Richard Rudolphe George Marks

The court issued supplementary reasons and a costs decision following a summary judgment motion.

The plaintiff argued that the defendant Crime Stoppers could not rely on s. 3(3) of the Libel and Slander Act because it was not pleaded and that s. 3(7) applied due to a refusal to broadcast a statement.

The court clarified that Crime Stoppers was permitted to amend its defence to rely on s. 3(3) and that s. 3(7) did not apply as there was no refusal to publish a retraction, given the publication was removed and the plaintiff's counsel indicated satisfaction.

Regarding costs, the parties agreed to no order as to costs between the plaintiff and the Ottawa Police Services Board, and costs of the motion between the plaintiff and Crime Stoppers were made payable in the cause, to be fixed by the trial judge.

The plaintiff sued Ottawa Capital Area Crime Stoppers and the Ottawa Police Services Board for defamation and negligence after police posted her image on the Crime Stoppers website, identifying her as a "suspect" who "stole a purse." The defendants moved for summary judgment to dismiss the claims.

The court granted Crime Stoppers' motion to dismiss the defamation claim, finding it had a complete statutory defence under s. 3(3) of the Libel and Slander Act.

However, the police defendants' motion for summary judgment on the defamation claim was dismissed, as genuine issues for trial remained regarding available defences.

Both defendants' motions to dismiss the negligence claims were also dismissed, as the existence of a duty of care could not be determined on affidavit evidence.

The applicant, having been the more successful party in a ten-day family law trial concerning custody, access, child support, arrears, life insurance, and equalization, sought partial and full indemnity costs.

The respondent argued for divided success and sought costs based on her offers to settle.

The court found the applicant to be the more successful party, noting the importance and difficulty of the custody issues.

While the applicant made no formal offers, both parties demonstrated reasonable behaviour in attempts to settle.

The court assessed the reasonableness of counsel's rates and the time spent, adjusting for prior cost awards and excessive hours claimed by the applicant.

Ultimately, the court fixed costs at $50,000 inclusive of HST and disbursements, payable by the respondent to the applicant.

This trial addressed custody, parenting schedule, child support, and life insurance for the parties' child.

The court ordered joint custody, an equal residential schedule, and found shared custody for child support purposes, resulting in no ongoing table child support from June 1, 2017, due to equal incomes.

Arrears were calculated, and both parents were ordered to maintain life insurance for the child.

A divorce order was also issued.

The respondent father brought an emergency motion seeking immediate joint custody and a week-about parenting schedule for an 11‑month‑old child.

The applicant mother opposed and sought sole custody with limited evening and weekend access for the father, along with child support.

The court held that the existing status quo, in which the child had primarily resided with the mother since birth, should not be materially altered on an interim basis given unresolved concerns about the father’s substance use and the condition of his residence.

The court ordered the child’s primary residence to remain with the mother while providing structured access for the father and requiring both parties to disclose information regarding substance use and home conditions.

Interim child support was also ordered.

The appellant appealed the dismissal of her solicitor's negligence claim and the award of full indemnity costs against her.

The claim arose from advice regarding a separation agreement and the treatment of a severance payment.

The Court of Appeal upheld the trial judge's findings that the solicitor did not breach the standard of care and that the appellant suffered no damages.

However, the Court found the trial judge erred in awarding full indemnity costs based on the appellant's conduct at trial.

The trial costs award was reduced from $160,706.99 to $60,000 on a partial indemnity scale, emphasizing the principle of proportionality.

The plaintiffs brought a motion seeking leave to amend their statement of claim to discontinue certain plaintiffs, add a municipal lawyer as a defendant, and deliver a fresh as amended statement of claim alleging malicious prosecution and related torts.

The court held that the proposed addition of the new defendant was barred by the applicable limitation period under the discoverability principle, as the plaintiff had knowledge of the individual’s alleged involvement more than two years before the motion was argued.

The court found that merely delivering a motion before the limitation period expired did not suspend the running of time; the motion must be successfully argued within the limitation period.

As a result, the request to add the proposed defendant and amend the claim to seek damages against him was refused, although leave to discontinue certain plaintiffs was granted.

Costs were awarded against the moving party.

Following a summary judgment motion in a medical negligence action where the plaintiff was largely successful, the court determined the appropriate costs awards.

The plaintiff sought substantial indemnity costs, which the court denied, finding the defendants did not act unreasonably in bringing the motion.

The court awarded the plaintiff $54,000 in partial indemnity costs after reducing the claimed hours for reasonableness.

The court also awarded the defendants $7,500 for their partial success on the motion and awarded Dr. Penning $12,000 for the dismissal of the action against him, with these amounts to be set off against the plaintiff's award.

Following dismissal of a legal negligence action against a lawyer and her firm, the court considered the appropriate costs award.

The defendants sought full indemnity costs after an eight‑day trial, arguing the plaintiff pursued unfounded allegations, including claims impugning the lawyer’s honesty, and continued litigation despite evidence showing no negligence or damages.

The court applied the principles governing costs under Rule 57 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, including the purposes of indemnification, encouraging settlement, and discouraging improper conduct.

Finding the plaintiff advanced serious unsubstantiated allegations, changed evidence at trial, and pursued the action despite knowing it lacked merit, the court held the conduct was exceptional and reprehensible.

Full indemnity costs were therefore awarded.

The appellant appealed a Master's order dismissing his action for delay under Rule 48.14 of the Rules of Civil Procedure and awarding costs to the defendant.

The underlying claim alleged constructive dismissal arising from a family business arrangement relating to the development and operation of a golf club.

The appellant argued that his delay in prosecuting the action was explained by depression and anxiety that prevented him from instructing counsel and advancing the litigation.

The court held that the Master correctly applied the two-part test requiring both a satisfactory explanation for delay and absence of prejudice to the defendants.

Given the prolonged inactivity and the death of a key defence witness during the delay, the Master committed no error in dismissing the action and awarding costs.

The plaintiff brought a solicitor negligence claim against her former family lawyer arising from advice provided during the negotiation and execution of a separation agreement.

The plaintiff alleged the lawyer failed to meet the standard of care by not ensuring full financial disclosure, by allegedly mischaracterizing settlement funds from employment litigation, and by permitting a final spousal support release.

The court found that the lawyer repeatedly advised the plaintiff not to sign a final agreement without full financial disclosure and even proposed a partial agreement pending further disclosure, but the plaintiff chose to proceed due to time pressure related to a home purchase.

Expert evidence established that the lawyer’s conduct met the standard of care for family law practitioners in the circumstances.

The court further held that the plaintiff failed to prove causation or damages, as later financial disclosure demonstrated the separation agreement was fair and reasonable.

The defendant physicians brought a motion for summary judgment dismissing a medical negligence action arising from complications following bowel surgery and epidural analgesia.

The plaintiff alleged failures in diagnosis and treatment of an epidural catheter infection, failure to obtain informed consent, and related causation issues after developing an epidural abscess requiring additional surgery.

Applying the “full appreciation test” for summary judgment from Combined Air Mechanical Services Inc. v. Flesch, the court held that the voluminous evidentiary record, conflicting expert evidence, and credibility issues required a trial for most allegations.

However, certain claims were dismissed: allegations relating to the surgeon’s performance of the initial surgery lacked supporting expert evidence, and claims against one physician based on a novel duty of care as a member of the Acute Pain Service failed to disclose a prima facie duty of care.

The remaining negligence, informed consent, limitation, and causation issues were ordered to proceed to trial.

The appellants sought leave to amend their statement of claim in an action arising from a neighbour dispute over a right-of-entry permit and property excavation.

The motion judge denied leave to add claims for negligent misrepresentation and breach of fiduciary duty against the municipality and its by-law officer, and struck portions of the claim as a collateral attack on a prior injunction order.

The Court of Appeal upheld the dismissal of the negligent misrepresentation and fiduciary duty claims, finding no special relationship or reliance.

However, the Court allowed the appeal regarding collateral attack, holding that the appellants were seeking damages for the respondents' actions rather than attempting to invalidate the prior order.

The appellant settled its claim with the hospital and sought to amend its statement of claim to proceed against the remaining defendants for their several liabilities, as contemplated by the settlement.

The motion judge refused to allow the amendment.

The Court of Appeal allowed the appeal, finding that the proposed amendments fully disclosed the terms of the settlement and restricted the claim against the remaining defendants to what was permitted by the settlement.

The appellants appealed the trial judge's decision allowing the respondents' claims for the balance of a vendor take-back loan and wrongful dismissal, and dismissing the appellants' action for breach of contract and fiduciary duty arising from a complex business sale.

The Court of Appeal upheld the trial judge's interpretation of the contractual documents, finding that the non-competition covenant had to be read in conjunction with a mutual undertaking that granted a right of first refusal for distribution contracts.

The Court also agreed that the respondent did not owe a fiduciary duty to the appellants, as the parties were at arm's length and of equal strength.

The appeals were dismissed.

The appellant law firm sought an interpleader order to pay trust funds into court.

The application judge ordered the payment of those funds, plus an additional amount that the law firm had already applied toward unpaid legal fees.

On appeal, the Court of Appeal held that an interpleader order was not available for the additional funds because the law firm claimed a beneficial interest in them and was not a disinterested stakeholder.

The appeal was allowed, and the order was varied to exclude the disputed funds.

Following an appeal in which the appellant IBM enjoyed substantial success, the Court of Appeal fixed the appellant's costs at $12,500 all inclusive.

The employee was dismissed for cause after making a threat of violence while on short-term disability.

A jury found no just cause for dismissal and awarded 9 months' notice, 4 months' Wallace damages, $1,000 in aggravated damages, and $22,000 in punitive damages.

The employer appealed.

The Court of Appeal upheld the jury's findings on lack of just cause and Wallace damages, but reduced the notice period to 4 months, finding 9 months unreasonable for a short-tenure, non-managerial employee.

The Court also set aside the aggravated and punitive damages because the jury had explicitly rejected the only pleaded independent actionable wrong (intentional infliction of mental distress).

The appellants appealed a motions judge's decision finding that time was of the essence in a contract and that a fundamental breach had occurred.

The appellants also sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motions judge's application of the law from Sail Labrador Ltd. v. Challenge One (The).

The court also refused to admit the fresh evidence, concluding it did not meet the test for admission and was not relevant to the finding that time was of the essence.

The appellant appealed an order dismissing his action as an abuse of process.

The motions judge had concluded that commencing a new action against individual defendants after the court refused to amend the claim to name them in a prior action constituted an abuse of process.

The Court of Appeal found this was an error in principle, as the prior decision was purely procedural and did not deal with the merits of the claim.

The appeal was allowed and the action was permitted to proceed.