Robert J. Smith

Following an unsuccessful motion by a non-party seeking intervener status in a civil action, the court determined costs.

The moving party argued that costs should not be awarded due to his status as an impecunious student.

The court held that alleged impecuniosity generally should not affect costs determinations and emphasized that the moving party had been warned costs would be sought if the motion proceeded.

The court also found that the moving party engaged in unreasonable conduct after the motion by sending emails attacking counsel and attempting to pressure the plaintiff to withdraw her claim for costs.

Costs were ordered payable to both opposing parties.

A condominium unit owner applied for a declaration that a certificate of lien registered by the condominium corporation against her unit was invalid.

The corporation had added legal costs incurred for obtaining advice in defending Small Claims Court actions commenced by the owner to the owner's common expenses and registered a lien under the Condominium Act, 1998.

The court interpreted the condominium declaration strictly and held that the indemnity clause permitted recovery only where the corporation took legal action against an owner and incurred costs in enforcing compliance.

Because the owner had commenced the actions and no costs award had been granted to the corporation, the declaration did not authorize recovery of the legal advice costs as common expenses.

The lien was therefore invalid and ordered discharged.

Application by an estate trustee seeking interpretation of survivorship clauses in a will requiring a beneficiary to survive the testator for thirty days.

The issue arose where the beneficiary died partway through the thirtieth day after the testator’s death.

The court considered the testator’s intention, the computation of time under the Rules of Civil Procedure, and the purpose of survivorship clauses in estate planning.

It held that the clause required survival for thirty full days, excluding the date of death.

Because the beneficiary died during the thirtieth day, she did not meet the survivorship requirement and the alternate beneficiary was entitled to the residue of the estate.

Following a jury trial arising from a motor vehicle accident involving an impaired driver, the plaintiff sought to sign judgment without applying the statutory deductible under s. 267.5 and s. 267.7 of the Insurance Act.

The plaintiff argued the tavern defendant had waived reliance on the deductible by objecting to proposed jury questions that would have apportioned liability solely between the driver and the tavern.

The court rejected the waiver argument, finding the jury’s answers effectively determined the tavern’s negligence at one percent and the driver’s responsibility at the balance.

Applying the principles in Sullivan Estate v. Bond, the court held that an unprotected defendant is liable only for its proportionate share of the statutory deductible.

Judgment was therefore to be signed with the tavern responsible only for one percent of the $30,000 deductible.

The defendant municipality brought a motion to bifurcate the trial into separate hearings for liability and damages in a catastrophic personal injury motor vehicle accident case.

The plaintiffs opposed the motion.

The court granted the motion, finding that the liability issues were distinct from the complex damages issues, and that a separate liability trial would likely save significant time and costs, especially since a damages trial would be unnecessary if the municipality was found not liable.

The court also granted the municipality leave to bring the motion after the action had been set down for trial.

The applicant sought leave to appeal a case management decision refusing permission to bring a motion requesting that members of the public be allowed to attend cross-examinations on affidavits conducted in relation to a champerty motion in a defamation action.

The court considered the test for leave to appeal under rule 62.02(4) of the Rules of Civil Procedure.

It held that no conflicting authority existed and there was no reason to doubt the correctness of the decision below.

The issue had already been decided earlier in the proceeding and permitting the motion would constitute an abuse of process and collateral attack.

The court also confirmed that cross-examinations on affidavits conducted before an examiner are not subject to the open court principle.

Daimler appealed a decision granting priority to 417 Truck Centre's unregistered non-possessory lien and storage lien over Daimler's registered security interest in a truck.

The Divisional Court dismissed the appeal, finding that Daimler was not a third party who acquired an interest after the non-possessory lien arose, and had prior notice of the lien before paying funds into court.

The court also upheld the storage lien, finding an implied understanding that storage would be charged and that the daily rate was reasonable.

The accused was charged with multiple sexual offences involving a young person in a relationship of dependency, as well as assault-related offences.

The trial centred on credibility, with the court applying the framework from R. v. W.(D.) to assess conflicting testimony between the complainant and defence witnesses.

The court accepted the complainant’s detailed and consistent evidence, finding it corroborated in part by contemporaneous writings and surrounding circumstances.

The accused’s denial and supporting testimony from family members were rejected as unreliable and biased.

The court convicted the accused on four sexual offence counts and one count of simple assault but acquitted on a separate assault count and on assault with a weapon.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for malicious prosecution, abuse of power, negligence, and Charter breaches arising from an income tax reassessment.

The plaintiff conceded the malicious prosecution claim.

For the remaining claims, the court held that the limitation period commenced when the plaintiff discovered the material facts underlying her claims, which occurred by 1998 or at the latest 2001 when she included them in her Notice of Tax Appeal.

The court rejected the argument that the cause of action only accrued after her tax appeal was successfully resolved in 2005.

As the action was commenced in 2007, it was statute-barred and dismissed.

The offender was convicted of possession of a large quantity of marijuana for the purpose of trafficking after police discovered approximately 29 pounds in the trunk of his vehicle during a highway stop.

The defence sought a conditional sentence or, alternatively, an intermittent custodial sentence followed by probation, emphasizing the offender’s role as a single parent and the passage of time since prior offences.

The Crown sought a custodial sentence of 12–15 months given the offender’s prior trafficking convictions and the substantial value of the drugs.

The court held that denunciation and deterrence were the primary sentencing objectives and that a conditional sentence was inappropriate for a repeat offender involved with a large quantity of drugs.

A custodial sentence of nine months’ imprisonment followed by two years’ probation was imposed.

Following motions under the Partition Act concerning the sale of a jointly owned commercial property, the court determined the appropriate costs award.

The applicant sought partial indemnity costs significantly exceeding the guideline hourly rates published by the Costs Subcommittee of the Civil Rules Committee.

The court held that the guideline rates are not mandatory and may be exceeded where justified by factors such as inflation, the substantial monetary value of the dispute, the sophistication of the parties, and the retention of Toronto counsel.

Adjusted hourly rates above the guideline maximum were approved, but the overall costs claimed were reduced due to divided success on the motions.

The court ordered the respondent to pay partial indemnity costs of $20,000 plus disbursements.

Following a jury verdict in a complex personal injury action arising from a motor vehicle accident involving a licensed establishment, the successful plaintiff sought partial indemnity costs exceeding $300,000.

The defendant argued that its offers to settle should affect the costs award and that the statutory deductible under s. 267.5(9) of the Insurance Act should be deducted from the damages when assessing whether settlement offers were exceeded.

The court held that the statutory deductible must not be subtracted when determining entitlement to costs, following appellate authority.

Although the defendant’s settlement offers did not comply with Rule 49.10 of the Rules of Civil Procedure, they remained relevant under Rule 49.13 as discretionary factors.

Considering proportionality, the complexity of the trial, the amount recovered compared to the amount claimed, and counsel conduct during trial, the court fixed costs at $150,000 plus HST and disbursements.

The court determined costs following a motion concerning whether a proceeding could continue as a representative action under Rule 12.08 of the Rules of Civil Procedure.

Success on the underlying motion was divided: the moving party succeeded on the central issue that the action could proceed as a representative proceeding meeting the test analogous to certification under the Class Proceedings Act, but the responding parties succeeded on issues including that only individual union members, not the union itself, could act as representative plaintiffs and that particulars were required for a negligent misrepresentation claim.

Applying the factors in Rule 57, including relative success, complexity, and conduct of the parties, the court concluded that the moving party was overall more successful.

The court awarded reduced partial indemnity costs reflecting divided success and certain pleading deficiencies.

Sentencing decision following convictions for sexual interference and invitation to sexual touching involving a child under the offender’s care.

The offender compelled the child to perform oral sex and threatened her with death if she refused, constituting a serious breach of trust by a person acting in a parental role.

The court considered aggravating factors including the offender’s position of trust, threats used to compel the sexual act, and the psychological impact on the complainant, while recognizing the offender’s lack of prior criminal record as a mitigating factor.

The court also addressed whether time spent on bail with a curfew should reduce the custodial sentence and concluded that such conditions warranted minimal credit.

Applying the principles of denunciation and deterrence and reviewing comparable appellate authorities, the court imposed a four‑year custodial sentence with credit for pre‑trial custody and several ancillary orders.

The accused was charged with aggravated assault after striking a taxi driver with a metal rod and kicking him while he lay unconscious after being punched by a co‑accused.

The defence claimed the taxi driver attacked first with a baton and that the accused neither struck nor kicked the victim.

The court rejected the accused’s testimony and that of the co‑accused, finding it inconsistent with physical evidence and the credible testimony of three independent eyewitnesses.

The court held that hitting the victim on the head with a metal rod and kicking him while unconscious created objectively foreseeable bodily harm and formed part of a joint assault with the co‑accused.

Although the permanent loss of smell was attributed to the co‑accused’s punch, the accused’s participation made him a party to the aggravated assault under s. 21(2) of the Criminal Code.

The applicant School Board sought judicial review of two OLRB decisions that allowed a union to proceed with a construction grievance despite referring it to arbitration four months past the collective agreement's 14-day deadline.

The OLRB vice-chair had ruled the timelines were directory and that the OLRB had broad discretion under s. 133 of the Labour Relations Act to extend them.

The Divisional Court quashed the decisions, holding that the collective agreement's timelines were mandatory and that neither s. 48(16) nor s. 133 of the Act granted the OLRB jurisdiction to extend the time for referring a grievance to arbitration.

The respondents were completely successful on an appeal, an application for judicial review, and an application to set aside an arbitrator's decision.

They sought partial indemnity costs of $22,651 plus disbursements and HST.

The applicants argued the amount was disproportionate and opposed joint and several liability.

The court fixed costs at $20,000 plus $1,000 in disbursements plus HST, payable jointly and severally by the applicants, noting the complexity of the proceedings and the arbitrator's finding that the applicants had committed the tort of deceit together.

The applicants, pharmacists facing discipline proceedings, sought judicial review of an interlocutory decision by the Discipline Committee denying their motion for extensive disclosure of third-party medical and billing records.

The Divisional Court declined to hear the application, finding it premature.

The court reiterated that judicial review of interlocutory administrative decisions is only available in exceptional circumstances or where jurisdiction is irretrievably lost.

Finding no denial of natural justice and noting that extensive disclosure had already been provided, the court quashed the application.

The applicants sought to appeal and judicially review an arbitrator's decision finding them personally liable for the tort of deceit in a real estate venture.

They argued the arbitrator lacked jurisdiction over them personally as they had not signed the arbitration agreement in their personal capacities.

The Divisional Court dismissed the applications, finding the applicants had agreed to arbitration by their conduct, including obtaining a prior court order referring the claims to arbitration, and had waived any jurisdictional objections by participating without complaint.

The court also held that judicial review is unavailable for private commercial arbitrations and that the arbitration agreement's 'final and binding' clause precluded any appeal.

The respondent father sought leave to appeal an interim order granting the mother interim custody and permitting her to move to Florida with the children, as well as staying the Ontario proceedings if Florida assumed jurisdiction.

The court found no conflicting decisions or reason to doubt the correctness of the interim custody and mobility orders, applying the best interests of the child test.

However, the court granted leave to appeal solely on the issue of whether the Ontario action should be automatically stayed if a Florida court assumes jurisdiction, as this relief was not requested and full submissions were not heard.