his convictions for dangerous driving, driving while disqualified, and breach of probation, arguing that the trial judge misapprehended the evidence of a defence witness and improperly assessed credibility.

The Superior Court of Justice dismissed the appeal, finding no material misapprehension of evidence and deferring to the trial judge's reasonable findings of fact and credibility assessments.

The plaintiffs were entirely successful on a motion to add a proposed defendant after the expiry of the limitation period.

Both sides sought costs of the motion.

The proposed defendant argued that the plaintiffs' conscious decision not to add him within the limitation period caused the motion.

The court found that the proposed defendant's insurer chose to oppose the motion rather than pleading the limitation period and bringing a summary judgment motion, effectively giving itself two chances to defeat the claim.

The court awarded partial indemnity costs to the plaintiffs, fixed at the exact amount the proposed defendant had claimed as reasonable costs if he had been successful.

Following the dismissal of the plaintiff's action after a 2.5-day trial, the successful defendants sought costs.

The court found no conduct warranting substantial indemnity costs and no relevant offers to settle.

Applying the principle that costs must be fair and reasonable in line with the losing party's expectations, the court noted the plaintiff's own costs outline was over $44,000.

The court fixed the defendants' costs at $30,000 on a partial indemnity basis.

The plaintiff brought an action against the estate of his deceased former common-law partner, seeking a declaration that he was the beneficial owner of two cottage properties registered in her name.

The parties had executed a cohabitation agreement in 1993 that established a separate property regime.

In 2010, the plaintiff directed that the properties be transferred into the deceased's name.

He alleged that she held them in trust for him, but no written declaration of trust was ever signed.

The court found that the plaintiff failed to prove the existence of a trust on a balance of probabilities, noting conflicts in the evidence and the application of the Statute of Frauds.

The action was dismissed.

The court determined costs following a motion in which the defendants were completely successful.

The defendants sought partial indemnity costs prior to an offer to settle and substantial indemnity costs thereafter, totaling $9,356.10.

The plaintiff challenged the time billed by defence counsel and argued the work performed was neither reasonable nor proportional.

The court found the plaintiff’s motion ill‑conceived and concluded the successful party would reasonably expect significant costs.

Costs were fixed at $7,500 as a fair and reasonable amount payable by the plaintiff.

Following a civil trial involving a dispute between the plaintiff and one defendant, the successful defendant sought recovery of legal costs totaling $62,762.36 based on partial and substantial indemnity, relying in part on offers to settle delivered shortly before trial.

The plaintiff conceded entitlement to costs but argued the amount claimed was excessive and that certain docketed time, including attendance of a student at trial, was unnecessary.

The court found the case relatively simple and rejected the request for substantial indemnity costs based on late offers to settle.

However, the court held the plaintiff’s conduct at trial warranted more than partial indemnity costs.

A lump sum costs award of $47,000 inclusive was fixed and ordered payable within 30 days.

The responding mother brought a motion to change a 2005 final order respecting child support and section 7 expenses.

She sought retroactive child support and contributions toward the adult children’s university expenses.

The court found material change based on increased parental incomes and the children’s enrolment in post‑secondary education.

Applying the principles governing retroactive support, the court limited retroactivity to three years prior to the motion and rejected allegations that parent‑child alienation justified denying support.

The father was ordered to pay arrears for education and section 7 expenses and ongoing limited support for one child until April 2016.

The Crown brought a motion to strike portions of a statement of claim arising from alleged mistreatment during the plaintiff’s incarceration at provincial correctional facilities.

The court held that most claims were barred for failure to comply with the mandatory notice requirement in s. 7 of the Proceedings Against the Crown Act, which requires written notice at least 60 days before commencing an action.

The plaintiff provided notice only after issuing the claim, rendering the pleaded tort, Charter, and other allegations nullities.

Only a negligence claim relating to a slip-and-fall incident survived because written institutional records sufficiently identified that occurrence.

Claims for punitive, aggravated, exemplary, Charter, and treaty-based damages were struck, and improperly named institutional defendants lacking legal status were dismissed.

In a family law motion, the applicant sought findings of contempt relating to alleged breaches of prior court orders concerning property retrieval, vehicle maintenance obligations, and parenting exchange arrangements.

The court found the respondent in contempt for deliberately withholding certain listed household items contrary to a prior order requiring their surrender, but declined to find contempt regarding alleged failure to service a vehicle because the order was ambiguous and primarily required payment of operating expenses.

The court imposed a reduced monetary fine and directed the parties to arrange completion of the property transfer.

Requests to vary parenting transfer arrangements and for reimbursement of vehicle maintenance costs were dismissed.

The plaintiff sued a lawyer, alleging the lawyer acted for him on a mortgage transaction and breached trust obligations by disbursing $70,000 of the proceeds to a third party instead of the plaintiff.

The court dismissed the claim against the lawyer, finding that the plaintiff was actually represented by his spouse, who was also a lawyer, and that the defendant lawyer had followed instructions to disburse the funds.

The court made strong adverse credibility findings against the plaintiff and his spouse.

Judgment was granted against the third party who received the funds.

Following the defendants' complete success on a summary judgment motion, they sought costs of $13,897.75 on a partial indemnity basis.

The defendants had previously delivered an offer to settle that would have allowed the plaintiff to walk away without paying rent or costs.

The plaintiff's costs submissions were brief and lacked detail.

The court found the defendants' claim for costs to be fair and reasonable, awarding them the full amount sought.

Following the respondent's complete success on the application, the court determined the quantum of costs payable by the applicant.

The respondent sought costs but failed to deliver a Bill of Costs, and the applicant argued the respondent's Costs Outline showed exorbitant and duplicated time logged by multiple professionals.

Applying the principle that costs must be within the reasonable expectation of the losing party, the court agreed with the applicant's complaints regarding excessive time charges and fixed the respondent's partial indemnity costs at $15,000 all inclusive.