Robert J. Smith

The appellant, a lawyer, sought leave to appeal a costs decision that dismissed his claim for costs against his former clients.

The motion judge found that the appellant breached section 28 of the Solicitors' Act by acquiring his clients' interest in their action, rendering the agreement void ab initio.

The court dismissed the leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision.

The court affirmed the motion judge's proper exercise of discretion under the Courts of Justice Act, citing the unfair and prohibited nature of the agreement, the lawyer's inability to acquire a right of subrogation, and breaches of Contingency Fee Agreement Regulations, as well as the lawyer's conflict of interest.

The plaintiff, The Roman Catholic Episcopal Corporation of Ottawa (RCECO), sued the defendant insurer, l’Assurance mutuelle de l’inter-ouest (Mutuelle), for confirmation of insurance coverage for sexual abuse claims.

Initially, RCECO sought coverage for eight pre-1976 claims, which were later found to be uncovered as Mutuelle was not licensed for public liability insurance before that period.

RCECO subsequently amended its claim to include four additional claims, three of which Mutuelle recognized.

Mutuelle brought a motion for summary judgment, but the parties settled, resulting in nine claims being dismissed and three recognized.

The sole remaining issue was costs.

Mutuelle sought partial indemnity costs, arguing greater success, while RCECO sought substantial indemnity costs, citing Mutuelle's unreasonable conduct in failing to respond to coverage inquiries.

The court acknowledged Mutuelle's greater success in dismissing claims but also noted its unreasonable conduct.

Ultimately, the court declined to award costs to either party, finding RCECO's claimed costs excessive for a settled summary judgment motion.

The Crown applied to have the offender designated as a dangerous offender following his convictions for attempted murder, aggravated assault, forcible confinement, and robbery.

The offender broke into the victims' home, stabbed one victim 18 times, and slashed the other victim's throat three times while she was tied to a chair.

The court found that the offender's behaviour was of an extremely brutal nature and that he constitutes a threat to the life and safety of others.

The court designated the offender as a dangerous offender and imposed a sentence of detention in a penitentiary for an indeterminate period.

Licensed taxicab drivers and their union brought a motion for an interlocutory injunction to restrain Uber drivers from operating in Ottawa, alleging breaches of the City's taxi by-law and various economic torts.

The court found that while one taxicab driver had standing as a ratepayer and there was a serious issue to be tried, the plaintiffs failed to establish irreparable harm, as their alleged economic losses could be quantified in monetary terms.

Furthermore, the balance of convenience did not favour an injunction, given the plaintiffs' delay, their private financial interest, and the City's pending policy review of ridesharing services.

The motion for an injunction was dismissed.

The defendants successfully defeated the plaintiff's motion for an injunction regarding the processing and delivery of radioactive Cobalt-60.

The defendants sought costs of $69,000 on a partial indemnity basis, while the plaintiff argued for $25,000 or deferral to arbitration.

The court considered the complexity of the technical and legal issues, the high value of the goods involved, and the urgency of the motion.

The court fixed costs payable by the plaintiff to the defendants at $45,000 for fees and $6,000 for disbursements on a partial indemnity scale.

The accused, charged with second degree murder and attempted murder following a fatal stabbing over a drug dispute, applied for bail pending trial.

The court evaluated the proposed release plans, which included sureties and electronic monitoring.

The court found the proposed sureties to be weak and unreliable, failing to satisfy the secondary ground that there was no substantial likelihood of further offences.

Furthermore, given the strength of the Crown's case, the gravity of the offences, and the violent circumstances, the court held that detention was necessary under the tertiary ground to maintain confidence in the administration of justice.

Bail was denied.

The plaintiff municipality brought a motion to compel the defendant engineering firm to produce a Risk Management Report and answer questions refused at cross-examination.

The defendant argued the report was protected by litigation and common law privilege.

The court found the report was relevant to the issue of discoverability, as the plaintiff alleged the defendant acted in a conflict of interest by reassuring it about the quality of work.

The court held the report was not protected by litigation privilege because it was not prepared for the dominant purpose of litigation, nor was it protected by common law privilege as it did not meet the Wigmore criteria.

The motion was granted.

The defendant police board and officers brought a motion for summary judgment to dismiss the plaintiffs' claims for false detention, false arrest, negligent investigation, and breaches of sections 7, 8, and 9 of the Charter.

The claims arose after a search warrant was executed at the plaintiffs' residence, leading to the discovery of cocaine and evidence of importing prohibited stun guns.

The criminal charges were previously dismissed after the search was found to violate section 8 of the Charter.

The court granted summary judgment dismissing the claims for false arrest, false detention, and Charter breaches, finding the police had reasonable and probable grounds to arrest based on the cocaine found, and that Charter damages were inappropriate as the exclusion of evidence in the criminal trial was a sufficient remedy.

However, the court dismissed the summary judgment motion regarding the negligent investigation claim, finding a genuine issue requiring a trial to determine whether the plaintiff bears the burden of proving factual innocence to recover damages.

The plaintiff sought an interlocutory injunction preventing the defendants from terminating a cobalt irradiation services agreement and requiring continued supply of irradiated Cobalt‑60 pending arbitration.

The defendants terminated the agreement after the plaintiff failed to pay approximately $4 million in overdue invoices despite a contractual requirement that invoices be paid within 30 days.

Applying the RJR‑MacDonald test, the court held that although a limited serious issue existed regarding whether providing only 30 days’ notice to cure default complied with the duty of good faith, the plaintiff failed to demonstrate irreparable harm and the balance of convenience strongly favoured the defendants.

The court found that cancer treatment supply would not be disrupted because the product could be sourced elsewhere and existing supplies remained usable.

The motion for an injunction was denied.

The moving party sought an extension of time to file a notice of appeal and leave to appeal an order staying an earlier appeal pending the filing of trial transcripts in a family law child support dispute.

The court held that the requirement for transcripts was reasonable given that the proposed appeal challenged factual findings of the trial judge.

The moving party failed to provide transcripts, did not adequately explain a delay of approximately three and a half years, and did not demonstrate prompt action once aware that the appeal deadlines had expired.

The court also found that the proposed appeal lacked merit and did not raise an issue of general importance warranting leave to appeal.

In a criminal prosecution for robbery, the Crown brought a voir dire application seeking to admit recognition evidence from two civilian witnesses who identified the accused in surveillance video.

The defence conceded the admissibility of one witness but objected to the other on the basis that the probative value was low and the prejudicial effect outweighed it.

Applying the “prior acquaintance/better position” test articulated in Berhe and Brown, the court found the witness had sufficient prior familiarity with the accused from frequent interactions as a store customer.

The court concluded the witness was in a better position than the trier of fact to identify the accused on the video and that the probative value of the evidence outweighed any prejudice.

The recognition evidence was admitted on a threshold basis, with issues of reliability left for the jury’s assessment of weight.

The accused was charged with multiple offences arising from two incidents, including sexual assault, assault, uttering threats, unlawful entry, and breaches of recognizance conditions.

The court applied the credibility framework from R. v. W.(D.) and rejected the accused’s testimony, finding it unreliable and inconsistent with the surrounding evidence.

The complainant’s account of the February incident was accepted, supported by medical evidence of cervical bruising and corroborative circumstances.

The court found the accused guilty of sexual assault, assault in an elevator, uttering threats including threats to kill the complainant’s dog, unlawful entry into the complainant’s apartment, and several recognizance breaches.

However, the accused was acquitted of assault with a weapon and possession of a weapon due to insufficient corroboration and lack of independent evidence regarding the alleged knife incident.

The accused applied for an order requiring that his murder trial be scheduled earlier than the agreed trial date because he would have been in custody for nearly four years by the time of trial.

Granting the request would effectively require the reassignment of one of the Crown prosecutors who was unavailable on earlier court dates.

The court held that the assignment of Crown counsel is an exercise of prosecutorial discretion belonging to the Attorney General and is reviewable only for abuse of process.

As no abuse of process or improper motive was alleged or established, the court declined to interfere with prosecutorial discretion.

The application for an earlier trial date was therefore dismissed.

The plaintiffs sought continuation of an ex parte Mareva injunction freezing the defendant’s assets in a civil action alleging fraud, negligent misrepresentation, and unjust enrichment arising from more than $1.6 million paid over thirteen years for alternative therapy.

The court considered whether the plaintiffs established a strong prima facie case and whether the balance of convenience favoured continuation of the injunction.

The court found the plaintiffs failed to demonstrate a strong prima facie case, noting that the payments were voluntarily made for services provided by an astrologist and medium whose credentials were not misrepresented.

The court accepted an undertaking that the net proceeds from the defendant’s Quebec residence would be held in trust pending further order.

The Mareva injunction was therefore not continued except for the confidentiality provisions.

During an ongoing civil trial involving dealership market allocation disputes, the defendant sought permission to rely on a second supplemental expert report and to introduce maps and charts derived from previously discovered market study data.

The plaintiff argued the late expert report constituted trial by ambush and violated prior scheduling orders.

The court held that the supplemental expert opinion properly responded to new expert evidence and newly discovered data introduced during the proceedings, and its admission would not cause unfair prejudice.

The court also permitted the introduction of charts and maps derived from historical data for explanatory purposes, while refusing to authorize a new expert report from a non-designated witness responding to the opposing expert.

The appellant insurer appealed a trial judge's decision regarding the calculation of interest on retroactive attendant care benefits under the Statutory Accident Benefits Schedule.

The trial judge had ordered interest to run from the date the benefits were incurred, relying on previous case law.

The Divisional Court allowed the appeal, holding that under sections 39 and 46 of the SABS, a payment is not overdue, and interest does not begin to run, until 10 business days have elapsed after the insurer receives a Form 1 assessment of attendant care needs.

On a motion for security for costs, the moving defendant argued that Manitoba-resident plaintiffs should post security despite their purchase of adverse costs insurance.

The court held that the insurance policy was not equivalent to payment into court because coverage could be terminated and the proceeds could not be assigned, although the existence of the policy remained a mitigating factor.

Applying the justice-based inquiry under Rule 56.01, the court found the claim had some merit, the plaintiffs were financially constrained, and one plaintiff was a victim of criminal assaults arising from the same events.

In light of s. 4(2) of the Victims Bill of Rights and the circumstances as a whole, the motion was dismissed, subject to an order requiring notice if the policy was cancelled.

Decision on costs following a municipal dispute in which the respondent municipality had largely succeeded but the applicants achieved limited success on one billing issue.

The court held the success was shared and accepted that ambiguity in the municipal by-law, including the undefined term for a dwelling unit and an erroneous French equivalent, contributed to the need for judicial interpretation.

Applying the relevant costs factors, the court declined to award the full amount claimed and instead fixed costs at 2,000 $ plus HST on a partial indemnity basis.

This was a costs endorsement following a family law motion to change child support after two children changed residences.

The moving party sought $17,857.18 on a full indemnity basis.

The court held that the matter should not have required a motion, involved miscommunication by both parties, and lacked complexity.

Although the moving party was successful on the motion, only $4,500 inclusive of disbursements and HST was awarded.

This was a family law costs endorsement following a complex summary judgment motion.

The respondent, who had been completely successful on the motion, sought full indemnity costs after exceeding the terms of an offer to settle.

The court held that Rule 18 of the Family Law Rules entitled the successful party to full costs from the date of the offer and, considering the Rule 24 principles, fixed costs at $18,500 inclusive of HST and disbursements.

The applicants' arguments about excess time and partial indemnity were rejected.