Robert J. Smith

The respondent beneficiary brought a motion seeking an order to compel the estate trustees to make an interim distribution of the estate's assets before the passing of accounts.

The estate trustees had refused to make the distribution after the respondent objected to their compensation and threatened litigation over the sale of the deceased's residence.

The court dismissed the motion, finding that the estate trustees had not acted with mala fides and reasonably exercised their discretion to withhold distribution until their accounts were approved by the court.

On a voir dire in a criminal prosecution, the court considered whether statements made by the accused to an Eligibility Review Officer during an investigation under the Disability Support Program Act were voluntary and whether their use would breach the accused’s section 7 Charter right against self‑incrimination.

The accused argued the officer was a person in authority and that the interview was effectively compelled.

The court held the officer was conducting an administrative eligibility investigation and was not acting on behalf of police or prosecuting authorities.

Applying the principles from R. v. Hodgson and R. v. Jarvis, the court found the officer was not a person in authority and the statements were voluntary.

The court further held that the investigation had not crossed the line into a penal inquiry and therefore no section 7 Charter breach occurred.

In a certified class proceeding concerning allegedly unsafe solarium models, the plaintiff brought a motion to settle the certification order and notice to class members, obtain security for publication costs, and address unpaid cost awards.

The defendant cross-moved to amend the class definition, remove the representative plaintiff, decertify the action, and require fuller disclosure of counsel’s fee arrangement.

The court held that the class definition previously approved by the Divisional Court remained appropriate and rejected the defendant’s attempt to narrow it to current users of the solariums.

The representative plaintiff remained a valid class member despite no longer residing in the home where the solarium had been installed.

The court dismissed the defendant’s motions, ordered the defendant to pay $7,000 into counsel’s trust account for notice publication costs, and approved the certification order and class notice with a minor amendment concerning disclosure of the retainer agreement.

Following a family law motion involving exclusive possession of the matrimonial home and support issues, the court addressed the question of costs.

The successful party sought modest costs calculated at the legal aid rate.

Applying Rule 24 of the Family Law Rules, the court considered success, the reasonableness of the parties’ behaviour, and the expectations of the unsuccessful party.

The court found the amount requested reasonable in light of the outcome and the presumption that the successful party is entitled to costs.

Costs were awarded against the unsuccessful party.

Following a contested custody and access motion, the successful party sought costs of $8,613.93 despite being represented through legal aid.

The opposing party argued success was divided and no costs should be awarded.

The court applied Rule 24 of the Family Law Rules, considering partial success, settlement offers, party conduct, and reasonable expectations regarding legal costs.

The court held that legally aided status does not affect the assessment of costs and found the hourly rate sought reasonable.

Balancing the factors, the court awarded reduced costs reflecting partial success by the opposing party.

The defendant sought costs after successfully setting aside an ex parte interim interlocutory Mareva injunction obtained by the plaintiffs.

The plaintiffs argued that costs should be determined after trial or awarded in the cause.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court considered success, the complexity of Mareva injunction proceedings, and the plaintiffs’ decision to proceed without notice despite the absence of urgency.

While the defendant sought substantial indemnity costs, the court held that the plaintiffs’ motion was not entirely groundless and awarded costs on a partial indemnity basis.

Costs of $17,000 inclusive of disbursements and HST were ordered payable in any event of the cause to preserve the plaintiffs’ access to justice.

Following a construction lien trial in which the plaintiff recovered the balance owing for stone installation and successfully defended a counterclaim alleging deficiencies, the court determined the appropriate costs award.

The plaintiff sought full or substantial indemnity costs, arguing that the defendants engaged in unreasonable conduct by presenting inflated invoices contradicted by their own witness and by making misleading testimony.

The court held that the conduct was unreasonable but did not rise to the level warranting full or substantial indemnity costs.

Considering the factors under Rule 57 of the Rules of Civil Procedure, the parties’ settlement offers, the complexity of the construction litigation, and proportionality, the court awarded costs slightly above partial indemnity.

Costs were fixed at $50,000 plus HST and $3,000 in disbursements.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action.

The plaintiff, a former government employee, had received an overpayment of long-term disability benefits totaling $114,644.76 after she took medical retirement and began receiving pension benefits without the insurer's knowledge.

When the insurer discovered the overpayment, it reduced her ongoing disability benefits by 50 percent to recover the debt.

The plaintiff sued for breach of fiduciary duty, breach of good faith, and punitive damages.

The court granted summary judgment, finding no fiduciary duty existed, the unintentional overpayment was not a breach of good faith, and the insurer was entitled to the self-help remedy of set-off under the policy.

The action was dismissed.

Following a motion regarding parenting time for an infant child, the court determined costs under Rule 24 of the Family Law Rules.

The moving party father had sought a rapid progression to a 50/50 access schedule, while the responding mother sought a gradual increase in parenting time.

The court found the mother was largely successful on the motion because the ordered access schedule closely resembled her proposal.

Considering the reasonableness of the parties’ conduct, the complexity of the matter, and proportionality, the court awarded partial indemnity costs to the successful party.

The defendants, including a foreign embassy and its cultural bureau, sought leave to appeal a motion decision that permitted an employment-related breach of contract action to proceed despite claims of state immunity.

The motion judge had found the dispute fell within the commercial activity exception under the State Immunity Act.

On the leave motion, the court considered whether conflicting authorities existed regarding the application of the commercial activity exception in employment contexts involving foreign states.

The court held that prior decisions demonstrated conflicting approaches to the issue and that the scope of state immunity in employment relationships with foreign states raised matters of significant importance to labour relations in Canada.

Leave to appeal was therefore granted, and the time for the defendants to deliver a statement of defence was extended pending the appeal.

The moving party law firm brought a motion seeking to transfer the taxation of costs to Ottawa.

The court considered factors including where the legal work was performed, the residence of most witnesses, and the convenience and efficiency of conducting the taxation before bilingual certified assessors in Ottawa.

The court found that most relevant events and witnesses were located in Ottawa and that the law firm had suffered the alleged financial prejudice there.

Balancing these factors, the court held that transferring the taxation proceeding from London to Ottawa was in the interests of justice.

The responding parties were ordered to pay costs of the motion.

The appellant, the Municipal Property Assessment Corporation (La Société d'évaluation foncière des municipalités), was ordered to pay costs to the respondents in the amount of $2,000.

The costs endorsement was rendered in writing by a panel of the Divisional Court.

Following a jury verdict in a defamation action, the court addressed the final terms of the judgment and injunction.

The court confirmed that the draft judgment should include a chart specifying the total amount owing by each defendant.

It also approved an injunction restraining the defendants from publishing statements and innuendos found by the jury to be defamatory.

The court declined to alter the jury’s damages awards by reducing the amounts payable by certain defendants based on damages assessed against others.

The jury’s separate findings on damages and costs were left intact.

The applicant father sought to vary a 2009 custody and access order to a joint custody 3-4-4-3 shared parenting schedule.

The respondent mother sought to maintain the status quo where the child resided primarily with her and the father had access every second weekend.

The court found a material change in circumstances due to the mother's relocation and new family dynamics.

However, applying the best interests of the child test, the court dismissed the father's request for shared custody, noting the high conflict between the parents, the child's strong bond with the mother, and the significant travel time required for the child to attend school from the father's residence.

The status quo was maintained with minor adjustments to access.

Following a jury verdict in an internet defamation action, the court determined costs and related remedies.

The jury had found the defendants liable for numerous defamatory postings on an online political forum and awarded aggravated and punitive damages.

The plaintiff sought substantial indemnity costs, relying on Rule 49 offers to settle and the defendants’ malicious conduct.

The court held that the plaintiff had been entirely successful and that the defendants’ conduct and refusal to accept reasonable settlement offers justified substantial indemnity costs.

Costs of $85,000 were awarded and apportioned among several defendants, and a permanent injunction was granted restraining republication of the defamatory statements.

The defendant brought a motion seeking a declaration that the plaintiff had waived solicitor-client privilege with his former lawyers after filing affidavit evidence blaming them for delay in prosecuting the action.

The affidavit asserted reliance on legal advice, instructions to counsel to advance the action, and lack of knowledge of a court-ordered timetable requiring the matter to be set down for trial.

The court held that by raising communications with counsel and his state of mind to explain delay in a motion to set aside a dismissal under Rule 48.14, the plaintiff placed those communications directly in issue.

Applying principles of fairness and implied waiver, the court concluded that privilege had been waived in relation to specified communications and instructions concerning advancement of the action.

The former solicitors were ordered to re-attend for examination under Rule 39.03 to answer questions relating to those issues.

The applicant, an inmate awaiting sentencing for attempted murder and aggravated sexual assault related to HIV transmission, applied for habeas corpus to be removed from administrative segregation and placed in the general prison population with a cellmate.

The applicant argued a denial of procedural fairness and failure to conduct mandated five-day reviews.

The court found that while there was a denial of procedural fairness in how the reviews were documented, the applicant was aware of the reasons for his segregation.

Due to the high risk the applicant posed to other inmates, the court held that administrative segregation was lawful and necessary for safety.

The application was dismissed, but the institution was ordered to continue offering alternative accommodation proposals.

Following a motion and cross‑motion in a family law proceeding concerning custody, access, and child support, the court addressed the issue of costs.

The moving party had been largely successful in opposing a motion to vary an earlier custody order, in resisting attempts to eliminate child support arrears and ongoing support, and in clarifying holiday access.

Applying Rule 24 of the Family Law Rules, the court considered success, complexity, proportionality, and the reasonable expectations of the self‑represented opposing party.

The court determined that costs should be awarded on a partial indemnity basis.

Costs were fixed at $3,500 plus HST and ordered payable as child support.

A co-accused sought leave to introduce evidence of another co-accused’s prior fraud conviction to support an inference that the co-accused independently possessed the ability to commit the alleged fraud.

The court considered whether the prior conviction had sufficient probative value to assist the moving party’s defence.

Applying the principles governing admission of bad character evidence between co-accused and the balancing test articulated in Seaboyer and subsequent authorities, the court found the evidentiary nexus weak and the probative value minimal.

The earlier offence involved different conduct and did not establish the capability alleged by the moving party.

The prejudicial effect to the co-accused substantially outweighed any limited probative value.

Multiple accused brought directed verdict motions in a jury trial alleging fraud and conspiracy involving the takeover of ING Direct customer bank accounts using confidential customer information.

The court reviewed the legal requirements for conspiracy, emphasizing the need for proof of an agreement and a shared unlawful objective, which may be inferred from circumstantial evidence.

The court held that there was some evidence capable of supporting an inference of conspiratorial agreement for certain counts, including evidence that one accused obtained confidential banking information and that another used that information to access accounts and transfer funds.

The motions for directed verdicts were dismissed for several accused because the evidence could permit a properly instructed jury to infer participation in the conspiracy or fraud.

However, one accused obtained a directed verdict of acquittal on a specific fraud count due to insufficient evidence linking him to the fraudulent transfer of funds.