SCJ 2012

Following the defendant’s successful motion to strike the statement of claim and the plaintiffs’ unsuccessful motion to amend, the court determined the appropriate costs award.

The defendant sought substantial indemnity costs totaling more than $32,000, arguing the action resembled a strategic lawsuit against public participation (SLAPP) intended to silence complaints made to the Office of the Superintendent in Bankruptcy.

The court accepted that the defendant was entirely successful but held that the defendant’s original costs outlines represented a reasonable expectation of costs payable by an unsuccessful party.

Costs were therefore fixed partly on a partial indemnity basis and partly on a substantial indemnity basis, with additional costs for the action.

The court declined to add additional amounts for Quebec counsel or expanded claims beyond the original outlines.

Following a four‑day family law trial primarily concerning custody of the parties’ children, the court addressed costs.

The trial resulted in a shared custody order, retroactive child support, and ongoing spousal support, with the applicant largely successful except on retroactive spousal support.

Applying Rule 24 of the Family Law Rules, the court found the applicant achieved substantial success and was presumptively entitled to costs.

Because the applicant obtained a result equal to or better than her formal offer to settle under Rule 18, she was entitled to partial indemnity costs up to the date of the offer and full indemnity costs thereafter.

Costs were fixed at $16,180 inclusive of HST.

Sentencing decision for possession of a restricted firearm together with readily accessible ammunition.

Police executed a search warrant at an apartment where the accused attempted to discard a handgun through a window; numerous rounds of ammunition and a magazine were also discovered in the residence.

Although the court previously found a breach of the accused’s s. 8 Charter rights relating to the search warrant, the evidence was admitted under the framework in R. v. Grant.

The court emphasized denunciation and deterrence in firearms offences, particularly where the accused possessed a handgun and large quantities of ammunition in a residence with young children while subject to a prohibition order.

Considering both mitigating factors and significant aggravating features, the court imposed a penitentiary sentence.

The applicant, previously declared a vexatious litigant, sought leave to bring motions concerning spousal support and access to a child.

The court reviewed the requirements imposed by an earlier order requiring leave before commencing proceedings and requiring proof that all outstanding costs orders had been satisfied.

The court found the issues raised had already been recently determined in a prior motion for leave before another judge and that no new evidence justified reconsideration.

Additionally, the applicant failed to provide satisfactory proof that all outstanding costs orders had been paid as required by the earlier order.

The court concluded the matters were res judicata and dismissed the motion for leave.

Following competing summary judgment motions in a civil commercial dispute, the court addressed the issue of costs.

The plaintiff’s summary judgment motion had previously been dismissed, while the defendant’s cross‑motion was found premature and allowed to be brought again after discoveries.

The plaintiff argued that the defendant should not receive costs because it withdrew one cross‑motion and the remaining motion was premature.

The court found that misleading and contradictory evidence advanced by the plaintiff undermined the litigation process and forced the defendant to bring the cross‑motions.

Considering the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs.

On an ex parte application under s. 3 of the Bulk Sales Act, the applicants sought an exemption from the Act for a financing transaction involving the sale of certain equipment leases and related assets to a limited partnership.

The court considered whether the transaction constituted a “sale in bulk” outside the ordinary course of business.

While expressing doubt that the transaction fell within the type of asset disposition targeted by the Act, the court proceeded to analyze the exemption request.

Finding that the transaction would be advantageous to the applicants and would not impair their ability to pay creditors, the court granted the exemption for the proposed transaction only.

The court declined to grant any blanket exemption for future transactions and directed that any subsequent application be brought on notice to the Attorney General of Ontario.

The applicants, comprising the First Leaside group of companies, sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) to conduct an orderly wind-down of their operations.

The court found that the applicants, viewed as a group, were insolvent and that the CCAA could be appropriately used for a liquidating proceeding.

The court also granted super-priority Administration and D&O Charges, dismissing arguments from secured creditors that provincial paramountcy issues precluded such priorities without further notice.

The court determined costs following the dismissal of a summary judgment motion brought under Rule 20 of the Rules of Civil Procedure.

The plaintiff, as the successful party on the motion, sought full recovery of legal fees exceeding $9,000.

The moving defendants argued that no costs should be awarded or that costs should be in the cause, emphasizing that the motion was reasonably brought and that a key appellate authority relied upon by the court was released after the motion was argued.

The court found no evidence of unreasonable conduct or bad faith to justify substantial indemnity costs and instead awarded partial indemnity costs.

Costs were fixed at $5,500 payable forthwith.

The appellant appealed criminal harassment convictions arguing that the trial judge erred in refusing a stay of proceedings for breach of the right to be tried within a reasonable time under s. 11(b) of the Charter.

The court found that several periods of delay had been incorrectly characterized as neutral, including delay caused by late disclosure, the Crown’s failure to subpoena witnesses, and the Crown’s late filing of written submissions.

Properly characterized, a substantial portion of the delay was attributable to the Crown and institutional factors, exceeding the Morin guidelines.

The appellant had also demonstrated actual prejudice resulting from restrictive bail conditions that interfered with employment and personal life.

The court concluded that the delay was unreasonable and granted a stay of proceedings.

Following a complex family law trial, both parties sought costs.

The court analyzed the parties' respective success at trial compared to their offers to settle.

Finding that neither party beat their offers to settle and both engaged in some unreasonable conduct, the court awarded the applicant partial indemnity costs based on her overall success at trial, reduced by 25% due to her unreasonable positions that lengthened the trial.

The applicant wife brought an emergency, ex parte motion for a preservation order over the respondent husband's assets, primarily his recently commuted pension.

The husband had failed to disclose the details of his retirement package and the transfer of pension funds.

The court found the urgency threshold was met due to the husband's lack of transparency, but held the requested order over all assets was disproportionate.

The court granted a partial preservation order over two GICs and the matrimonial home.

No costs were awarded to the applicant because her counsel failed to give notice of the motion to the husband's active counsel.

Following an earlier ruling granting a motion removing the plaintiff’s lawyers of record, the moving defendants sought a costs award.

The motion had involved the issue of whether counsel could continue acting where a former client might become a witness for the opposing party.

The court noted the ruling depended on the likelihood that a particular individual would testify at trial, a matter that remained uncertain.

Given the unusual circumstances and the possibility that the witness might not ultimately be called, the court held it would be inappropriate to fix costs or determine responsibility for them.

Costs were therefore reserved to the trial judge.

The applicant mother brought a motion seeking contribution from the respondent father toward children's special expenses under s. 7 of the Child Support Guidelines, as well as direct payment pending enforcement by the Family Responsibility Office.

The court considered whether various expenses—including extracurricular activities, swimming, skating, gymnastics, school lunches, and day camp—qualified as reasonable special expenses.

The court held that extracurricular activities and certain program costs were reasonable and consistent with the family's pre‑separation spending patterns, but declined to order contributions for school lunches and previously agreed summer camp costs.

The father was ordered to pay 80% of specified expenses and to contribute a monthly amount toward ongoing extracurricular costs pending trial.

Costs of the motion were awarded partially to the mother.

Sentencing following convictions for three robberies, two counts of using an imitation firearm during the commission of an indictable offence, and assault with a weapon.

The offender suffered from schizophrenia and had shown significant stabilization and improvement through psychiatric treatment in the community.

The court considered whether the seriousness of the robberies required a penitentiary sentence of two years or more, which would preclude a conditional sentence under the framework in R. v. Proulx.

Balancing denunciation and deterrence against rehabilitation and the risk that incarceration would significantly worsen the offender’s mental health, the court determined a global sentence under two years was appropriate.

A blended sentence was imposed consisting of a conditional sentence, a mandatory custodial term for the imitation firearm offences (reduced after enhanced pre‑trial custody credit), and probation.

Following dismissal of a civil action after a three‑day trial, the successful defendant sought partial indemnity costs.

The plaintiff conceded entitlement to costs but argued that the amount claimed—approximately two‑thirds of the defendant’s actual legal fees—was excessive and proposed a lower award based on a percentage of actual costs.

The court held that costs awards are discretionary and not determined by applying a strict formula.

After reviewing the hours spent, allocation between counsel and clerks, and the rates charged, the court found the claimed amounts reasonable despite the issues being relatively straightforward.

The court awarded the full amount of costs requested by the defendant.

Following separation, the parties disputed retroactive and ongoing child and spousal support.

The respondent had voluntarily paid support for a period but later terminated all payments, forcing the applicant to pursue litigation.

The court declined to award retroactive support for the earliest post‑separation period but held that the respondent was responsible for unpaid support after he unilaterally stopped payments.

The court refused to impute additional income to the applicant, finding her efforts to operate a small business while caring for the children reasonable in the circumstances.

The prior consent support order was confirmed and made retroactive for the unpaid period, and new ongoing support levels were set based on the respondent’s income.

Following a jury trial in a personal injury action, the court addressed a post‑trial issue concerning the deductibility of disability insurance benefits received by the plaintiff.

The court determined that the jury had already effectively accounted for the benefits in its award and noted that the insurance had been privately purchased by the self‑employed plaintiff rather than provided through employment.

As a result, the plaintiffs were deemed successful and entitled to costs.

Upon reviewing the plaintiffs’ Bill of Costs, the court found the claimed hours excessive and reduced the recoverable legal fees while allowing disbursements and HST.

Costs were awarded in a reduced amount.

The appellant appealed a Master's order transferring the defamation action and place of trial from Toronto to Hamilton.

The defamation claim arose from media reports following the withdrawal of murder charges against the appellant in Hamilton.

The appellant argued he could not get a fair jury trial in Hamilton due to extensive prejudicial publicity.

The Superior Court of Justice allowed the appeal, finding the Master erred in law by failing to properly address whether the appellant had a reasonable apprehension of bias in Hamilton.

The court also found the Master's inclusion of irrelevant personal views regarding the murdered parents of the responding party amounted to an effective denial of a fair hearing.

The appellant appealed his conviction for impaired driving, arguing that the verdict was unreasonable and that the trial judge improperly relied on evidence obtained following a breach of the right to counsel under s. 10(b) of the Charter.

Although the breath test results were excluded under s. 24(2), the appellant contended that other observations made after the breach should also have been excluded.

The appeal court held that the trial judge properly assessed the evidence and that police observations of impairment, including driving behaviour and physical indicia of intoxication, were admissible and sufficient to support the conviction.

No error in principle or palpable and overriding error was established.

The conviction was upheld.

Following a motion concerning interim support on a mature family law file, the court addressed costs after written submissions.

The respondent to the underlying motion sought full indemnity costs exceeding $37,000, citing the other party’s failure to provide proper financial disclosure and litigation conduct that had prolonged the proceedings.

The court emphasized that frank and complete disclosure is fundamental in family litigation and that failure to provide disclosure may justify investigative costs, including expert reports.

While the court declined to award full indemnity costs due to the presence of a settlement offer, it found the responding party’s conduct justified enhanced partial indemnity costs.

Costs of $25,000 inclusive of disbursements were awarded and made enforceable in the same manner as support.