SCJ 2015

Following the dismissal of the plaintiff's motion for an interlocutory injunction, the defendants sought costs of over $100,000 payable forthwith.

The court noted the general rule that an unsuccessful party on an injunction motion typically pays costs forthwith, but found this to be an exceptional case.

The court found the defendant accountant's evidence regarding his involvement in the allegedly fraudulent transaction to be highly questionable and contrary to normal business practices.

Consequently, the court fixed costs at $85,000 on a partial indemnity basis but ordered them to be in the cause, leaving the ultimate burden of costs to be determined at trial.

On a bail application under s. 522 of the Criminal Code by an accused charged with second degree murder, the court held that detention was not justified on the secondary or tertiary grounds under s. 515(10).

The court gave significant weight to the accused's Indigenous background and the systemic and personal circumstances recognized by Gladue, while also finding that an unusually stringent release plan with multiple sureties, house arrest, abstinence conditions, and culturally appropriate supports adequately protected public safety.

The court further rejected the Crown's position that s. 515(2)(e) required a cash deposit because the accused was ordinarily resident in Ontario and within 200 kilometres of the place of custody.

Judicial interim release was granted on strict terms.

This was a costs-only endorsement following an earlier ruling.

The successful party sought $1,148.02 all-inclusive after responding to an application commenced in contravention of a prior vexatious litigant order under s. 140 of the Courts of Justice Act.

Applying the presumption in rule 24(1) of the Family Law Rules, the principle of indemnity in rule 57.01(0.a) of the Rules of Civil Procedure, and the requirement that costs be fair and reasonable, the court held the amount claimed was fair and reasonable.

Costs were awarded in full.

The appellant appealed a conviction for impaired operation following acquittal on a breath-demand refusal charge and conviction on mischief and impaired driving charges at trial.

The sole issue was whether the observational evidence, much of which was said to be equally consistent with non-impairment, was insufficient to prove impairment beyond a reasonable doubt.

The court held the trial judge properly assessed the totality of the evidence, including both signs of impairment and evidence of normal functioning, and reasonably found that impairment was apparent.

The appeal was dismissed.

On a summary conviction appeal from convictions for mischief under $5000 and breach of recognizance arising from a road-rage altercation, the appellant argued that the trial judge misapprehended the complainant's evidence concerning whether she had reviewed a prior written police statement.

The court held that the trial judge did not misapprehend the evidence, properly distinguished between the written statement and a later video statement, and remained alive to contradictions in the complainant's various accounts.

In any event, applying the governing test for misapprehension of evidence, any possible error was not central to the reasoning process and had no impact on the convictions.

The appeal was dismissed without calling on the Crown.

The accused was tried on a charge of trafficking in a firearm based on a single intercepted telephone call that the Crown alleged contained an offer to transfer a firearm.

The court assumed, without deciding, that the accused was the caller, that the subject matter was a firearm, and that he knew he was not authorized to transfer it.

Applying an interpretation of “offer” that requires more than a statement of intention and contemplates acceptance or rejection by the offeree, the court held the cryptic conversation was at least equally consistent with reporting on negotiations or an intended acquisition.

The Crown failed to prove beyond a reasonable doubt that an offer to transfer a firearm had been made.

The accused was acquitted.

The appellant, a police officer, was convicted of sexual assault after forcing a masseuse to perform oral sex while he was on duty.

He appealed his conviction and 15-month custodial sentence, arguing that his police memo-book notes were unlawfully seized in violation of his Charter rights and that the trial judge erred in assessing credibility.

The Summary Conviction Appeal Court dismissed the appeal, finding no reasonable expectation of privacy in police notes, no violation of the right against self-incrimination, and no error in the trial judge's credibility findings or the sentence imposed.

The accused was charged with unauthorized possession of a loaded prohibited firearm, possession of a firearm with a defaced serial number, possession knowing possession was unauthorized, and careless carrying of a firearm.

He admitted physical possession but asserted he had disarmed a gunman during a fight at a banquet hall and intended to surrender the weapon to police through the owner, while also dealing with an urgent flooding problem.

The court accepted the evidence of the accused and supporting witnesses, found his explanation credible and plausible, and held that the Crown failed to prove the requisite mens rea.

Applying the doctrine of innocent possession, the court concluded the possession was for an innocent purpose and entered acquittals on all charges.

The applicants brought an application for a declaration regarding the boundary between their property and the respondents' property, alleging trespass, negligent misrepresentation, and nuisance.

The court dismissed the trespass claim, finding the respondents had established a crystallized claim for adverse possession of a narrow strip of land up to an old fence line prior to the properties' conversion to the Land Titles system.

The negligent misrepresentation claim was dismissed as improperly pleaded and unproved.

The nuisance claim regarding water run-off was converted to an action and directed to a summary trial.

The accused sought exclusion of firearms and drug-related evidence seized during execution of telewarrants at a rural farmhouse, arguing the warrants lacked sufficient grounds, the nighttime authorization was unjustified, the use of tear gas rendered the search unreasonable, and the telewarrant process was improperly used.

Applying the Garofoli review standard and the Debot framework for confidential informant reliability, the court held that the informant's detailed first-hand information was sufficiently corroborated and that any errors or exaggerations in the ITO did not amount to bad faith or invalidate the warrants.

The court further held that a nighttime dynamic entry was justified given the reported presence of multiple firearms and drugs, and that the planned use of tear gas was not excessive force on the facts.

No breach of s. 8 was established, and the seized items were ruled admissible at trial.

Following a defamation judgment awarding general and aggravated damages, the plaintiffs sought substantial indemnity costs of $80,724.36.

The court applied the factors in rule 57.01(1) of the Rules of Civil Procedure and held the time claimed was excessive, the damages recovered were significantly lower than the amounts claimed, and the proceeding was a short uncontested trial by default.

The court gave very little weight to the plaintiffs' expert evidence and disallowed amounts for the expert report and an unexplained Westlaw disbursement.

Costs were fixed at $34,288 all-inclusive.

In a family shareholder dispute on the Commercial List, the moving parties sought summary judgment dismissing a cross-application as statute barred under the Limitations Act, 2002 and also sought appointment of a valuator under a unanimous shareholders agreement.

The court held that the responding shareholder knew or ought to have known by July 25, 2008 of the material facts supporting his breach of contract and oppression claims arising from the 2008 sale of shares in related corporations, so those claims were out of time.

However, the oppression claim concerning reimbursement of legal fees paid by the corporation on behalf of individual shareholders survived because the factual basis for that issue was only discovered in 2014.

The court appointed the proposed valuator and deferred the remaining fee-related oppression issue until after completion of the valuation and purchase process.

In a bifurcated civil action where liability had already been determined in favour of the plaintiff and damages were left for later adjudication, the plaintiff moved to dismiss or stay the defendant's summary judgment motion on damages.

The court held that an order directing a trial of an issue does not bar either party from later seeking summary judgment on that issue.

Relying on the modern approach to summary judgment endorsed by the Supreme Court of Canada, the court rejected a formalistic interpretation that would unnecessarily force parties to trial.

The plaintiff's motion was dismissed, but the parties were required to complete the discovery steps mandated by the earlier judgment before the defendant's summary judgment motion could be heard.

In this costs endorsement following a summary judgment ruling on liability in a software licence and copyright dispute, the plaintiffs sought partial indemnity costs of both the motion and the action to date.

The court held it was premature to award costs of the motion because the action had been bifurcated by the plaintiffs and the defendant had an outstanding monetary offer to settle the entire action, engaging the potential costs consequences of Rule 49.10(2).

The court declined to award action costs at this stage and deferred entitlement to motion costs until after the damages trial.

It nevertheless fixed the plaintiffs' partial indemnity costs of the summary judgment motion at $280,000 inclusive, should those costs later be awarded.

In a child protection costs motion following withdrawal of the protection application, the father sought over $100,000 against the children’s aid society and the mother, alleging the society had failed to investigate properly and had acted unfairly.

The court held that costs against a society arise only in exceptional circumstances and found the society had acted fairly, even-handedly, and in good faith throughout, including by reassessing its position as new information emerged and making repeated reasonable settlement offers.

The father’s allegations of conspiracy, bias, and misconduct were rejected as unsupported and frequently based on misreadings of the record.

The father’s claim for costs was dismissed, the mother was awarded $600, and the society was awarded $6,000 on its cross-motion, with a bar on further proceedings against the society until those costs were paid.

This was a post-trial costs decision following lengthy, highly contested mortgage litigation and an 11-day trial.

The successful defendants sought either full indemnity costs or a blended award, relying on their unaccepted offer to settle, fraud-like allegations advanced by the plaintiffs, and mortgage standard charge terms.

The court held that the offer to settle engaged Rule 49.10 and justified substantial indemnity costs from the offer date onward, while also recognizing limited enhancement arising from the unsuccessful fraud-like allegations.

After considering Rules 57.01 and 49 and the overall fairness of the award, the court fixed costs at $229,121.76.

On a family law motion and cross-motion, the court ordered the immediate listing and sale of the matrimonial home and denied the respondent's request for temporary exclusive possession.

Applying summary judgment principles and the prima facie right of a joint tenant to sale, the court held there was no triable issue supporting claims for permanent exclusive possession or a vesting order, and that immediate sale would not prejudice equalization claims because sale proceeds could be preserved.

The court also severed the divorce from corollary relief, fixed interim without prejudice spousal support at $3,208 per month, required continuation of insurance and beneficiary arrangements in favour of the respondent, and denied a non-depletion order under s. 40 of the Family Law Act.

Remaining relief was dismissed.

The Crown appealed two summary conviction decisions declining to impose the mandatory victim surcharge after relying on an earlier Ontario Court of Justice decision finding the provision unconstitutional.

The appeal turned on whether the Ontario Court of Justice could effectively apply that prior ruling without giving the Crown meaningful opportunity to make submissions on the constitutional issue.

The court held that although formal notice need not be required in every recurring case, the Crown must still receive sufficient opportunity to argue the validity of the legislation.

Because that procedural fairness requirement was not met, the waivers were set aside and the matters were remitted for a proper hearing.

Summary conviction appeal from a conviction for assault causing bodily harm arising from a Christmas Day attack with a golf club.

The appellant argued the trial judge misapplied the second and third branches of the W. (D.) analysis by failing to consider whether Crown evidence supported self-defence, and failed to address alleged consciousness of guilt by certain Crown witnesses.

The appeal court held the trial judge properly considered the appellant's state of mind, made supported factual findings that there was no threat and an available retreat, and was entitled to reject the self-defence claim.

The reasons were responsive to the live issues and permitted appellate review.

The conviction appeal was dismissed.

In a slip-and-fall action arising from an icy residential driveway at the plaintiff's workplace, the court granted summary judgment dismissing the claim against the tenant as statute-barred under ss. 4 and 5 of the Limitations Act, 2002 because the plaintiff knew or ought to have known from the outset that the premises were rented and that the occupier-tenant should have been sued.

The court also dismissed the landlord's third party claim for contribution and indemnity against the actual occupiers and the real estate parties as barred by s. 18, holding that s. 18 creates an absolute two-year limitation period not subject to discoverability.

On the merits, the absentee landlord was held not to be an occupier under s. 1 of the Occupiers’ Liability Act and not liable under s. 8 because the lease placed snow and ice removal on the tenant and no actionable landlord default was established.

The main action and third party proceeding were both dismissed.