SCJ 2014

The accused applied at a retrial to prevent the Crown from adducing evidence that he placed his hands on the complainant’s neck and made threatening statements during the alleged sexual assault.

He argued that issue estoppel barred the Crown from re‑litigating these facts because he had been acquitted of separate charges of choking and uttering threats at the first jury trial.

The court held that issue estoppel only applies where the prior acquittal necessarily resolved the factual issue in the accused’s favour.

Because the earlier jury verdicts could have been based on multiple possible routes to acquittal, it was impossible to determine the precise factual basis for the acquittals.

The doctrine therefore did not prevent the Crown from leading the evidence as part of the complainant’s narrative at the retrial.

The estate trustees sought the opinion, advice, or direction of the court regarding the application of the rule in Saunders v. Vautier to a testamentary trust created for a beneficiary under a limited property will.

The court addressed whether the trust known as the “Susan Fund” could be terminated with immediate distribution depending on whether the beneficiary exercised a power of appointment by deed or will.

The court held that the rule in Saunders v. Vautier would not apply where no appointment was made, but would apply if the beneficiary appointed another beneficiary or her estate by deed.

The reasons clarified the implications of an earlier decision concerning a related trust and confirmed when the beneficiary could compel termination of the trust.

The Crown sought to admit a videotaped police statement made by the accused following a high-risk arrest for murder and attempted murder.

The defence argued the statement was involuntary due to oppressive circumstances, including the manner of arrest, relentless questioning, and the accused's physical illness.

The court applied the common law confessions rule and found the statement voluntary for the first three hours and twenty-three minutes, as the accused was able to make a meaningful choice to speak or remain silent.

However, the court found a reasonable doubt as to voluntariness for the remainder of the interview, as the accused became visibly ill and unable to continue.

The statement was ruled partially admissible.

A self-represented applicant sought judicial review of a justice of the peace’s refusal to issue process on a privately laid information alleging forcible entry under the Criminal Code.

At the pre‑inquiry hearing, the Crown conceded that there was evidence establishing a prima facie case for each element of the offence.

The justice of the peace nevertheless refused to issue process on the basis that the prosecution was not an appropriate case to proceed.

The Superior Court held that once prima facie evidence exists, s. 507.1(2) of the Criminal Code requires issuance of process unless the complaint is frivolous, vexatious, or an abuse of process.

As no such finding was made, the justice of the peace exceeded jurisdiction and the matter was remitted to the Ontario Court of Justice for process to issue.

The applicant sought an extension of time to appeal criminal convictions entered following guilty pleas, arguing he was unaware that the convictions would trigger deportation proceedings under immigration law.

Applying the factors governing extensions of time for criminal appeals, the court considered whether the applicant had a bona fide intention to appeal, whether the delay was adequately explained, and whether the proposed appeal had merit.

The court found that the applicant only became aware of the immigration consequences months after the conviction and reasonably formed an intention to appeal once informed of the risk of deportation.

Although the applicant initially benefited from the plea and some factors weighed against relief, the court concluded that the potential deportation consequences and possible issues with the voluntariness and unequivocal nature of the plea raised an arguable appeal.

The extension of time to file a notice of appeal was granted.

Following a successful application declaring that an insurer owed a duty to defend, the applicant sought costs of $23,228.50 on a substantial indemnity basis.

The respondent did not dispute the applicant’s responsibility to fund its own defence but challenged the number of hours claimed.

The court considered the principles governing costs under Rule 57 and the Court of Appeal guidance emphasizing fairness and reasonableness rather than full indemnification.

The court found some duplication of effort and reduced the claimed amount.

Costs were fixed at $20,000 inclusive of HST plus disbursements.

The Crown sought estreatment of a $5,000 recognizance bond following the accused’s breaches of bail conditions and subsequent convictions for fraud-related offences and failing to comply with recognizance.

The defence argued that the Certificate of Default (Form 33) was invalid because it was not signed by the judicial officer and inadequately described the default as “fail to comply.” The court held that the absence of a signature and the wording on the form did not invalidate the certificate where the court record and transcript clearly established a judicial finding of default and defence counsel had consented to the process.

Applying s. 771(2) of the Criminal Code, the court concluded the accused had not met the burden of demonstrating why the full pledged amount should not be forfeited.

The court ordered the full $5,000 bond estreated to the Crown.

Following a 15‑day custody and access trial, the successful party sought $493,000 in costs on a partial indemnity basis to the date of a settlement offer and full indemnity thereafter.

The court analyzed success at trial, the parties’ settlement offers, litigation conduct, and reasonableness of the claimed fees under the Family Law Rules.

The court found the moving party clearly more successful and that his settlement offers were more closely aligned with the trial outcome than the opposing party’s offers.

However, the court reduced the recovery due to unreasonable conduct, including surreptitious recording of the opposing party during disputes involving the children.

Costs were fixed at $345,000 on a partial recovery basis and ordered payable within 90 days.

Following the dismissal of a motion to amend a statement of claim to add an oppression claim under s.248 of the Business Corporations Act, the successful defendant sought costs of the motion.

The defendant requested partial indemnity costs based on 50.4 hours of counsel time.

The court found the claimed hours excessive for a routine motion that took less than half a day and concluded that 20 hours would have been reasonable at the claimed hourly rate under Rule 57.01 of the Rules of Civil Procedure.

However, considering the broader circumstances of the dispute, including that the defendant retained $500,000 advanced by the plaintiff while denying liability, the court exercised its discretion to decline awarding costs.

No costs were ordered.

Following a family law motion to change, the successful responding party sought costs on a full recovery basis.

The court applied Rule 24 of the Family Court Rules and the discretionary costs power under the Courts of Justice Act.

While the successful party was presumptively entitled to costs, the court adjusted the claim to exclude fees associated with a case conference where costs had not been reserved and to remove duplication arising from a change of counsel.

Considering the reasonableness of the parties’ conduct, offers to settle, and proportionality, the court fixed partial indemnity costs.

Costs were awarded in a reduced amount reflecting fairness and the circumstances of the litigation.

Following a trial and related injunction proceedings, the successful party sought recovery of its legal costs.

The court reviewed the cost submissions of both parties and determined that the successful party was entitled to costs on a partial indemnity basis.

The court found no reason to depart from the amounts claimed for trial preparation, attendance, and injunction-related work.

Costs were fixed in a specified amount payable by the opposing party.

The applicant condominium corporation sought an order appointing an arbitrator pursuant to a Complex Reciprocal Agreement.

The respondents agreed on the choice of arbitrator but argued the matters at issue were outside the arbitrator's jurisdiction and that overlapping court proceedings precluded arbitration.

The court applied the competence-competence principle, holding that challenges to an arbitrator's jurisdiction should generally be resolved by the arbitrator first, unless based solely on a question of law or requiring only superficial consideration of documentary evidence.

Finding that at least one issue (allocation of common costs) arguably fell within the arbitrator's jurisdiction, the court granted the application and appointed the arbitrator.

Insured homeowners sought summary judgment claiming entitlement to guaranteed replacement cost coverage under a homeowners insurance policy after their residence was destroyed by fire.

Instead of rebuilding on the original site, the insureds purchased a different home in another location and asserted that this constituted a “replacement” within the meaning of the policy’s endorsement.

The insurer maintained that the endorsement only modified the monetary limit of coverage and did not displace the policy’s requirement that replacement occur on the same site to qualify for replacement cost benefits.

The court held that the endorsement must be interpreted in conjunction with the underlying policy and that replacement cost coverage remained contingent on reconstruction at the same location.

Because the insureds relocated rather than rebuilding, their loss was limited to actual cash value coverage.

The defendants brought a motion for summary judgment seeking dismissal of a defamation action arising from allegations that the plaintiff poisoned their mother.

The statement of claim alleged the defendants reported the allegation to police, but the evidence showed that one defendant communicated the allegation to the other, who contacted the coroner, and the coroner then contacted police.

The court held the pleadings failed to allege the actual publication or any republication chain reflected in the evidence.

The court also found that contacting the coroner about a potential criminal act was subject to qualified privilege.

As the plaintiff could not prove the case as pleaded and amendment would not render the claim viable, summary judgment was granted dismissing the action.

A commercial landlord sought relief against a tenant regarding the installation of an ATM machine in leased premises used as a fast food restaurant.

The landlord argued the ATM constituted an impermissible use under the lease because it effectively provided banking services and allowed access by non-customers.

The tenant argued the ATM facilitated cash transactions for customers and reduced payment processing costs.

The court held that the ATM did not alter the permitted use of the premises as a fast food restaurant and did not constitute the offering of banking services.

The application was dismissed.

The appellant, a police officer, appealed his conviction and sentence arising from an incident where he retained half of a quantity of marijuana that had been turned over to him while on duty during an internal police investigation.

He argued that the police investigation constituted entrapment and amounted to impermissible random virtue testing under the principles set out in R v Barnes.

The court held that the police had reasonable suspicion based on prior information suggesting chronic marijuana use by the appellant and that the reverse sting operation was a legitimate investigative step.

The court concluded there was no entrapment or abuse of process and upheld both the conviction and sentence, emphasizing the breach of trust inherent in the conduct of a serving police officer.

The plaintiff sustained bilateral wrist fractures after a slip and fall and was treated at the defendant hospital.

The defendant doctors reduced the fractures and applied plaster splints.

The plaintiff subsequently developed a full thickness burn on her right arm, which she alleged was caused by the negligent application of the cast or a failure to properly diagnose and treat the injury.

The court found that the defendant doctors met the standard of care in their treatment and that the burn was an unfortunate, rare, and unforeseeable complication of the exothermic reaction from the plaster.

The action for medical malpractice was dismissed, and costs were awarded to the defendants.

The accused was charged with multiple counts arising from three break and enters at Subway restaurant locations over several days.

Surveillance footage, physical evidence, and DNA recovered from a balaclava linked the accused to the offences, while the accused testified denying involvement and suggesting innocent explanations for the evidence.

The court applied the credibility framework from R. v. W.(D.) and rejected the accused’s account.

After finding the accused responsible for one break and enter, the court admitted similar fact evidence due to striking similarities in timing, method, clothing, and tools used across the incidents.

The similarities and physical evidence established beyond a reasonable doubt that the same perpetrator committed all three break and enters.

Montel brought a motion to strike the defendants' counterclaims and for judgment on unpaid invoices in Action No. 1.

The defendants sought to stay Action No. 1 and consolidate it with Action No. 2, which involved claims for breach of a distribution agreement.

Montel also moved to dismiss Action No. 2 based on a forum selection clause.

The court struck the counterclaims in Action No. 1 as duplicitous of claims in Action No. 2 and granted judgment to Montel for the unpaid invoices, refusing a stay.

The court dismissed Montel's jurisdictional motion, finding the validity of the agreement containing the forum clause was a triable issue.

Finally, the court allowed Kipawa to be added as a plaintiff in Action No. 2 but denied consolidation, ordering consecutive trials instead.

Following an eight-day family trial concerning custody and parenting time, the successful applicant sought substantial costs after obtaining joint custody and equal shared parenting.

The court considered Rule 24 of the Family Law Rules and the impact of offers to settle under Rule 18(14).

Although the applicant’s offer to settle was more favourable than the trial result and would ordinarily justify full recovery costs after the offer date, the court considered the financial circumstances of both parties and the impact on the children.

Balancing the purposes of costs awards—partial indemnity, encouraging settlement, and discouraging unreasonable litigation—the court reduced the amount sought.

A costs award of $48,000 inclusive of HST and disbursements was ordered.