SCJ 2014

Following dismissal of an appeal concerning a municipal dispute over property use, the court addressed the issue of costs.

The respondent municipality sought substantial indemnity costs based on allegations of misconduct made by the appellant and the procedural complexity caused by the self-represented litigant.

The court held that elevated costs require reprehensible or outrageous conduct and declined to award substantial indemnity.

However, the court accepted that the appellant’s conduct significantly prolonged the litigation and increased costs.

After reducing certain disbursements and adjusting fee amounts, the court fixed partial indemnity costs payable by the appellant.

In a divorce proceeding, the respondent spouse sought a lump‑sum spousal support award to be satisfied through division of the applicant’s pension after the applicant’s post‑separation bankruptcy eliminated any potential equalization payment.

The court held that an equalization claim constitutes a provable debt in bankruptcy and is extinguished upon discharge unless the stay is lifted during the bankruptcy process.

The respondent had knowledge of the bankruptcy but failed to take timely steps to lift the stay and therefore could not indirectly pursue equalization through a lump‑sum spousal support award.

The court rejected compensatory and unjust enrichment claims but awarded limited periodic spousal support due to economic hardship caused by joint debts addressed through a consumer proposal.

Support was ordered to commence when the applicant resumed employment or received long‑term disability benefits and to terminate on December 31, 2015.

Following a family law decision determining a child’s principal residence and adjusting child support, the successful party sought costs of $10,000.

The court applied Rule 24 of the Family Law Rules and considered the complexity of the issues, the conduct of both parties, the reasonableness of counsel’s rates, and the overall fairness of the claimed costs.

The court noted that the unsuccessful party, who was self‑represented, had behaved reasonably, while the successful party had failed to timely disclose an income increase affecting support obligations.

After adjusting the costs outline to remove inappropriate or duplicated charges and considering the financial circumstances of the unsuccessful party, the court awarded reduced partial indemnity costs.

The costs were ordered payable by installments with interest on any outstanding balance.

The accused was charged with dangerous driving causing death after failing to stop at a stop sign and colliding with a vehicle travelling on a through road.

The court found the actus reus established because driving through the stop sign created a significant risk to other road users.

However, applying the principles from Supreme Court of Canada authorities on dangerous driving, the court held that the evidence did not establish a marked departure from the standard of care of a reasonable driver.

The evidence suggested either a momentary lapse of attention or a negligent misjudgment when performing a rolling stop.

Such conduct, while careless and potentially giving rise to civil liability or provincial offences, did not meet the criminal threshold for dangerous driving.

The appellant appealed convictions for two counts of assault with a weapon and one count of possession of a weapon dangerous to the public peace arising from a street altercation involving multiple participants.

He argued the trial judge misapprehended key identification evidence, improperly relied on hearsay to support continuity of identification, and failed to consider self-defence.

The appeal court held the trial judge properly assessed the reliability of eyewitness testimony, applied the W.(D.) framework, and did not rely on hearsay for a prohibited purpose.

The court further found no air of reality to a self-defence claim given the defence theory that the appellant did not possess the knife.

Leave to appeal sentence was granted, but the sentence was found to be within the acceptable range.

The applicant brought a Garofoli application seeking to set aside a search warrant executed at her apartment and to exclude evidence seized during the search, including significant quantities of cocaine and cash.

The defence argued the Information to Obtain relied on confidential informants whose reliability and corroboration were insufficient under the Debot framework, and that the search violated s. 8 of the Charter.

Applying the adapted step‑six Garofoli procedure, the court reviewed redacted and unredacted materials and permitted limited cross‑examination of the affiant while protecting informer privilege.

The court found the informants’ information credible, reliable, and corroborated by police investigation, including surveillance and other evidence.

The search warrant was therefore properly authorized and no Charter breach occurred; in the alternative, the evidence would have been admitted under s. 24(2).

The parties separated after a 22-year common law relationship.

The applicant husband and respondent wife had extensively integrated their finances, pooling incomes and sharing expenses.

The court found the parties were engaged in a joint family venture and that the husband was unjustly enriched by retaining a disproportionate share of assets, including RRSPs, a life insurance policy, and Aeroplan miles.

The court ordered an equal division of joint assets, an RRSP rollover to equalize retirement savings, a declaration of trust for half the life insurance policy, and lump sum spousal support for the wife.

The plaintiff brought a motion under rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s administrative dismissal of an action for delay under rule 48.14.

The action concerned unpaid legal fees allegedly owed by the defendant for legal services related to land and boundary claims.

The court applied the contextual analysis derived from the Reid factors, assessing the explanation for delay, inadvertence, promptness of the motion, and prejudice.

Although the plaintiff failed to provide satisfactory explanations for litigation delay and did not bring the motion promptly, the court accepted that the missed deadline resulted from counsel’s inadvertence and found that the defendant would suffer no real prejudice because the claim would largely be determined through preserved documentary evidence.

Balancing the competing principles of timely litigation and adjudication on the merits, the court concluded it was in the interests of justice to set aside the dismissal.

The accused was charged with sexual interference and sexual assault against a six-year-old complainant whom he babysat in 2006.

The trial, held years later when the complainant was 13, centered on credibility and reliability.

The complainant testified that the accused licked her vaginal area, while the accused denied the incident occurred and suggested she was malicious and untruthful.

Applying the W.(D.) framework, the trial judge found the complainant's evidence straightforward and reliable despite minor memory lapses on collateral matters, and rejected the accused's evidence.

The accused was found guilty on both counts.

Following judgment granting the applicant ownership and possession of a property and partial monetary relief against the respondents, the court addressed costs.

Although the applicant was successful on the principal issue and recovered some monetary relief, she had claimed substantially larger damages and succeeded on only a fraction of those claims.

Both parties had taken extreme litigation positions and rejected settlement opportunities.

Considering the discretionary factors under Rule 57.01 of the Rules of Civil Procedure and the familial context of the dispute, the court concluded that neither side achieved sufficient success to justify a costs award.

The court ordered that each party bear their own costs.

Following a motion in a simplified procedure action involving a claim for corporate oppression and production of documents, the court determined the issue of costs.

The moving party had largely succeeded on the underlying motion, including obtaining leave to amend the statement of claim to add an oppression remedy under the Canada Business Corporations Act and compelling answers to undertakings and production of financial records.

Applying Rule 57 of the Rules of Civil Procedure, the court considered complexity, proportionality, success, conduct of the parties, and the time and rates claimed.

The court held that the success on the motion justified an award of costs, but that the conduct alleged did not warrant elevated costs.

Costs were therefore fixed on a partial indemnity scale.

The Attorney General of Canada was completely successful on a motion to stay the plaintiffs' claim and sought costs.

The court found the Attorney General's claimed costs excessive as the matter was not complex and the case law was overwhelmingly in its favour.

Costs were fixed at $8,000 on a partial indemnity basis, payable in any event of the cause rather than forthwith, due to the pending decision on whether the action is barred by section 9 of the Crown Liability and Proceedings Act.

The individual defendants who supported the motion were denied costs as they contributed little to the debate.

The applicant sought interim shared custody of a young child, while the respondent opposed the request.

The court held that shared custody was not in the child’s best interests on the interim record but ordered expanded access including periodic overnight parenting time.

The court also ordered the applicant to pay guideline child support and interim spousal support after considering the parties’ incomes, including questions surrounding the respondent’s potential rental income from property abroad.

The interim parenting arrangement was set to operate for three months to assess its effectiveness.

The applicant husband brought a motion seeking interim spousal support following a long-term marriage.

The parties had been married since 1976 and separated in 2009.

The husband alleged dramatically reduced business income due to declining work and heart-related medical limitations, while the respondent argued he had greater earning capacity and was understating income.

The court noted that interim support determinations aim to achieve "rough justice" and cannot resolve factual disputes that must be determined at trial.

Considering the parties’ financial circumstances and the applicant’s health limitations, the court ordered interim spousal support of $850 per month, with costs reserved to the trial judge.

The mother brought a motion to strike the father's Motion to Change due to his chronic failure to pay child support, spousal support, and multiple costs orders.

The father owed over $140,000 in arrears and costs, despite having the ability to pay.

The court found the father's non-compliance to be deliberate, willful, and blatant.

Applying Rule 1(8) of the Family Law Rules, the court struck the father's Motion to Change, ordered him to pay all arrears and costs before bringing any future motions, and required him to post $25,000 in security for costs for any future proceedings.

The accused was charged with sexual assault and sexual interference against a three‑year‑old child occurring during overnight visits at a residence where the accused lived.

The child provided spontaneous disclosures to her mother and later gave a video‑recorded statement admitted under s. 715.1(1) of the Criminal Code.

The trial judge assessed credibility under the principles in R. v. W.(D.) and related jurisprudence, finding the child’s evidence cogent, detailed, and consistent despite minor inconsistencies on collateral matters.

Similar act evidence from another conviction involving comparable conduct toward a young child was admitted to demonstrate situational propensity and reduce the likelihood of coincidence.

The court rejected the accused’s denial and found the Crown had proven the offences beyond a reasonable doubt.

The accused appealed a summary conviction for sexual assault arising from an incident during physiotherapy treatment where the complainant alleged the accused grabbed her breast without consent.

The appellant argued the trial judge erred in assessing credibility by relying on irrelevant considerations, including the complainant’s religious beliefs and courtroom demeanour, and by applying an unduly critical approach to the accused’s evidence.

The court held that the trial judge was entitled to consider the complainant’s expressed religious commitment and limited observations about demeanour as minor factors among many when assessing credibility.

The court further held that the trial judge’s rejection of the accused’s account and her reliance on common sense in evaluating his conduct disclosed no legal error.

The conviction was therefore upheld.

An employee with approximately twelve years of service brought a wrongful dismissal action after being terminated during an alleged downturn in available work.

The employer argued that there was insufficient work and that the employee would have earned little or no income during any reasonable notice period.

The court held that the employee remained entitled to a common law wrongful dismissal remedy notwithstanding potential exemptions under the Employment Standards Act.

Applying the Bardal factors and accounting for economic conditions affecting the employer’s business, the court determined that a reasonable notice period was eight months rather than the twelve months that might otherwise apply.

The employee’s mitigation efforts, including temporary subcontract work and starting a business, were found reasonable, and damages were calculated based on eight months’ pay less mitigation income and termination pay already received.

The accused brought a pre‑trial application under s. 276 of the Criminal Code seeking leave to cross‑examine the complainant about prior sexual activity with him and with other individuals.

The proposed questioning arose in the context of numerous text messages between the parties that appeared to reference sexual relations during the period when they lived together.

The court held that cross‑examination regarding alleged prior consensual sexual activity between the complainant and the accused was relevant to credibility and necessary to provide context for the text message evidence.

However, proposed questioning about the complainant’s sexual activity with other individuals was excluded as irrelevant and as improperly engaging the prohibited “twin myths.” Leave was therefore granted only in relation to prior sexual activity between the complainant and the accused.

The plaintiffs brought a motion for substitute service of a statement of claim and an extension of time for service under Rules 16.04 and 3.02 of the Rules of Civil Procedure.

The action arose from a fatal pedestrian motor vehicle accident, but the defendants had not been served within the required six‑month period after issuance of the claim.

The court found the plaintiffs had made minimal efforts to locate and serve the defendants and had not demonstrated due diligence.

Applying the principles in Chiarelli v. Weins and considering prejudice arising from the delay, the court held that both presumed and actual prejudice existed, including the loss of key witnesses and impaired ability to pursue claims against other potentially liable parties.

The plaintiffs failed to rebut the presumption of prejudice.

The motion for substitute service and extension of time was therefore dismissed.