SCJ 2015

The respondent municipality was successful in defending an application and sought costs of $7,689.00 on a partial indemnity basis.

The applicants argued costs should be denied because the respondent introduced facts in its factum regarding the existence of private parks that were not included in the Agreed Statement of Facts.

The court rejected this argument, noting the applicants had addressed the issue and could have easily verified the public record prior to the hearing.

The court awarded the respondent its claimed costs of $7,689.00.

The applicant brought a motion for interim child and spousal support, as well as repayment of funds from a joint cheque and damages for increased financing costs.

The court imputed incomes for both parties, ordering the respondent to pay $846.73 in monthly child support and $400 in monthly spousal support.

The court also ordered the respondent to repay $10,875.36 via a pension transfer, but dismissed the applicant's claim for increased financing costs, finding the respondent's delay in transferring title was justified by his consumer proposal.

In a judge-alone criminal trial involving historical allegations of sexual interference and sexual assault against a child, the Crown sought admission of the accused's prior conviction for sexual offences against another young child as similar fact evidence.

The court applied the governing similar fact evidence framework and found substantial similarities in age, vulnerability, setting, relationship of trust, and pattern of conduct.

Although there was some concern about possible contamination of the complainant's account through exposure to the other case, that concern did not outweigh the probative value of the evidence, particularly given that the prior conduct arose from admitted facts supporting a guilty plea and could also bear on the defence theory.

The prior discreditable conduct evidence was admitted.

In a family costs endorsement following an uncontested trial, the applicant sought recovery for both the issuance of the application and later trial-related attendances.

The court applied Rule 24 of the Family Law Rules and emphasized proportionality, fairness, litigant conduct, and the modern purposes of costs awards.

The claim for costs of bringing the application was dismissed because the respondent's probation terms restricting communication affected the usual expectation of out-of-court engagement.

However, the court awarded partial indemnity costs for the fresh affidavit of uncontested trial and the later attendances after finding the respondent unreasonably failed to comply with an earlier order and caused unnecessary expense.

In this estate costs endorsement following dismissal of a motion to nullify a settlement and remove the estate trustee during litigation, the court fixed and apportioned costs among family participants and the trustee.

The court held that unfounded allegations of fraud, dishonesty, incompetence, and improper conduct justified elevated costs against the moving party, and partly against a supporting beneficiary, payable from their respective shares of the estate rather than from estate assets generally.

The trustee received full indemnity costs and another responding party received substantial indemnity costs after the court found the motion lacked evidentiary foundation and unnecessarily prolonged the administration of the estate.

Separate partial indemnity adjournment costs were awarded in favour of the supporting beneficiary and the self-represented moving party against the trustee and another responding party personally for unreasonably refusing a consent adjournment.

In a personal injury action, the defendants sought further examination for discovery of the plaintiff and the plaintiffs sought immediate particulars of surveillance evidence.

The court held that the moving parties were entitled to continue the plaintiff's discovery, particularly to explore the effect of a subsequent motor vehicle accident and responsive productions.

Applying the recent appellate guidance on surveillance disclosure, the court required a sworn supplementary affidavit of documents disclosing the existence of the surveillance before the continued discovery, but held that the particulars of the surveillance need only be delivered forthwith after the plaintiff's discovery was completed.

Costs were fixed in favour of the moving parties.

The plaintiffs moved under Rule 26.01 to amend their statement of claim arising from alleged negligent construction damage to a semi-detached home by adding allegations that the negligence caused the spouses' separation and one plaintiff's suicide, together with a derivative claim under s. 61 of the Family Law Act.

The court held that on a pleadings amendment motion the inquiry is whether the proposed amendment is tenable in law, applying the same plain and obvious standard used on a motion to strike.

The proposed pleading failed to allege a recognized psychiatric injury of sufficient seriousness and duration, instead relying on pleaded upset, distress, and stress, which are not compensable mental illness.

The court further held that suicide was not reasonably foreseeable on the pleaded facts, particularly absent any pleaded vulnerability or direct relational duty akin to doctor-patient or teacher-student cases.

Leave to amend was refused.

The defendants brought a motion for non-suit to dismiss the plaintiff's malicious prosecution claim and to withdraw the defence of qualified privilege from the jury regarding the plaintiff's defamation counterclaim.

The court granted the non-suit, finding no evidence that the defendants initiated the criminal proceedings, as the police exercised independent discretion.

The court also withdrew the defence of qualified privilege, ruling that statements made by the plaintiffs to a priest were not made on an occasion of qualified privilege.

Criminal trial arising from the negotiation of two forged Bank of Montreal bank drafts at Ontario casinos.

The Crown relied primarily on circumstantial evidence, including the timing of the theft and forging of the drafts, the accused's immediate communications with casino staff, and the implausibility of the accused's explanation that the drafts were partial repayment of gambling loans from an acquaintance known only by a first name.

The court applied the doctrine of recent possession and found the accused's police statement to be a deliberate fabrication capable of supporting an inference of consciousness of guilt.

The Crown proved the mental elements of fraud and uttering forged documents beyond a reasonable doubt, and convictions were entered on all four counts.

The appellant appealed a Master's order requiring her to post $40,000 in security for costs in her solicitor's negligence action.

The respondents brought a preliminary motion to strike a ground of appeal as an impermissible collateral attack on a prior unappealed order, which the court granted.

On the main appeal, the court found no palpable and overriding error in the Master's findings that the appellant was ordinarily resident outside Ontario and had failed to establish impecuniosity with robust particularity.

The court held the Master correctly applied the law in assessing the merits of the action and balancing the parties' interests.

The appeal was dismissed with costs awarded to the respondents.

This was a costs endorsement following the defendants' complete success on a motion to dismiss and on opposition to an anti-suit injunction concerning foreign proceedings in St. Kitts.

The plaintiffs were self-represented, but the court held that self-representation was not a basis to deny costs to the successful parties.

Applying the general principles and the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court found the claimed partial indemnity costs reasonable.

Costs were awarded forthwith to the defendants in the amount of $10,298.20.

The applicant sought enforcement of an unpaid net family property equalization payment by obtaining control over the sale of the respondent's home.

The respondent sought an adjournment and relied in part on a pending WSIB claim, while the record also disclosed ongoing child support arrears owed by the applicant.

The court denied the adjournment, confirmed the applicant's entitlement to recover the equalization payment, and ordered an expedited sale process with specified appraisal, listing, access, vacancy, carrying-cost, and trust terms.

The judge remained seized to supervise implementation and any further issues arising from the sale.

On a family law motion, the court found that the respondent deliberately accessed the applicant's personal email account and obtained communications protected by solicitor-client privilege, including an email from counsel and legal accounts describing services rendered.

Applying settled privilege principles, the court held the communications were confidential legal advice and remained privileged despite containing some factual content.

Because the breach was deliberate and the respondent was found untruthful, the court imposed significant procedural sanctions, required an affidavit disclosing all intercepted communications and their dissemination, ordered an undertaking against future interception or recording, prohibited retention of former counsel in related proceedings, and awarded full indemnity costs.

The court also removed privileged complaint materials from the court record and struck portions of the respondent's affidavit referring to case conference discussions.

This was a costs ruling following a discovery motion in which the defendants were successful.

The plaintiff conceded the defendants' entitlement to costs and did not object to the amount claimed.

The court awarded the defendants their requested costs of $9,212.36, consisting of fees and disbursements found to be fair and reasonable.

This was a costs decision following a successful bifurcation motion by the defendants in a large misfeasance in public office action.

The plaintiff conceded entitlement, hourly rates, and disbursements, but argued that time spent preparing an affidavit was excessive for a procedural motion.

The court declined to second-guess successful counsel's preparation time, finding the affidavit materially helpful and the hours not grossly excessive.

Applying proportionality and reasonableness principles, the court allowed the defendants' bill of costs in full.

The applicant tenant sought a declaration that it retained a right to renew a commercial lease and had properly exercised that option.

The court held that the renewal option had already been spent, the tenant had not provided notice in strict compliance with the lease, and the tenant had been in default for most of the term.

The court further refused relief against forfeiture because the defaults resulted from the tenant's own deliberate acts rather than circumstances beyond its control.

The application was dismissed with agreed costs to the successful landlord.

Following a motor vehicle collision, the defendants admitted liability and the jury awarded general damages and future health care expenses.

While the jury was deliberating, the defendants brought a threshold motion under the Insurance Act seeking a declaration that the plaintiff's injuries did not meet the statutory exception for permanent serious impairment of an important physical, mental or psychological function.

The court accepted that the plaintiff had chronic pain and that his condition was permanent, but held the evidence did not establish a serious impairment causing substantial interference with regular training or most usual activities of daily living.

The plaintiff's ability to complete ESL training and continue household activities undermined the claim that the threshold was met.

The motion was granted and the action dismissed.

The applicants sought urgent scheduling of an interlocutory injunction motion in a constitutional challenge to amendments under the Fair Elections Act affecting federal voting procedures, including voter information cards and vouching.

The court held that requests for expedition must balance procedural fairness, potential irreparable harm, and the practicality of a timetable for the parties and the court.

Given the complexity of the Charter issues and the extensive social science and expert evidence, the court declined the very early hearing date sought by the applicants but ordered an expedited case-managed schedule culminating in a two-day motion hearing in July 2015.

On a family law motion, the responding party to the original application sought a contempt finding and an order permitting international travel with the parties' 34-month-old child to Zimbabwe for approximately three and a half weeks.

The court held that the evidentiary record did not satisfy the high threshold for contempt.

Applying the child's best interests, the court found the other parent was not unreasonably withholding consent to travel, given the child's age, the length and difficulty of the trip, and government safety cautions concerning the destination.

The request for travel authorization was dismissed, and the remaining access issues were left to be brought back on notice.

On an interim passing of accounts in a contentious estate administration, the court addressed disputes between co-estate trustees concerning estate assets, reimbursements, distributions, and the administration of a special-needs trust for a beneficiary.

Applying the resulting trust framework from Pecore, the court held that funds in a joint RBC account with an adult child formed part of the estate because the surviving joint holder failed to prove a gift of survivorship.

The court approved certain estate disbursements and reimbursements for house expenses, funeral-related expenses, and electrical work, but disallowed others, including unnecessary telephone and cable charges and a reimbursement claim for probate fees already paid from estate funds.

Because income tax liability, the beneficiary trust, and the state of the accounts remained unresolved, the court ordered further steps and a final passing of accounts.