Robert J. Smith

In a libel action, the plaintiff brought a refusals motion seeking an order compelling a deponent to re‑attend cross‑examination and answer questions she had refused on instructions from the defendant.

The court considered whether questions relating to the witness’s relationship with the defendant, prior criticisms of the plaintiff, drafting of the affidavit, and communications between the witness and the defendant were relevant.

Applying authorities on cross‑examination to establish bias and credibility, the court held that inquiries aimed at testing a witness’s reliability, independence, and potential partiality are permissible.

Most of the refused questions were found relevant to credibility and weight of the affidavit evidence.

The witness was ordered to re‑attend and answer specified questions and any follow‑up questions.

The applicants brought a defence motion seeking exclusion of all evidence obtained during the execution of a search warrant at a specified property.

In light of the Crown’s stated position and the Ontario Court of Appeal decision in R. v. Rocha, the court granted the application.

The ruling excluded all evidence obtained through the execution of the search warrant.

The court indicated that more detailed reasons would be provided if requested by counsel and invited further submissions regarding the impact of the ruling on the charges and any potential trial.

Following an unopposed application removing a co‑executor for misconduct, the court addressed costs.

The evidence established that the co‑executor misappropriated estate funds, frustrated asset sales, and commenced unauthorized legal proceedings in the name of the estate.

Applying Rule 57 of the Rules of Civil Procedure, the court found the conduct scandalous and warranting substantial indemnity costs.

However, the court reduced the claimed preparation time as disproportionate for an unopposed application.

Costs were ordered payable personally by the respondent rather than from the estate.

Following a successful response to a refusals motion, the plaintiff sought substantial indemnity costs arising from the defendant’s extensive and unsuccessful motion materials seeking answers to numerous discovery questions.

The defendant, self‑represented, argued that costs should be reduced due to his status, alleged inability to pay, and the fact that the plaintiff’s legal fees were funded by her employer.

The court applied the factors in Rule 57 of the Rules of Civil Procedure and held that self‑representation does not reduce responsibility for costs when a party brings an extensive and unsuccessful motion.

Although the motion materials were excessively lengthy, the conduct did not justify substantial indemnity costs.

Partial indemnity costs were fixed with reductions to certain research time and preparation claims.

Former employees and a competing corporation moved to set aside or vary an interim injunction and Anton Piller order obtained ex parte by their former employer.

The employer alleged the employees copied large volumes of confidential engineering files relating to proprietary sonar technology before leaving to establish a competing business.

The court found strong prima facie evidence of copying confidential files in breach of confidentiality agreements, a risk of serious commercial harm, and a real possibility that electronic evidence could be destroyed.

The balance of convenience favoured maintaining the injunction and preservation measures.

The injunction remained in effect and the Anton Piller order was varied largely on consent while preserving seized materials under the supervision of an independent supervising solicitor.

The Crown sought an interlocutory injunction preventing the defendant language training business from copying or distributing materials substantially similar to federal Second Language Evaluation tests used for public service hiring.

The court applied the test for interlocutory injunctions and found a serious issue to be tried regarding copyright infringement in Crown-created examination materials.

It concluded that prior access to official test questions would undermine the integrity of the federal language testing regime and cause irreparable harm to the public interest and the Public Service Commission’s mandate.

The balance of convenience favoured protecting the confidentiality of the tests while allowing the defendant to continue operating her business using other materials.

An injunction was granted restraining further use of the protected test content pending trial.

In a defamation action arising from blog posts criticizing the plaintiff’s report on systemic racism at a university, the defendant brought a motion addressing refusals made during cross‑examination on a champerty and maintenance motion.

The defendant argued that the university’s agreement to fund the plaintiff’s legal fees constituted champerty and maintenance and sought answers to questions concerning the plaintiff’s academic background, financial situation, selection of counsel, and communications with the university.

The court held that most of the questions were irrelevant to the champerty motion because the university had admitted it agreed to fund the litigation and the details sought did not assist in determining whether the arrangement involved improper intermeddling or profit‑sharing.

The court also rejected an attempt to introduce expert opinion evidence regarding email communications as irrelevant and unnecessary.

The refusals were largely upheld and a request to strike re‑examination evidence was denied.

A youth care worker brought a civil action against her employer and supervisor after being violently assaulted and sexually assaulted by a resident at a group home.

The defendants’ statement of defence was struck and they were noted in default, leaving a trial solely on damages.

The court permitted an amendment to increase the claimed damages because the defendants had notice and suffered no prejudice.

Applying principles governing non‑pecuniary damages for sexual assault and workplace negligence, the court awarded substantial general damages including aggravated damages, together with damages for past and future income loss supported by expert evidence.

The defendants were held jointly and severally liable for the total damages award.

The offender was convicted of aggravated assault after striking a taxi driver with a metal rod while acting jointly with a co‑accused who punched the victim and knocked him to the ground.

The victim suffered a fractured skull, a coma lasting several days, lengthy hospitalization, rehabilitation, and permanent loss of smell.

The court considered aggravating factors including the unprovoked group attack, use of a weapon, severe and lasting injuries, the vulnerability of taxi drivers, and the offender’s lengthy criminal record and lack of remorse.

The court addressed parity with the co‑accused’s lesser sentence but held that mitigating factors available to the co‑accused did not apply.

Applying principles of denunciation and deterrence, the offender was sentenced to three years’ imprisonment with credit for pre‑trial custody on a one‑for‑one basis.

Following a motion for contempt relating to denial of parenting access, the court determined the appropriate costs award under Rule 24 of the Family Law Rules.

The moving party obtained a finding of contempt for failure to comply with an access order for a limited period after a child protection investigation concluded, while the responding party successfully defended other contempt allegations relating to access denied during the investigation and missed telephone access.

The court found success on the motion to be divided and the matter to be of average complexity.

However, the respondent’s failure to comply with the court order without seeking a variation justified a costs consequence.

The respondent was ordered to pay partial indemnity costs to the moving party.

Following a property dispute involving Hydro lines located on neighbouring land, the parties resolved the substantive issue by consent requiring removal of the lines.

The remaining issue concerned the quantum and scale of costs payable to the successful applicants.

The court considered the factors in Rule 57 of the Rules of Civil Procedure, including success, proportionality, settlement offers, hourly rates, and the reasonable expectations of the losing party.

Although the applicants were successful, the court held that substantial indemnity costs were not justified because the conduct was not reprehensible and no Rule 49 offer applied.

Costs were fixed at a reduced amount reflecting partial indemnity principles and proportionality.

The accused was charged with multiple counts relating to trafficking in cocaine and possession for the purpose of trafficking following undercover police operations involving text message communications.

The accused argued that he was entrapped because the undercover officer used flirtatious and sexually suggestive messages to induce him to sell cocaine.

The court applied the entrapment framework from R. v. Mack and held that the police had reasonable suspicion that the accused was engaged in drug trafficking before initiating contact.

Although the officer used sexually suggestive language to build rapport, she never promised sexual favours or rewards in exchange for drugs.

The court concluded that the accused was already engaged in drug trafficking and that the transactions were ordinary business exchanges rather than inducement by police conduct.

The respondent father brought a motion seeking a finding of contempt against the applicant mother for denying court‑ordered access and failing to provide telephone access at the exact times specified in a prior order.

The mother argued that she followed a written directive from a child protection agency instructing her to suspend contact during an investigation and that deviations from telephone access occurred due to the child’s baseball schedule while alternate times were offered.

The court applied the civil contempt test requiring proof beyond a reasonable doubt of deliberate and wilful breach of a clear order.

The court dismissed the contempt allegations related to denial of access during the investigation and telephone access scheduling, finding the conduct was not deliberate.

However, the court found the mother technically in contempt for gradually restoring access after the investigation concluded rather than immediately complying with the order, but held she had purged the contempt by subsequently complying for several months.

Following the dismissal of the plaintiff's action on a motion for summary judgment, the successful defendants sought costs of $23,895.43.

The plaintiff argued for reduced costs because the defendants brought two separate summary judgment motions when one would have sufficed.

The court agreed that the duplication of proceedings warranted a reduction and fixed the defendants' costs at $10,000 inclusive of disbursements and HST.

Following a family law motion addressing issues including custody, access, child support, and sale of the matrimonial home, the successful party sought full recovery costs exceeding $17,000.

The court applied Rule 24 of the Family Law Rules and considered factors such as success, reasonableness of the parties’ conduct, complexity of the motion, proportionality, and expectations of the unsuccessful party.

While the successful party prevailed on the issues addressed at the motion, the court found the circumstances did not justify full indemnity costs because the conduct of the opposing party was not outrageous or vexatious and no offer to settle had been exceeded.

The court therefore assessed costs on a partial indemnity basis and considered the reasonable expectations of the unsuccessful party.

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 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.