Robert J. Smith

The appellant property assessment corporation appealed a decision of the Assessment Review Board that reclassified a property from industrial to commercial.

The property was used by a small welding business that primarily sold raw materials and custom-made propane cylinder cages without a mass production line.

The Divisional Court applied the reasonableness standard of review and upheld the Board's decision, finding that the Board's reliance on dictionary definitions and Wikipedia to interpret 'manufacturing' as requiring mass production was reasonable in the absence of a statutory definition.

The applicant sought a stay of proceedings unless the Attorney General funded his defence at Legal Aid Ontario rates pursuant to a Rowbotham application.

Legal Aid had refused continued funding after the accused sought to change counsel.

The court accepted that counsel was essential to ensure a fair trial given the seriousness of the drug trafficking charge, the complexity of the proceedings, and the accused’s ability to participate.

After reviewing the applicant’s financial circumstances, including assistance from family members and equity in his spouse’s home, the court concluded that he lacked the means to retain counsel.

A conditional stay of proceedings was granted unless state-funded counsel was provided.

The plaintiffs sought to continue an interim ex parte Mareva injunction freezing the defendant father’s assets in a civil action alleging long‑term physical and emotional abuse and seeking $7.65 million in damages.

The defendant moved to set aside the injunction, denying the allegations and disputing claims that he intended to dissipate assets.

The court applied the test for Mareva injunctions requiring a strong prima facie case, assets within the jurisdiction, and a real risk of asset dissipation.

The evidence supporting the abuse allegations consisted largely of contradictory affidavits and lacked independent corroboration, raising credibility issues that could only be resolved at trial.

The court held that the plaintiffs failed to establish a strong prima facie case and therefore set aside the interim Mareva injunction.

The moving party brought a motion seeking disclosure and examination of the responding party’s former lawyers on the basis that the responding party had waived solicitor-client privilege through statements contained in an affidavit.

The court held that the affidavit placed the legal advice and conduct of former counsel in issue, thereby constituting a waiver of solicitor-client privilege and professional secrecy concerning communications and instructions relating to the progress of the action.

The court ordered that the former lawyers attend for further examination under Rule 39.03 to answer questions within the scope of the waiver.

The motion was granted and directions were provided regarding the scope of permissible questioning.

The plaintiff contractor, Rocksolid, brought an action for the unpaid balance of a contract to install masonry stonework on the defendants' new home.

The defendants counterclaimed for the cost of completing the work and repairing alleged deficiencies.

The court found that the defendants breached the contract by failing to supply sufficient stone, which delayed the project into the winter, and repudiated the contract by refusing to pay for the necessary heating costs and ordering the plaintiff off the jobsite.

The court also held that the defendants failed to mitigate their damages by denying the plaintiff a reasonable opportunity to correct the minor deficiencies.

The plaintiff was awarded $18,530.89 on a quantum meruit basis, and the counterclaim was dismissed.

The appellant appealed a criminal conviction alleging that the trial judge made palpable and overriding errors of fact, misapplied the credibility framework from R. v. W. (D.), and failed to consider inconsistencies in the complainant’s evidence.

The appellant argued the trial judge misapprehended his videotaped police statement regarding whether he had been making out with the complainant.

The court held that the trial judge accurately reflected the appellant’s evidence as clarified during cross-examination and therefore did not misapprehend the evidence.

The court further held that there was no meaningful inconsistency in the complainant’s testimony and that the trial judge properly applied the R. v. W. (D.) framework.

The conviction appeal was dismissed.

The plaintiffs sought costs on a substantial indemnity basis following a motion for directions on how to implement a Consent Judgment.

The responding party argued that no costs should be awarded because the original Minutes of Settlement and Consent Judgment were deficient and failed to include necessary terms.

The court found that because the Consent Judgment was unclear and both parties failed to include terms on how to implement it, the motion was necessary.

The court ordered that both parties bear their own costs.

Following the plaintiff’s successful motion for summary judgment recovering funds advanced to the defendants for investment, the court determined the appropriate costs award.

The defendants had accepted funds from the plaintiff and invested them despite lacking proper qualifications, allegedly losing the money through inappropriate stock market investments.

The defendants made no submissions on costs.

Considering the plaintiff’s complete success, the complexity of the motion including limitation and forum issues, and the defendants’ reprehensible conduct, the court awarded substantial indemnity costs.

Following dismissal of a champerty motion brought by the defendant seeking to stay a libel action as an abuse of process, the court determined the appropriate costs award.

The defendant had argued that the plaintiff should not receive costs because her legal fees were funded by her employer, and that the affected party university had no entitlement to costs.

The court rejected these arguments, holding that third‑party funding does not preclude an award of costs and that the university, as an affected party under Rule 37.07(1) of the Rules of Civil Procedure, was entitled to participate and recover costs.

Applying the Rule 57 factors, including complexity, extensive evidentiary record, and the reasonable expectations of the unsuccessful party, the court fixed partial indemnity costs in favour of both the plaintiff and the university.

Following a motion where the moving party sought to bifurcate liability and damages at trial, the responding plaintiffs successfully opposed the motion but were unsuccessful on a jurisdictional argument regarding whether the court could order bifurcation without consent.

The court addressed the appropriate costs award arising from that motion.

Applying the principle that costs generally follow the event, the court held that the successful party should receive costs notwithstanding partial success by the moving party on a legal argument.

Costs were fixed on a partial indemnity basis and reduced to reflect the divided success.

The responding defendant was ordered to pay a lump sum amount inclusive of HST and disbursements.

Following a motion and cross‑motion in a family law dispute involving parenting time, interim child support, interim spousal support, sale of the matrimonial home, and exclusive possession, the respondent sought costs.

Applying Rule 24 of the Family Law Rules, the court considered success, reasonableness of conduct, complexity, and the parties’ reasonable expectations regarding costs.

The court found the responding party was substantially successful on the parenting, support, and exclusive possession issues, and that costs should be awarded on a partial indemnity basis.

While some disclosure delays by the opposing party were noted, the conduct did not justify elevated costs.

Costs were fixed at $8,500 plus HST and disbursements.

Following the dismissal of summary judgment motions brought by the defendants, the plaintiff sought costs on a partial indemnity basis for successfully defending the motions.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, complexity, proportionality, and the conduct of the parties.

While the defendants’ motions were brought reasonably and with the objective of shortening the proceedings, the plaintiff was substantially successful in resisting them, though some issues remained for trial.

The court concluded that costs should be fixed immediately rather than deferred to the trial judge.

Costs were awarded to the plaintiff on a partial indemnity basis.

The parties, equal shareholders in a corporation and former spouses, signed Minutes of Settlement and a consent Judgment to distribute the corporation's assets.

The Judgment did not address the capital gains taxes and other liabilities incurred by transferring properties to the shareholders.

The plaintiffs brought a motion under Rule 59.06(2)(c) to carry the Judgment into operation, arguing the corporation must pay all taxes and creditors before distributing the remaining assets.

The defendant argued he should receive his share without the corporation first paying taxes.

The court held it had jurisdiction to give directions and ordered that the corporation must pay all taxes and creditors before distributing the balance of its assets equally to the shareholders, as required by the Business Corporations Act.

The defendant's motion for contempt was dismissed.

The plaintiff brought a motion for summary judgment seeking repayment of funds transferred to the defendants for investment in the American stock market.

The defendants admitted receiving the funds but claimed the losses resulted from stock market risks.

The court found there was no genuine issue requiring a trial regarding negligence and breach of the implied contractual duty to invest the funds prudently.

The defendant who undertook the investments admitted lacking competence and taking unreasonable risks, leading the court to conclude that the plaintiff’s losses resulted from negligent investment conduct.

The co‑defendant was held jointly liable as a joint holder of the investment account that received and commingled the plaintiff’s funds.

The applicant father brought proceedings seeking custody or, alternatively, access to the parties’ three children following a prior divorce order granting the respondent mother sole custody with no access to the father.

The court considered the best interests of the children under s. 16(8) of the Divorce Act and s. 24(1) of the Children’s Law Reform Act.

Evidence established that the mother had been the children’s primary caregiver since separation and had provided a stable and supportive environment, while the father had limited involvement, credibility concerns, and evidence of abusive conduct toward the mother.

The court accepted the recommendations of the Office of the Children’s Lawyer that the mother retain sole custody and that the father receive gradually increasing access.

The application for custody was denied and the mother was granted sole custody with structured access for the father.

The defendant municipality brought a motion to bifurcate the trial into separate hearings for liability and damages three months before a scheduled five-week trial for a catastrophic motor vehicle accident.

The plaintiff opposed the motion.

The court held that while Rule 6.1.01 permits bifurcation on consent, it does not remove the court's inherent jurisdiction to order it without consent in exceptional cases.

However, applying the Bourne v. Saunby factors, the court found the case was not so extraordinary as to warrant bifurcation, noting that much of the damages preparation was already complete and delay would prejudice the plaintiff.

The motion was dismissed.

Following a jury conviction for manslaughter arising from a fatal stabbing outside a bar, the court determined the appropriate custodial sentence.

The offender retrieved a large knife from home after a verbal confrontation and later stabbed the unarmed victim multiple times during a confrontation in a parking lot.

The court found high moral blameworthiness given the deliberate retrieval and concealment of the weapon and the vulnerable position of the victim, although provocation relating to the victim’s treatment of the offender’s girlfriend was a mitigating factor.

Applying the sentencing range for morally blameworthy manslaughter established in appellate authority, the court emphasized denunciation and general deterrence while also considering the offender’s lack of criminal record, employment history, and prospects for rehabilitation.

A nine‑year sentence was imposed with enhanced credit for pre‑sentence custody.

The accused brought a motion under s. 591(3)(b) of the Criminal Code seeking severance from co‑accused in a joint fraud prosecution relating to a scheme involving unauthorized access to banking information and transfers of funds from customer accounts.

The applicant argued that a co‑accused might introduce evidence of the applicant’s prior fraud conviction involving the same financial institution, which could cause significant prejudice in a jury trial.

The Crown opposed severance, submitting that the concern was speculative and that any prejudice could be addressed through jury instructions.

The court emphasized the strong presumption favouring joint trials where charges arise from the same series of events and held that the risk of prejudice was not sufficiently established at this stage.

Because it was uncertain whether the evidence would be tendered or admitted at trial, the severance application was found to be premature and speculative.

Following the adjournment of a civil trial after the defendants sought leave to file a late expert report on the eve of trial, the plaintiff sought recovery of costs thrown away.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, reasonable expectations of the losing party, and the principle of indemnity.

The court held that the defendants' conduct in serving the expert report immediately before trial justified an award of costs on a complete indemnity basis for wasted preparation.

However, the court applied a 50% reduction to certain trial preparation time to reflect work that would remain useful for the future trial and adjusted other disputed items.

Costs thrown away were fixed at $27,951 plus HST and disbursements.

Following a family law motion involving interim support and property-related relief, the respondent sought partial indemnity costs of $8,000 plus HST.

The court reviewed the parties’ relative success, noting that both parties achieved some relief while failing on other claims, including competing requests for exclusive possession, support, and insurance-related orders.

The court considered the factors under Rule 24 of the Family Law Rules, including success, reasonableness of conduct, and offers to settle.

Although the respondent made a reasonable settlement offer, it was not signed by counsel and was not delivered within the required time period.

Given the evenly divided success and procedural deficiencies in the offer, the court declined to award costs.