SCJ 2012

Following a successful motion by the plaintiffs for leave to issue a Certificate of Pending Litigation and dismissal of a defendant’s cross-motion to strike affidavit evidence, the court determined the issue of costs.

The plaintiffs sought partial-indemnity costs supported by a detailed bill of costs.

The defendant argued that costs should be reserved for the trial judge due to limited financial resources, potential indemnification rights, and the plaintiffs’ CCAA protection.

The court held that impecuniosity, potential indemnification, and speculative trial costs considerations were not valid reasons to deny or delay a costs award.

Partial-indemnity costs were awarded to the successful moving parties.

In a murder prosecution, the Crown sought to admit multiple statements made by the accused during police interviews and at the scene of a medical emergency involving a child.

The defence argued the statements were involuntary and obtained in breach of ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms.

The court conducted a voir dire examining voluntariness under the confessions rule and the accused’s right to silence.

Some statements were admitted where the accused attended voluntarily and spoke without coercion, while other statements were excluded where police interrogation ignored repeated assertions of the right to remain silent or involved oppressive questioning.

The ruling provides a contextual analysis of voluntariness and the interaction between the confessions rule and Charter protections.

The defendant and third party sought an order bifurcating the trial of the main action and the third party claim arising from a construction tender dispute relating to baggage handling infrastructure at an airport.

The plaintiff opposed the motion, arguing that the rules presume the main action and third party claim will be tried together and that the factual issues overlap.

The court held that the moving parties had not sought leave to bring the motion after the action had been set down for trial, which alone justified dismissal.

The court further found that the claims shared common factual underpinnings concerning the tendering process and that bifurcation would create inefficiencies and risk inconsistent findings.

The motion to try the third party claim separately was dismissed.

Following a successful motion dismissing the action, the defendant sought partial indemnity costs of $25,292.42.

The plaintiffs argued that no costs should be awarded or, alternatively, that costs should be limited to $5,000, asserting that many steps taken by the defendant were unnecessary and that the governing jurisdictional authority evolved after the action commenced.

The court applied s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable.

Considering the complexity of the motion, the conduct of counsel during cross-examinations, and the fact that the motion resolved the entire action, the court reduced the requested amount.

Costs were fixed at $15,000 payable to the successful defendant.

The plaintiff bank brought a motion for summary judgment to enforce a personal guarantee executed by a shareholder of a corporate borrower for an operating line of credit.

The defendant guarantor argued that the claim should be dismissed for delay and that his liability ended after he sold his shares, the borrower declared bankruptcy, and a co‑shareholder agreed to indemnify him.

The court held that the wording of the continuing guarantee preserved liability despite changes in ownership, bankruptcy of the borrower, or insolvency of an indemnifier.

The court also found that the action’s delay did not justify dismissal because the case was document‑driven and no actual prejudice was established.

Summary judgment was granted to the bank for the guaranteed amount.

The defendant insurer brought a motion to amend its statement of defence in a long-term disability action and sought production of documents relating to the plaintiff’s prior tort settlement arising from the same motor vehicle accident.

The proposed amendments pleaded rights of subrogation and set-off based on the plaintiff’s recovery for income loss from the tort action.

The court held that s. 267.8(17) of the Insurance Act eliminates an insurer’s right of subrogation in respect of payments for income loss under an income continuation benefit plan arising from a motor vehicle accident.

The proposed pleadings asserting subrogation and set-off were therefore legally untenable and had no realistic prospect of success.

As a result, those amendments were refused and the related document production request was dismissed, although other unrelated amendments were permitted.

The applicant father and respondent mother both sought sole custody of their two-year-old son.

The mother also sought permission to relocate with the child from St. Catharines to Kingston to live with her new husband.

The court found that the child had thrived under a shared parenting arrangement in St. Catharines, where he had extensive extended family support.

Applying the principles from Gordon v. Goertz and Berry v. Berry, the court determined that relocating to Kingston would significantly disrupt the child's relationship with his father and extended family, and was not in his best interests.

The court ordered joint custody and a shared parenting schedule, and prohibited the relocation.

Following a five‑day trial varying child support and determining income for support purposes, the court addressed costs.

The applicant father sought partial recovery of $45,000 in costs after successfully obtaining a variation of child support from May 2006 onward.

The court considered the presumption of costs under the Family Law Rules, the parties’ settlement offers, and the proportionality and reasonableness factors under r. 24.

Although the applicant achieved greater success and had made an offer more favourable than the trial result, the court reduced the requested amount due to proportionality concerns and the applicant’s unreasonable conduct in failing to pay child support for 44 months.

Costs of $25,000 were awarded to the applicant.

The plaintiffs sought leave to appeal orders removing their solicitor of record and awarding costs.

The motion judge considered the test under Rule 62.02(4) of the Rules of Civil Procedure for granting leave to appeal.

The underlying orders were based on a conflict of interest arising from a solicitor’s prior solicitor-client relationship and the potential use of confidential information, applying the principles from Martin v. MacDonald Estate (Gray).

The court found no good reason to doubt the correctness of the original decision removing counsel and awarding costs.

Leave to appeal was refused and the parties were ordered to bear their own costs of the motion.

The applicant sought an uncontested divorce, but the respondent requested an order compelling him to maintain her under his extended health and dental benefits.

The parties had a separation agreement containing a mutual release of spousal support, even in the event of catastrophic health changes.

The court applied the Miglin framework and found that the respondent's subsequent severe health issues (diabetes, heart attack, motor vehicle accident) constituted a significant departure from what was reasonably anticipated.

Balancing the need to address hardship with the goal of finality, the court stayed the divorce application for one year, requiring the applicant to maintain the respondent's health coverage during that time.

Following a motion in which the plaintiff unsuccessfully sought to add a non-party individual as a defendant and obtain immediate judgment against him, the court determined the appropriate costs disposition.

The non-party sought substantial indemnity costs, arguing the motion was ill-conceived and lacked a pleaded claim.

The court held that although the motion lacked merit, the circumstances did not justify substantial indemnity costs.

Partial indemnity costs were awarded to the non-party, payable by the plaintiff, while the plaintiff was separately awarded substantial indemnity costs against the corporate defendant after succeeding on a summary judgment motion following the defendant being noted in default.

The respondent employee was entirely successful on an appeal from a Small Claims Court decision regarding wrongful dismissal.

The court received written submissions on costs.

The respondent sought full indemnity costs of $12,915.90, while the appellant employer argued each party should bear their own costs or alternatively pay $7,300.

The court rejected the appellant's argument for no costs and found no justification for full indemnity.

The court fixed the respondent's costs on a partial indemnity basis at $8,500 plus HST.

The applicant brought an application to enforce a farm buyout agreement entered into with his late mother.

The respondent, acting as the estate trustee, refused to transfer the farm, alleging that the applicant had not made the required payments, that the receipts were fraudulent, and that the applicant had breached the agreement by altering the farm operations.

The court found that the respondent failed to prove the fraud allegations and that the applicant had provided sufficient corroborating evidence of payment.

The court ordered the applicant to pay the remaining $4,500 balance and directed the respondent to transfer the farm property to the applicant.

The offender was convicted by a jury of second degree murder for his role in the stabbing death of the victim, whose body was subsequently burned and dumped in a ditch.

The Crown sought a parole ineligibility period of 20 years, while the defence argued for 12 to 14 years.

The court considered the brutal nature of the group attack, the extensive efforts to destroy evidence, and the offender's continued violent behaviour while in custody.

The court sentenced the offender to life imprisonment with no eligibility for parole for 15 years.

The accused applied for a declaration that he was unfit to stand trial on three counts of dangerous driving causing death following a high-speed motor vehicle accident that resulted in the deaths of three passengers and caused him a traumatic brain injury.

The defence relied on expert evidence asserting that the accused suffered from frontal lobe dementia and severe cognitive impairment rendering him unable to participate meaningfully in the trial process.

Crown experts concluded that the accused retained sufficient cognitive capacity and that test results suggested malingering.

Applying the “limited cognitive capacity” test from R. v. Taylor, as affirmed in R. v. Whittle and R. v. Morrissey, the court held that the defence failed to prove on a balance of probabilities that the accused was unfit.

The presumption of fitness therefore remained and the application was dismissed.

A creditor applied for a bankruptcy order against the respondent debtor under s. 43 of the Bankruptcy and Insolvency Act based on multiple unpaid judgments exceeding $5 million.

The debtor conceded that an act of bankruptcy had occurred but argued the application should be dismissed under s. 43(7) because it was brought for an improper purpose and because bankruptcy would produce no benefit for creditors.

The court rejected allegations that the application was motivated by malice, finding it was a legitimate attempt by a judgment creditor to enforce a debt, particularly given the existence of additional unpaid judgments.

The court also rejected the debtor’s unsupported claim of having no assets, concluding that a trustee’s investigation could uncover realizable assets.

The application was granted and the debtor was adjudged bankrupt.

The defendants brought a motion for security for costs under Rule 56 in an action arising from a failed real estate transaction and subsequent landlord‑tenant disputes.

The self‑represented plaintiff alleged fraud and misrepresentation relating to a Seller Property Information Statement and sought extensive damages against the vendors and real estate agents.

The court found that the defendants met the threshold under Rule 56 due to outstanding unpaid costs awards and concerns that the action was frivolous or vexatious.

The plaintiff failed to prove impecuniosity or provide evidence supporting financial hardship.

Security for costs was therefore ordered, with different amounts depending on whether the plaintiff proceeded under the regular or simplified rules.

The bankrupt appealed a registrar’s determination concerning the characterization of a disability tax credit refund received during bankruptcy.

The issue was whether the refund constituted “property” under s. 67 of the Bankruptcy and Insolvency Act or “income” under s. 68.

Relying on prior bankruptcy jurisprudence and policy considerations underlying the disability tax credit, the court held that the credit functions to augment income available to persons with disabilities.

Accordingly, the refund was properly treated as income under s. 68 of the Act rather than property of the estate.

Following a jury trial in two related motor vehicle personal injury actions where the plaintiffs recovered no damages, the defendants sought substantial partial indemnity costs exceeding $178,000 against one plaintiff.

The court considered the general principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including reasonableness, the indemnity principle, and access to justice.

The plaintiff argued that costs should be nominal or none due to financial hardship, lack of employment, and the presence of some medical evidence supporting the claim.

The court held that while unsuccessful litigants should generally pay costs, impecuniosity and hardship may be considered in fixing the quantum.

Balancing these factors, the court reduced the costs significantly and ordered the plaintiff to pay $35,000.

Following a jury trial involving two related actions, the court addressed the issue of costs.

The court held that the same cost considerations applied to both plaintiffs in the related proceedings.

As a result, the plaintiff in this action was ordered to pay costs to the defendants.

The court fixed the costs payable at $35,000.