SCJ 2015

This was a family law costs endorsement following an urgent motion concerning restoration of possession of a home and primary care of a child.

The applicant had been substantially successful on the underlying motion, and the court held that the respondent had acted unreasonably and in bad faith by advancing unsupported allegations of criminal misconduct and mental unfitness and by unreasonably opposing the motion.

Applying Rule 24 of the Family Law Rules, the court considered success, complexity, party conduct, counsel rates, time spent, comparable awards, and proportionality.

The court awarded full recovery costs of $20,000 inclusive of HST and disbursements, with pre-judgment interest at 3% from April 17, 2014.

This costs endorsement followed multiple motions in a product liability action continued by a bankruptcy trustee after the bankrupt plaintiff's discharge.

The court applied s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to determine fair and reasonable partial indemnity costs, considering complexity, proportionality, party conduct, and the absence of settlement offers.

The court rejected the responding parties' attempt to revisit prior costs entitlement based on alleged delay, finding aspects of their motion conduct unreasonable and cost-increasing.

Costs of $46,430.97 were awarded to the trustee on the other motions, while the trustee was ordered to pay $2,924.36 for the undertakings motion.

The plaintiff brought a motion to compel answers to extensive undertakings and refusals arising from discoveries in a municipal procurement action alleging biased disqualification, misleading of council, and improper favouring of the successful bidder.

The court imposed a staged timetable for outstanding undertakings, rejected the respondent's request for a lengthy extension, and held that certain questions said to require expert analysis instead sought fact evidence.

On refusals, the court required narrower questioning regarding the Integrity Commissioner's investigations, ordered production and answers concerning the final agreements with the successful bidder, and held that communications between municipal councillors and counsel were not protected by solicitor-client privilege solely because councillors were decision-makers.

Applying litigation privilege principles, the court required disclosure of non-privileged communications and particulars for any privilege claims, while resolving the remaining refusals on a question-by-question basis.

The plaintiff, a former nursing student, sued the defendants for damages after they falsely accused her of academic fraud.

The defendants brought a motion to strike the statement of claim on the basis that it disclosed no reasonable cause of action, related to an academic matter, and was an abuse of process.

The court found that while the university has broad discretion in academic matters, this does not extend to the negligent performance of an internal investigation or intentional torts.

The court struck the claims for negligence, breach of fiduciary duty, defamation, bad faith, and breach of privacy due to pleading deficiencies, but granted the plaintiff leave to amend the statement of claim.

The plaintiff sued the estate of a deceased neighbour for sexual batteries, threats, and harassment arising from incidents in 2002 or 2003 and January 2004.

The court held that, because the action proceeded against an estate, s. 13 of the Ontario Evidence Act required corroboration of the plaintiff's evidence by other material evidence.

Corroboration was found for the January 2 and January 3, 2004 sexual batteries and the subsequent harassment, including prompt complaint evidence, hospital observations, physical injuries, and independent observations of the defendant's post-incident conduct.

The earlier 2002 or 2003 allegation was dismissed for insufficient corroboration and, in any event, as outside the limitation period.

The plaintiff was awarded $45,000 for sexual battery, $5,000 for harassment, pre-judgment interest, and substantial indemnity costs of $8,500.

Following trial in a dispute over money owed from the purchase of a restaurant, the successful plaintiff sought substantial indemnity costs based on delay and aggressive cross-examination.

The court held that costs generally follow the event on a partial indemnity basis and that no special circumstances justified elevated costs.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the matter globally, considered complexity, divided success, proportionality, and reasonable hourly rates, and fixed costs against one defendant only.

Partial indemnity costs of $22,687.16, inclusive of HST and disbursements, were awarded, together with pre-judgment interest from October 3, 2014.

Two motions to change were tried together concerning parenting arrangements for two children.

The father sought to vary a prior order requiring supervised access to allow unsupervised access, while the paternal grandparents sought unsupervised access after years of supervised visits.

The court found that the children had a longstanding, positive bond with the grandparents and that the mother’s decision to restrict contact to supervised access following a disputed incident was disproportionate and arbitrary.

Unsupervised access for the grandparents was ordered.

The father’s request for unsupervised access was denied due to ongoing instability, including criminal conduct, substance use history, and inconsistent parenting involvement.

The court also declined to order the children’s return from Windsor to Sault Ste.

Marie, finding they were well settled and that relocation remained in their best interests.

The applicant sought a stay of proceedings on a pending fraud charge, alleging unreasonable delay contrary to s. 11(b) of the Charter.

Applying the pre-Jordan Morin framework, the court assessed neutral intake time, Crown disclosure delay, defence delay, institutional delay in both the Ontario Court of Justice and Superior Court, and prejudice.

Although the court found a period of Crown responsibility arising from delayed disclosure and recognized meaningful institutional delay, the combined delay fell within the lower end of the applicable guideline range and the evidence of actual prejudice was weak.

The stay application under s. 24(1) was dismissed.

This was a family costs endorsement following the applicant's partial success on a motion for leave to appeal a temporary child support order.

The court declined full indemnity because leave had not been granted on all issues and some fees were excessive, but treated the respondent's failure to voluntarily meet child support obligations as unreasonable litigation conduct.

Costs were fixed on a partial indemnity basis at $8,500 all inclusive.

On a motion for interim spousal support arising from a lengthy unmarried cohabitation, the court found a prima facie case that the claimant was a spouse within the meaning of the Family Law Act and had entitlement to support.

The court held that interim support could rest on both a compensatory element and, more importantly, a non-compensatory needs basis measured against the parties' highly extravagant lifestyle and the payor's substantial means.

The court further held that support should presumptively commence when notice of the claim was given and ordered retroactive interim support from April 26, 2012.

After considering gross-up principles under the Child Support Guidelines and the discretionary use of the SSAG in a high-income case, the court fixed interim support at $25,000 per month until trial.

Summary conviction appeal by a police officer convicted of assault with a weapon for baton strikes delivered during a G20 arrest.

The court rejected arguments that the trial judge failed to consider mens rea, applied too strict a necessity standard under the excessive-force justification provisions, or erred in excluding case-specific police opinion evidence.

The conviction appeal was dismissed because the trial judge applied the correct legal principles and made fact findings entitled to deference.

The sentence appeal was allowed because the sentencing judge erred in treating the appellant's lack of remorse, derived from his plea and testimony, as aggravating.

The custodial sentence was reduced to time served and replaced with 12 months' probation and community service.

The plaintiff moved for an interlocutory injunction restraining the defendants from transferring or encumbering assets connected to a rooftop solar energy project.

Applying the RJR-MacDonald framework, the court accepted that there was a serious issue to be tried but rejected the argument that a modified property-rights injunction test applied.

The court held the plaintiff failed to establish irreparable harm because the responding parties had already undertaken not to assign, transfer, or encumber the project assets without a court order and any loss would be quantifiable in damages.

The balance of convenience also favoured refusing the injunction.

The motion was dismissed with fixed costs to the respondents.

This costs endorsement followed summary judgment motions arising from a failed sale of a machine shop business and related limitations and pleading issues.

The successful plaintiff sought partial or substantial indemnity costs after defeating motions alleging the action was statute-barred, disclosed no cause of action, and failed to raise a genuine issue for trial on a counterclaim.

The court applied s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, held that fairness and reasonableness governed, and found no special circumstances justifying substantial indemnity costs.

Partial indemnity costs of $22,007.17 were awarded, with pre-judgment interest, apportioned two-thirds to one defendant and one-third to another.

The accused brought a pre-trial Charter application alleging that police unlawfully entered his residence without a warrant after responding to an animal complaint involving aggressive dogs.

The court held that warrantless searches are prima facie unreasonable, but found the police had a reasonable basis to believe exigent circumstances existed and that entry was necessary to check for persons in distress or ongoing danger inside the home.

The initial entry was characterized as a welfare check rather than a drug search, and the subsequent search was conducted under a tele-warrant.

The application was dismissed and no s. 24(2) analysis was required.

In this costs decision following a successful trespass trial, the plaintiffs sought full indemnity costs or, alternatively, partial indemnity costs to the date of their offer and substantial indemnity costs thereafter.

The court held that the plaintiffs' April 1, 2014 offer to settle complied with Rule 49.10(1) and that the trial judgment was more favourable than the offer.

The court further found that the responding parties' conduct, both in the underlying trespass and throughout the litigation and trial, warranted substantial indemnity costs beyond the ordinary rule-based consequences.

After excluding costs related to an interim injunction for which no costs had been awarded or reserved, the court fixed costs at $36,418.86 inclusive of fees, disbursements and HST.

In a family trial arising from a marriage breakdown involving four children, the court resolved disputed issues of separation date, custody and access, child support, spousal support, income, and equalization.

The court preferred the respondent’s evidence on key credibility disputes, fixed the separation date at September 19, 2012, and declined to adopt a parallel parenting regime despite the respondent’s request.

Sole custody remained with the applicant, with structured access and mutual information-sharing terms.

Both parties’ current incomes were found to be zero, child support was fixed at zero, section 7 expenses were ordered shared equally, and the applicant’s entitlement to compensatory spousal support was recognized but quantified at $1 per year pending review.

On property issues, the court ordered the applicant to pay the respondent an equalization payment of $10,380.21.

This was a costs endorsement following a motion concerning an injunction registered against property and the effect of a stay arising from a consumer proposal under the Bankruptcy and Insolvency Act.

Although the defendants were successful on the underlying motion, the court declined to award costs after considering the plaintiffs' lack of assistance, counsel's non-attendance at the hearing, and the assistance provided by defence counsel in addressing the issues.

Applying the court's discretionary costs principles under s. 131 of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, the court held that fairness and reasonableness required no costs order.

In a motion concerning monies previously paid into court under an interpleader order following settlement of a motor vehicle accident claim, the court determined competing entitlement claims by a costs creditor and former counsel.

The moving party sought payment of outstanding costs awards with post-judgment interest, while former counsel sought payment of an unpaid settled account.

The court held that although Rule 72.03 does not itself confer authority to determine entitlement, Rule 43.04 permits the court to decide the rights of claimants and direct payment out.

The court ordered payment to the costs creditor and former counsel first, with the balance to the injured claimant, and declined to award costs of the motion.

The moving parties sought summary judgment in a shareholder oppression dispute involving a closely held home-building corporation, requesting dissolution, appointment of a receiver, and related declaratory relief.

The court held that the longstanding informal manner in which the corporation had operated formed part of the parties' reasonable expectations and that the impugned conduct, including deferred and retroactive salary payments, did not amount to oppression on the record before it.

The court found that one alleged director had not been validly elected, but that his conduct nevertheless did not constitute oppressive conduct.

Applying Rule 20 and the summary judgment framework, the court denied summary judgment, determined several factual and legal issues, remained seized, and directed further steps toward salary determinations, valuation, and a possible buyout or liquidation if no buyout occurred.

This costs endorsement followed a Rule 21 motion in which the plaintiff had objected that disputed facts made the motion inappropriate.

The court accepted that the defendant's motion forced the plaintiff to address the enforceability of the termination provision to the extent permitted under Rule 21.

Applying the Rules and the Boucher costs framework, the court found it just and reasonable to award immediate costs rather than costs in the cause.

Partial indemnity costs of $4,714, inclusive of disbursements and applicable taxes, were awarded to the plaintiff.