SCJ 2014

Following a motion regarding child and spousal support, the applicant mother sought costs on a partial indemnity basis.

The court found the mother was substantially successful on the motion, particularly regarding spousal support, section 7 expenses, and insurance designations.

The court applied the maximum hourly rates set out in OGT Holdings and reduced the claimed fees and disbursements to reflect a fair and reasonable amount that the unsuccessful party would expect to pay.

The respondent father was ordered to pay costs of $14,250 inclusive of disbursements and HST.

In a medical negligence action, the self-represented plaintiff brought a broad motion seeking numerous forms of relief including adding additional defendants, converting the action into a class proceeding, increasing damages, obtaining injunctive relief against the defendant physician and his counsel, and compelling production of various medical records.

The court denied the plaintiff’s adjournment request and deemed the motion abandoned when the plaintiff failed to appear.

The judge held that, even if the motion had proceeded, most requested relief lacked evidentiary support or was legally unavailable, including claims against opposing counsel and a proposed wrongful death claim barred by limitation under the Trustee Act.

On the defendant’s motion, the court struck several paragraphs of the statement of claim as irrelevant or containing improper pleadings under Rule 25.06(1) of the Rules of Civil Procedure and issued directions regarding document disclosure, service, and litigation timelines.

Investors who lost $17 million in a fraudulent certificate of deposit scheme brought a motion for leave to amend their statement of claim against a bank that had acted as a correspondent bank for the fraudster.

Earlier pleadings alleging a general duty on banks to monitor customers for fraud had been struck for failing to disclose a reasonable cause of action.

The proposed amendments added detailed allegations based on documents obtained by liquidators showing internal concerns within the bank about suspicious activities and regulatory issues surrounding the customer.

The court held that the amended pleading alleged a more specific duty arising from particular knowledge and circumstances rather than a broad duty to investigate customers generally.

Because the new allegations relied on information not reasonably available earlier and could potentially support a tenable claim, leave to amend was granted.

Following separation, the applicant sought joint custody of two children with primary residence, child support, and spousal support.

The court considered the best interests of the children under s. 16 of the Divorce Act and noted that both parents were loving and capable, and that the children were thriving under the existing parenting arrangement.

Despite communication difficulties between the parties, the evidence showed that they had been able to cooperate through written communication and make joint decisions affecting the children.

The court ordered joint custody with the children’s primary residence with the applicant and maintained the existing parenting schedule tied to the respondent’s work shifts.

Guideline child support was ordered along with fixed-term spousal support and provisions regarding section 7 expenses and life insurance security.

The appellant appealed convictions for two counts of assault and one count of unlawful confinement arising from incidents involving his spouse.

He argued that the trial judge failed to analyze each count separately and misapplied the W.(D.) credibility framework.

The appeal court held that the trial judge properly articulated the governing legal principles, including the burden of proof and the W.(D.) analysis, and that the reasons, when read as a whole, adequately explained the credibility findings and verdicts.

The court also found no error in the trial judge’s comments regarding the defence’s failure to cross‑examine the complainant on certain allegations.

The convictions were supported by the evidence and no miscarriage of justice occurred.

The plaintiff commenced an action in 1989 alleging the defendants dumped coal tar waste that migrated onto its property.

After 25 years of litigation, the defendants moved to dismiss the action for delay under Rule 24 of the Rules of Civil Procedure.

The court found that while the initial 14 years of delay were excusable due to collaborative settlement efforts, the plaintiff's failure to advance the litigation after 2003 was inordinate and inexcusable.

The court held that the plaintiff failed to rebut the strong presumption of prejudice, as it had not preserved the evidence of key witnesses who had since passed away.

The motion was granted and the action was dismissed.

The applicant sought to exclude eyewitness identification evidence arising from a photo line‑up.

Evidence revealed that police had shown the witness several mug shots of suspects prior to conducting the formal photo line‑up and failed to keep notes or records of that interaction.

The court held that the undocumented pre‑line‑up exposure created a serious risk that the witness’s identification had been tainted and could not be meaningfully tested through cross‑examination.

Given the uncertainty surrounding the circumstances of the earlier photographs and the witness’s statements during the line‑up indicating influence from them, the probative value of the identification evidence was outweighed by its prejudicial effect.

The identification evidence was therefore excluded.

The accused challenged the admissibility of evidence consisting of a name and phone number stored in a third party’s cell phone, arguing that it constituted hearsay.

The Crown sought to admit the evidence as circumstantial evidence of the state of mind of the person who recorded the contact information and its connection to events relevant to the prosecution.

The court held that the entry of a name and phone number in a cell phone constituted non-verbal conduct rather than hearsay and could be admitted for the limited purpose advanced by the Crown.

Alternatively, the evidence satisfied the principled exception to the hearsay rule due to circumstantial guarantees of trustworthiness and necessity where the phone’s owner had absconded.

The issue of the ultimate reliability and weight of the evidence was left to the jury.

During a criminal jury trial, the defence challenged testimony suggesting that the accused was known by a nickname, arguing the evidence was inadmissible hearsay.

The Crown contended the statement was admissible as an adoptive admission by silence because it was allegedly made in the accused’s presence.

The court reviewed the governing principles for adoptive admissions, including the requirement that the accused must have heard the statement and reasonably been expected to respond.

Because the evidentiary record did not establish that the accused was present or heard the statement, the foundational requirements were not met.

The jury was therefore prohibited from using the testimony as substantive evidence.

The moving party sought to terminate ongoing spousal support payable under a prior order following a long-term marriage.

Material changes included the termination of child support, increased income of the payor, reduced employment income of the recipient, and the recipient’s long‑term cohabitation with a new partner contributing significant household income.

Applying the Family Law Act and jurisprudence on compensatory and non‑compensatory support, the court found the recipient had been adequately compensated through equalization and ten years of support, and had achieved a reasonable standard of living in her new relationship.

The court concluded the economic consequences of the marriage had been equitably addressed.

Spousal support was ordered to terminate prospectively to allow the recipient time to adjust financially.

The defendant, a federal standing Crown agent, moved to strike the plaintiffs' statement of claim under Rule 21.01(1)(b) on the basis of prosecutorial immunity and failure to plead sufficient facts for malicious prosecution.

The plaintiffs alleged misfeasance in public office, abuse of process, conspiracy, and malicious prosecution arising from the defendant's involvement in an environmental investigation and subsequent prosecution.

The court dismissed the motion, finding it was not plain and obvious that the claims were barred by prosecutorial immunity, as the jurisprudence on whether other torts can be brought against prosecutors remains unsettled.

The court also found the plaintiffs pleaded sufficient material facts to support the elements of malicious prosecution.

The Children's Aid Society brought a motion for summary judgment seeking an order that the one-year-old child be made a Crown ward without access for the purpose of adoption.

The mother opposed the motion, arguing she had made progress in addressing protection concerns.

The court found that the mother had failed to adequately address long-standing issues with substance abuse and mental health, and that there was no realistic possibility of the child being returned to her care.

The court granted summary judgment, finding no genuine issue for trial, and ordered Crown wardship without access.

The defendant moved to set aside a default judgment obtained by the plaintiff for repayment of a loan secured by a Sharia-compliant second mortgage.

The defendant argued that his monthly payments were repayments of principal, not interest, which his faith forbids.

The court found that the defendant satisfactorily explained his failure to deliver a defence, moved promptly to set aside the judgment, and raised a potentially meritorious defence due to ambiguities in the financing agreements.

The motion to set aside the default judgment was granted.

Following earlier motion decisions involving crossclaims between defendants in an action arising from an oil spill at a residence, the successful defendant sought substantial indemnity costs exceeding $25,000.

The responding defendant argued for a significantly lower award.

The court rejected the request for substantial indemnity costs, finding no misconduct warranting a punitive award and emphasizing the governing principle of reasonable expectations of the unsuccessful party.

Although the moving party obtained partial summary judgment and a declaration regarding future defence costs, the success was only partial.

The court fixed costs at $12,000 inclusive.

The plaintiff sued a contractor for damages arising from water leakage into a basement foundation constructed under her trailer.

The court found that the contractor used a slab‑on‑grade method due to a high water table but failed to follow certain standard industry practices, including properly extending the waterproofing membrane and ensuring drainage measures consistent with the Building Code.

Expert evidence established that remedial work was necessary to prevent further water infiltration and bring the structure into compliance.

Claims for rental income, personal property damage, interior demolition, and general damages were largely rejected due to insufficient proof.

The court awarded damages for foundation remediation, anchoring of the trailer, interior repainting, and a contingency allowance.

Following a family law motion involving requests to set aside a separation agreement, pursue equalization, and address child and spousal support, the parties reached temporary minutes of settlement increasing child support and adjourning other issues.

The respondent sought costs of $7,500 on a partial indemnity basis for preparation addressing limitation issues and the attempt to set aside the separation agreement.

The court found that significant preparation by the respondent related to issues that could not properly be determined on a short motion and that were effectively abandoned for the motion hearing.

Considering the limited success of the applicant and the access to justice concerns surrounding unresolved support and equalization issues, the court awarded partial costs to the respondent.

Costs were made payable upon determination or settlement of the outstanding issues unless the applicant abandoned her claims earlier.

Following a successful motion by certain defendants, the court determined the appropriate costs award.

The court exercised its discretion under s. 131 of the Courts of Justice Act and considered the principles governing reasonable costs, including the factors in Rule 57.01 of the Rules of Civil Procedure and the guidance from appellate jurisprudence.

Although the successful defendants sought recovery based on extensive hours claimed for research and preparation, the court found portions of the time claimed excessive.

Considering the moderate complexity of the issues, the conduct of the parties, and prior settlement offers, the court fixed a reduced but reasonable partial indemnity costs award.

The accused was charged with multiple firearms and drug offences after police executed a telewarrant at his apartment and seized an unregistered rifle, an over-capacity magazine, ammunition, and marijuana.

The accused brought a Charter application alleging the warrant was invalid due to insufficient grounds and improper editing of the information to obtain (ITO) relating to a confidential informant.

The court reviewed the warrant under the Garofoli framework, addressed disclosure issues arising from informer privilege, and considered the sufficiency of the judicial summary and investigative corroboration.

Although the informant lacked a proven track record and had self-interested motivations, the tip was detailed, recent, and based on articulated means of knowledge, and was partially corroborated by police investigation.

Applying the totality of the circumstances test from DeBot and related authorities, the court held the issuing justice could reasonably have found reasonable and probable grounds for the search.

In advance of a scheduled sanction hearing for contempt findings, the trustee in bankruptcy and two contemnors moved for broad production of documents arising from related litigation in California involving the respondent corporation.

The moving parties sought depositions, financial statements, and additional litigation materials, arguing the information was relevant to their ability to answer or mitigate prior contempt findings and the sanctions to be imposed.

The court applied the relevance standard previously articulated for the sanction hearing and declined to grant a sweeping production order that would effectively retry the foreign proceedings.

Limited production was ordered, including five deposition transcripts of a key corporate officer and financial statements of the respondent corporation.

Requests for additional documents concerning alleged “straw sale” transactions were refused.

A costs endorsement following applications to vary a criminal restraint order under s. 462.34 of the Criminal Code to permit enforcement of a condominium lien and a mortgage power of sale.

The opposing party argued the applicants’ legal fees were excessive and should be limited by the court.

The court held that a variation application under s. 462.34 was not an appropriate forum to adjudicate disputes over legal fees and that such disputes should instead be addressed through civil proceedings or assessment mechanisms under applicable legislation.

In any event, the court found no basis to limit the applicants’ legal fees given the procedural history and the conduct of the parties.

No order regarding costs was made.