Robert J. Smith

This was a costs endorsement following a civil action in which the plaintiff sought partial indemnity costs after recovering a fraction of the damages originally claimed.

The responding party argued the result was modest and that lower costs would be proportionate.

The court held that success was partially divided because the landlord substantially reduced the damages, and fixed costs at $20,000 plus disbursements and HST.

On a Crown application in a criminal trial, the court determined the admissibility of multiple out-of-court statements made by the deceased to family members, friends, and police.

Applying the principled hearsay approach, the court held that necessity was established by the declarant's death and assessed threshold reliability statement by statement.

Statements made under oath in a peace bond application were admitted as sufficiently reliable, as were certain statements to police tendered as circumstantial evidence of the deceased's state of mind.

Other statements were excluded where their meaning was unclear, relevance was lacking, or the surrounding circumstances did not provide sufficient indicia of reliability.

Sentencing decision following convictions for possession of a restricted weapon, possession of a loaded restricted firearm without a licence, and possession of a firearm knowing it had been obtained by crime.

The court emphasized denunciation and deterrence for loaded restricted handgun possession, particularly where the firearm was stored in a residence with very young children and the offender had a lengthy criminal record with continuing offending while on bail and in custody.

Applying the pre-sentence custody credit approach from Summers, the court granted enhanced credit at 1.5 to 1 but reduced it by two months because the offender’s custodial misconduct made full remission unlikely.

A sentence of four and one half years' imprisonment, less 23.5 months' credit, was imposed together with a lifetime weapons prohibition and DNA order.

Commercial lease trial arising from a landlord's lockout of a restaurant tenant after disputes over rent arrears and operating-cost adjustments.

The court found the landlord had agreed to accept three post-dated cheques in satisfaction of arrears then outstanding, and that this agreement constituted an implied waiver of default, precluding unilateral termination of the lease on that basis.

The subsequent lockout and termination were therefore wrongful.

The tenant recovered damages for leasehold improvements, inventory, equipment, and overpayment of rent, while the landlord's counterclaim was dismissed.

In an addition to earlier reasons, the court addressed an omitted procedural issue raised by the respondent in a family law proceeding.

The respondent sought severance of the divorce claim from the balance of the applicants' claims as a preliminary step to permit the hearing of a summary motion.

The applicants did not oppose the request.

The court granted the severance request nunc pro tunc.

This was a criminal evidentiary ruling on the admissibility of statements made by a deceased declarant.

The court admitted several statements on consent, admitted others under the state of mind exception, and excluded certain statements as irrelevant or for failure to meet threshold reliability.

The ruling was interlocutory and addressed itemized statements individually by chart number.

The respondent wife brought a motion for summary judgment to dismiss the applicants' claims for the return of a 50% interest in a property, wedding expenses, and wedding gifts following the parties' separation after a short marriage.

The applicants alleged the property transfer was conditional, fraudulently induced, and signed under duress.

The court applied the expanded fact-finding powers for summary judgment and found that a valid, unconditional gift of the property had been made, with no genuine issue requiring a trial regarding fraud, duress, or oral conditions.

The motion for summary judgment was granted and the applicants' claims were dismissed.

Costs decision following a motion to vary an existing order for child support and spousal expenses in a family law proceeding.

The responding party sought $2,500 in costs after successfully obtaining a variation of the order.

The moving party argued that no costs should be awarded because she was successful on the issue of special expenses for orthodontic work.

The court held that success was divided but recognized that the responding party had succeeded in varying the order.

Costs of $1,000 were awarded to the responding party, to be deducted from existing child support arrears owed.

Following a successful motion for child support and special expenses in a family law proceeding, the mother sought substantial indemnity costs on the basis that the father had refused to pay support after the child returned to reside with her and the maternal grandparents.

The father argued that costs should be reserved to the trial judge.

The court rejected that submission, holding that costs should generally be fixed after each step under the Family Law Rules.

While the father’s refusal to pay support justified an award of costs, his position was not sufficiently unreasonable to warrant substantial indemnity costs.

Costs were fixed on a partial indemnity basis.

The accused brought a voir dire challenging the voluntariness of statements made during a video-recorded police interview in a prosecution for sexual assault and unlawful confinement.

The accused argued that the interviewing officer improperly induced cooperation by suggesting possible release, undermined legal advice to remain silent, and reversed the onus by presenting a narrative and inviting correction.

Applying the contextual voluntariness analysis from the confessions rule, the court held that the accused was aware of his rights, had consulted counsel, and maintained his right to silence when confronted with incriminating allegations.

The court concluded that the questioning was not oppressive and did not overbear the accused’s will.

The Crown proved beyond a reasonable doubt that the statements were voluntary and therefore admissible.

The applicant sought relief from the statutory penalty imposed for failing to file an audited municipal campaign financial statement by the deadline under the Municipal Elections Act.

The financial statement had been filed three minutes late and without the required audit due to financial hardship, though the audited version was later filed and materially identical.

The municipality argued that the Superior Court lacked jurisdiction to waive the statutory penalty barring the applicant from running in the next municipal election.

The court held that relief could be granted by applying the good‑faith and inadvertence criteria in s. 92(6) of the Act, even where no prosecution had been initiated.

Finding the applicant acted in good faith, committed an error in judgment, and caused no prejudice, the court waived the penalty.

Following a family law motion concerning imputed income, child support, spousal expenses, and access terms, the respondent sought costs on a substantial indemnity basis after being substantially successful.

The court considered the parties’ offers to settle, noting that the result was nearly identical to the respondent’s offers except for a lower imputed income amount.

Because the result did not equal or exceed the offers, the court declined substantial indemnity costs and instead awarded costs on a partial indemnity basis.

The court also considered proportionality and the similarity between the parties’ legal bills.

Costs were ordered payable by the applicant to the respondent.

Following a family law motion involving parenting issues, the applicant sought costs of $3,710 on a partial indemnity basis, representing approximately 60 percent of legal fees incurred.

The respondents argued that the motion result was mixed because the applicant sought supervised access for the father with the younger child, which the court did not order.

Applying Rule 24 of the Family Law Rules, the court considered the presumption that a successful party is entitled to costs along with factors such as the reasonableness of the parties’ behaviour and the divided success on the motion.

The court concluded that the success on the motion was shared.

As a result, no costs were awarded.

The accused brought a motion for a directed verdict seeking acquittals on firearm possession charges, arguing the Crown had not led evidence capable of establishing knowledge of the firearm’s presence.

The Crown relied on circumstantial evidence linking the accused to a residence where a loaded 9 mm handgun and ammunition were found concealed in the master bedroom.

The court applied the directed verdict test and considered whether there was some evidence upon which a properly instructed jury could convict.

The court held that multiple pieces of circumstantial evidence supported an inference that the accused knew of and had control over the firearm.

The motion for a directed verdict was therefore dismissed.

The appellant appealed an assessment officer’s decision approving a solicitor’s fees of $75,000 plus $5,000 in assessment costs.

The appellant argued the award was unreasonably high and alleged several errors in principle, including failure to consider certain emails, improper consideration of pleadings, abusive conduct by the lawyer, and inability to pay.

The court held that the assessment officer considered the relevant evidence, applied the correct burden of proof, and made no palpable and overriding errors of fact.

The appellant failed to identify any error in principle in the assessment decision.

The appeal was therefore dismissed and costs were awarded against the appellant.

Following a discovery-related motion concerning production of documents and claims of solicitor‑client privilege, the defendant sought costs exceeding $55,000 on a partial indemnity basis.

The plaintiff, who was self‑represented, had largely failed on the underlying motion, obtaining production of only one document and clarification of indexing in the affidavit of documents.

Applying the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, and the reasonable expectations of the losing party, the court concluded the amount sought was excessive.

The court reduced the recoverable fees to $25,000 plus HST and limited disbursements.

Costs were ordered payable in any event of the cause.

The plaintiffs sought certification of a class proceeding against a bank and a former employee who improperly accessed customers’ confidential financial information and disclosed it to third parties, leading to identity theft and fraud affecting numerous customers.

The court considered the requirements for certification under s. 5(1) of the Class Proceedings Act, 1992, including whether the pleadings disclosed causes of action such as negligence, breach of contract, intrusion upon seclusion, vicarious liability, and waiver of tort.

The court held that several pleaded claims disclosed viable causes of action and that the proposed class of 643 customers whose information had been accessed constituted an identifiable class.

The court further found that the issues of negligence, breach of contract, vicarious liability for intrusion upon seclusion, and waiver of tort raised common issues and that a class proceeding was the preferable procedure for resolving them.

The proposed representative plaintiffs were found to be suitable and capable of advancing the litigation.

The applicant children's aid society sought judicial review of a decision by the Child and Family Services Review Board.

The Board had overturned the society's refusal of an adoption plan proposed by the children's paternal aunt and uncle, who resided in another province, and ordered the children placed with them primarily to preserve their native cultural identity.

The society argued the decision was unreasonable as it ignored the children's strong attachment to their foster parents of three and a half years and the oldest child's explicit wish to remain.

The Divisional Court agreed, finding the Board made palpable and overriding errors by giving undue weight to the cultural heritage factor while ignoring the children's overall best interests, stability, and the negative assessments of the proposed adoptive home.

The court quashed the Board's decision and reinstated the society's approval of the foster parents' adoption plan.

The offender was convicted of conspiracy to commit fraud and fraud after impersonating a bank customer and directing a financial institution to transfer $497,000 from the victim’s account to another account.

The scheme involved obtaining confidential banking information from a co‑conspirator and using it to take over the victim’s account.

The court considered significant aggravating factors including the large amount involved, planning and organization of the offence, commission of the offence while on release for a similar charge, and the offender’s prior fraud convictions.

Although the funds were ultimately recovered and the offender had family and health circumstances, denunciation and deterrence were emphasized.

A penitentiary sentence within the three‑to‑five‑year range for serious bank fraud was imposed.

Following a family law motion concerning arrears of child support and spousal expenses, the successful party sought substantial indemnity costs of $10,000.

The responding party argued success was divided and proposed a reduced costs award.

The court considered the factors under Rule 24 of the Family Law Rules, including relative success, settlement offers, financial disclosure conduct, reasonableness of counsel’s rates and time, and the losing party’s reasonable expectations.

The court found the moving party was substantially successful and had made a reasonable offer to settle, but not one warranting full indemnity costs.

Costs were fixed at $6,000 inclusive of HST plus disbursements.