SCJ 2015

This was a costs endorsement following a civil action in which the plaintiff sought partial indemnity costs after recovering a fraction of the damages originally claimed.

The responding party argued the result was modest and that lower costs would be proportionate.

The court held that success was partially divided because the landlord substantially reduced the damages, and fixed costs at $20,000 plus disbursements and HST.

In a contaminated land action arising from a real estate purchase, certain real estate defendants settled with the plaintiffs under a Pierringer Agreement and sought to be removed from the proceeding.

The remaining vendor defendant refused to abandon a cross-claim against the listing agent and brokerage that pleaded both negligence and breach of contract under the listing agreement.

The court held that Pierringer principles applicable to contributory negligence claims did not plainly foreclose a distinct contractual indemnity claim by a non-settling defendant who was not party to the settlement agreement.

The motion to strike that cross-claim was dismissed, although a separate contributory-negligence-only cross-claim was struck on consent.

On a Garofoli review motion, the applicants sought leave to cross-examine the affiant on three Part VI authorizations arising from a robbery and homicide investigation.

The court reviewed the governing principles from Garofoli and Pires and held that there is no automatic right to cross-examine a wiretap affiant, but leave should be granted where there is a reasonable likelihood the questioning will assist the court on a material issue bearing on the authorization's validity.

Given the proposed areas of inquiry concerning the state agent, other suspects, and investigative omissions, the court found an evidentiary foundation sufficient to meet the threshold.

Leave was granted, limited to the questions identified in the applicants' factum.

This was a family law costs endorsement following a motion concerning the newborn child's habitual residence and return to Ontario.

The court held that the applicant had been entirely successful on an all-or-nothing motion and found the respondent's unilateral removal of the child to Newfoundland was precipitous, unilateral and unreasonable.

Applying the family costs framework, the court also considered the respondent's apparent limited means and the potential effect of a costs order on the child's care.

Costs of $6000 inclusive were awarded to the applicant, but in the cause.

This was a costs endorsement following dismissal of an application seeking appointment of a sole arbitrator under a 2009 agreement.

The successful party sought $32,896.93, including partial indemnity fees to December 7, 2012 and substantial indemnity thereafter based on an offer to settle.

The court rejected substantial indemnity costs, found some of the successful party's arguments and cross-examination unhelpful or irrelevant, and reduced the requested amount.

Fair and reasonable costs were fixed at $22,000 all-inclusive, payable forthwith.

This was a costs endorsement following a Rule 21 motion in which the defendants successfully struck three of four defamation allegations.

The plaintiff argued she had greater success overall or, alternatively, that there should be no costs or costs in the cause.

The court rejected those submissions, finding the defendants had achieved partial but meaningful success and that the reduced amount sought already reflected divided success and some duplication of effort by defence counsel.

Costs of the motion were fixed at $7,000 all-inclusive.

The appellant appealed from convictions arising from impaired driving charges after the trial judge found a s. 8 Charter breach based on audio and video recording of the appellant using a toilet in a police holding cell, but declined to grant either a stay or exclusion of evidence.

The appeal challenged the refusal of both remedies and the respondent sought to file fresh evidence about subsequent institutional responses by police to privacy concerns.

The court refused to admit the fresh evidence under the Palmer criteria, holding that the appeal had to be decided on the trial record.

Applying the deferential standards governing s. 24(1) and s. 24(2) remedies, the court found no reviewable error in the trial judge’s balancing and dismissed the appeal.

In a family law proceeding, both parties brought motions for further production and disclosure.

The respondent wife sought extensive corporate and trust records, as well as the examination of non-parties, to value the husband's family business and determine his income for support purposes.

The court dismissed the request for corporate valuation disclosure, finding the husband had no ownership interest in the business and his interest in a family trust was nil.

The court partially granted disclosure regarding the husband's income, ordering production of credit card statements and particulars of personal expenses paid by the company or his father.

The request to examine non-parties was dismissed as disproportionate, and the summonses were quashed.

The plaintiff moved to set aside a registrar's order dismissing a personal injury action as abandoned following prolonged delay after a motor vehicle accident claim.

Applying the Reid factors in a contextual analysis, the court found no adequate explanation for the litigation delay, no inadvertence, no prompt motion to set aside, and unrebutted presumed prejudice to the defence.

The evidence showed chronic file neglect, absence of any deadline-tracking system, repeated procedural missteps, and delayed involvement of indemnity counsel.

The motion was dismissed.

On a pre-trial s. 276 application in a sexual assault prosecution, the applicants sought leave to cross-examine the complainant on prior police occurrence reports concerning earlier allegations of sexual assault against other individuals.

The court applied the twin-myth exclusion in s. 276 and the admissibility framework in Darrach, together with the Court of Appeal’s rule in Riley permitting such cross-examination only where earlier allegations were recanted or demonstrably false.

Three prior occurrence reports met that threshold and were admitted solely for the limited purpose of challenging general credibility.

The court prohibited any questioning directed to pattern reasoning, similar-fact reasoning, or escalation theories, and barred inquiry into the factual sexual details of the prior incidents.

The applicant sought exclusion of drugs and related items seized from a motor vehicle, arguing arbitrary detention under s. 9 of the Charter and unreasonable seizure under s. 8.

The court held that although police attempted to detain the applicant, his immediate flight meant there was no detention engaging s. 9.

The court further held that the applicant had a reasonable expectation of privacy in the vehicle, but the warrantless seizure was authorized under s. 489(2) of the Criminal Code and was reasonable in the circumstances.

As no Charter breach was found, the application to exclude the evidence was dismissed.

The applicants brought an application under the Repair and Storage Liens Act arising from a commercial dump truck lease and the repairer's subsequent sale of the vehicle.

The court found that the respondent lessee was in arrears and had breached the lease, and that the respondent repairer sold the truck without providing proper notice to the applicants.

The court also held that, by entering into a further agreement after mailing notices, the repairer waived reliance on the earlier notice.

The sale was found not to be commercially reasonable and contrary to the Act.

This was a costs-only decision following settlement of a motor vehicle personal injury action on the morning trial was to commence.

The plaintiff accepted an offer providing for payment of $22,500, prejudgment interest, and partial indemnity costs to the date of the offer, but the parties disputed the amount and scope of recoverable costs.

The court disallowed several disputed disbursements, including counsel travel, the plaintiff's travel advance for a medical-legal assessment, two housekeeping expert reports, and interest on a litigation loan, emphasizing proportionality and the fair-and-reasonable approach under Rule 57.

Partial indemnity fees were fixed at $10,000 plus HST, disbursements at $15,683.64 inclusive of HST, and the defendant received $200 plus HST for the costs hearing, deductible from the plaintiff's award.

The accused, charged with sexual assault, brought an application to stay the proceedings for breach of the right to be tried within a reasonable time under s. 11(b) of the Charter.

Applying the pre-Jordan Morin framework, the court found a total delay of thirty-one months, with approximately eight and one-half months attributable to Crown disclosure failures and case management shortcomings, and approximately fourteen and one-half months attributable to institutional delay.

The case was not complex, none of the delay was attributable to the accused, and some prejudice was established, particularly to security interests.

Balancing the accused's Charter interests against the societal interest in a trial on the merits, the court concluded the delay was unreasonable and stayed the proceedings.

In a child protection summary judgment motion, the Society sought Crown wardship without access for two special-needs children who had been in care well beyond the statutory time limits.

The court held there was no genuine issue requiring a trial because the mother conceded the children remained in need of protection, the history of chronic neglect and parental incapacity was longstanding, and the evidentiary record established no realistic prospect of reintegration.

The court further held that access could not be ordered under the governing statute because it would impair the children's future adoption opportunities.

Crown wardship without access was granted.

The plaintiffs, standardbred horse breeders and related entities, moved for an imposed discovery plan and broad documentary production in a $60 million action arising from the termination of the Slots at Racetracks Program.

The court held that the defendants had not filed cogent evidence under Rule 29.2.03 to justify restricting otherwise relevant productions on proportionality grounds.

The court ordered both defendants to run the plaintiffs’ proposed search terms for affidavit-of-documents purposes, but limited most searches to January 1, 2009 through December 31, 2012, while extending searches involving SARP or HIP terminology back to January 1, 1998.

Ontario’s motion to file further affidavit material was dismissed, and the plaintiffs’ request for custodian details was dismissed without prejudice.

La requérante sollicitait une ordonnance alimentaire pour un enfant qui n’était pas l’enfant biologique de l’intimé, soutenant que celui-ci avait manifesté l’intention bien arrêtée de le traiter comme un enfant de sa famille.

Le tribunal a appliqué les principes issus de Spring v. Spring et a examiné objectivement la qualité de la relation, les responsabilités assumées, la discipline, le soutien financier et la perception de l’enfant.

La preuve a établi une relation réciproquement froide et non significative, un rôle parental principalement assumé par la requérante, et un soutien financier limité.

La demande d’aliments pour cet enfant a donc été rejetée, mais l’intimé a été condamné à rembourser 275,00 $ au titre de certaines dépenses pour les deux enfants biologiques des parties.

On a Charter application in a robbery prosecution, the accused sought exclusion of a stolen wallet found in his possession and inculpatory custodial statements.

The court held that the initial arrest for possession for the purpose of trafficking was unsupported by reasonable and probable grounds, and that the ensuing overnight detention and failure to bring the accused before a justice within 24 hours constituted arbitrary detention.

The subsequent cellblock tote search was not authorized as a search incident to arrest or detention and breached s. 8, although the accused retained standing to assert a privacy interest in property stored in the cellblock.

While the later robbery statement was voluntary on a stand-alone confessions analysis, the cumulative Charter breaches, including the arbitrary arrest and detention and deficiencies in fresh s. 7 and s. 10 advice during the robbery interview, required exclusion of both the wallet and the statement under s. 24(2).

Following conviction for importing cocaine, the Crown sought to have the accused sentenced in absentia after he failed to attend multiple post-verdict appearances and absconded.

The court held that while s. 475(1) of the Criminal Code permits proceedings to continue in an accused's absence where the interests of justice require it, that discretion should be exercised sparingly at sentencing.

Emphasizing proportionality and the individualized nature of sentencing, the court found the evidentiary record too incomplete and the process too functionally ex parte to determine a fit sentence, particularly where the Crown sought a penitentiary term above the asserted range.

The application was dismissed and sentencing adjourned until the accused is apprehended or another mechanism allows fuller information to be placed before the court.

Sentencing decision following jury convictions for multiple counts of assault with a weapon, aggravated assault, assault causing bodily harm, and unlawful confinement arising from prolonged physical abuse of a young child by a parent figure.

The court emphasized breach of trust, brutality, prolonged abuse, permanent physical scarring, and ongoing emotional harm, holding that denunciation and deterrence were paramount sentencing objectives in child abuse cases.

Although the offender was a first offender with strong community support and positive personal background, those mitigating factors did not outweigh the gravity of the offences.

A fit sentence was set at 30 months' imprisonment before pre-trial custody credit, resulting in concurrent 20-month custodial terms, plus a DNA order and lifetime weapons prohibition.