Denis J. Power

Addendum to reasons for decision correcting the allocation of sentence between offences in a criminal matter.

The court confirmed that the amended warrant of committal properly reflected the distribution of the total sentence across the offences.

The total custodial sentence remained seven years after applying four years of pre‑sentence custody credit.

The addendum clarified that the amended warrant accurately corresponds with the earlier reasons for decision.

The plaintiff brought an action against the Ottawa Police Services Board and two unnamed officers for trespass, intentional infliction of mental suffering, and misfeasance in public office after police entered her townhouse to execute an arrest warrant for her former boyfriend.

During the entry, the police shot and killed the plaintiff's two pit bulls and caused significant property damage.

The court dismissed the action, finding that the police entered under a valid warrant and authorization, and were protected from liability by section 25 of the Criminal Code because they acted on reasonable grounds and used no more force than necessary in a high-risk situation.

Following earlier reasons terminating spousal support retroactively, the court addressed the issue of costs.

The applicant, as the successful party, sought substantial costs relying on two settlement offers that were more favourable than the ultimate result and alleging unreasonable litigation conduct by the respondent.

The respondent argued that costs should be significantly reduced due to financial hardship and the alleged simplicity of the matter.

The court found that the respondent’s conduct unnecessarily increased litigation costs but expressed concern that the amount claimed was excessive for what was essentially a straightforward proceeding.

Costs were fixed globally at $25,000 payable by the respondent within 60 days.

The court determined costs following the dismissal of a summary judgment motion brought under Rule 20 of the Rules of Civil Procedure.

The plaintiff, as the successful party on the motion, sought full recovery of legal fees exceeding $9,000.

The moving defendants argued that no costs should be awarded or that costs should be in the cause, emphasizing that the motion was reasonably brought and that a key appellate authority relied upon by the court was released after the motion was argued.

The court found no evidence of unreasonable conduct or bad faith to justify substantial indemnity costs and instead awarded partial indemnity costs.

Costs were fixed at $5,500 payable forthwith.

The plaintiff real estate brokerage brought an action against the vendor, its principal, and the purchaser for an unpaid real estate commission.

The vendor and purchaser had entered into an agreement of purchase and sale during the listing period, which was later revived and closed under a different corporate purchaser name at the vendor's insistence to avoid paying the commission.

The court found that the commission was earned and payable under the listing agreement.

The court also held the vendor's principal and the corporate purchaser liable for intentional interference with contractual relations for their bad faith conduct in attempting to circumvent the commission.

The landlord brought a motion for a contempt order, vacant possession, and arrears of rent against the tenant.

The court previously granted vacant possession and arrears but dismissed the contempt request.

In this costs decision, the court noted divided success but awarded costs to the landlord, fixing them at $2,000 inclusive of fees, disbursements, and taxes.

Following the dismissal of the appellant's appeal, the parties initially agreed not to seek costs.

However, the self-represented appellant breached this agreement by filing costs submissions and seeking costs in his favour.

Consequently, the successful respondents sought and were awarded their costs on a partial indemnity scale, fixed at $5,000 for the University of Ottawa defendants and $1,000 for Dr. Weitzman.

The landlord brought a motion for a contempt order against the tenant for failing to vacate the residential premises as ordered by the Divisional Court after the tenant's appeal of a Landlord and Tenant Board eviction order was quashed.

The tenant argued he was not in contempt because he was exercising his right under s. 74(11) of the Residential Tenancies Act to void the eviction by paying arrears, and that the Superior Court lacked jurisdiction to order eviction.

The court held that it had jurisdiction under s. 210(5) of the Act and Rule 60.05 to order the tenant to vacate when disposing of an appeal.

However, the court declined to find the tenant in contempt, as he had acted on legal advice regarding the jurisdictional issue.

The contempt motion was adjourned.

The self-represented appellant appealed a Superior Court order striking his statement of claim without leave to amend.

The respondents moved to dismiss the appeal on grounds of lack of jurisdiction, delay, and being frivolous and vexatious.

The Divisional Court dismissed the appeal, finding it lacked jurisdiction because the claim exceeded $50,000, the appellant failed to perfect the appeal on time, and the appeal was entirely without merit and an abuse of process.

The court also declared the appellant a vexatious litigant, prohibiting further proceedings without leave.

Following the dismissal of three proceedings brought by the self-represented respondent, the applicant municipality sought costs of $6,472.

The respondent argued costs should be waived due to his limited resources and the public interest nature of the issues.

The court rejected the respondent's arguments, noting he had been warned about the merits of the proceedings but proceeded anyway.

The court reduced the applicant's claimed costs by 20% due to issues with their documentation, fixing costs at $5,177.60.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy for non-payment of rent.

The landlords brought a motion to quash the appeal and declare the tenants vexatious litigants, presenting evidence that the tenants had a pattern of filing frivolous appeals to live rent-free.

The Divisional Court found the appeal to be a 'scam' devoid of merit, quashed the appeal, declared the tenants vexatious litigants requiring leave for future appeals from the Board, and awarded the landlords costs on a full indemnity basis.

Following the dismissal of the appellant's appeal from a Small Claims Court decision, both parties sought costs.

The respondent sought costs on a substantial indemnity scale, arguing the appeal was frivolous and noting the appellant's scandalous allegations against the court.

The court awarded costs to the respondent on a partial indemnity scale, fixing the amount at $3,500, taking into account the $7,200 claimed in the original action.

The court also reprimanded the self-represented appellant, who is a lawyer by training, for her disrespectful and unfounded attacks on the judiciary.

The self-represented appellant appealed a Small Claims Court decision dismissing his action for wrongful dismissal and overtime pay, as well as the subsequent costs award.

The Divisional Court found no error in the trial judge's conclusion that the appellant was a probationary employee who could be terminated without notice under the employment contract.

The court also considered whether leave was required to appeal the costs award under the Courts of Justice Act.

Although leave was required, the court granted it but ultimately dismissed the costs appeal, finding the trial judge's award was within the statutory limit and properly exercised.

The respondent brought a motion to dismiss the applicants' judicial review application for delay.

The applicants brought a cross-motion to admit five affidavits as evidence on the judicial review hearing, arguing they were necessary because no official transcript or audio recording of the tribunal proceedings existed.

The Divisional Court dismissed the motion to dismiss, finding the delay was not deliberate or highly prejudicial.

The court granted the cross-motion, applying an exception to the general rule against admitting affidavits on judicial review, as the applicants would otherwise be unable to effectively challenge the tribunal's findings of fact and credibility.

The moving parties sought leave to appeal an order dismissing their motion for an anti-suit injunction and staying their counterclaims in Ontario pending the resolution of parallel proceedings in Delaware and Illinois.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision.

The motion judge correctly applied the Amchem test and concluded that the foreign forums were more appropriate, noting that the jurisdiction clause in the parties' agreement was not exclusive.

Following a successful judicial review application, the applicants sought costs of $113,017.43 on a partial indemnity scale.

The court reviewed the bill of costs and applied the principle that a costs award must reflect a fair and reasonable amount for the unsuccessful party to pay, rather than an exact measure of actual costs.

The court disallowed costs for proceedings before the administrative tribunal, reduced the hourly rates claimed for counsel, and found the hours claimed for preparation and submissions excessive.

Costs were fixed at $25,681.93 inclusive of disbursements.

The plaintiff sued the defendant doctor for sexual assault.

Criminal charges against the defendant were stayed, but during the criminal proceedings, the defendant received a Crown Disclosure Brief, which included a statement he made to police that was ruled inadmissible due to a s. 10(b) Charter violation.

In the civil action, the plaintiff sought production of the Crown Brief.

The Divisional Court held that while the existence of the Crown Brief must be disclosed, its contents should not be produced until the Attorney General and relevant police service are notified and either consent or a court orders production.

Furthermore, the defendant's Charter-infringing statement to police was protected from production in the civil proceeding.