SCJ 2015

This was a standalone costs decision arising from a partial summary judgment motion under the Partition Act and a related application authorizing sale of one of three disputed properties.

The court declined to award costs on the partition motion, holding that each sibling should bear their own costs in light of their conduct, the interlocutory nature of the dispute, and unresolved merits in the larger litigation.

The court awarded the parents full indemnity costs on their successful application because they had been drawn into a dispute in which they played no part and should not have had to sue their own children to disengage from title.

The unsuccessful daughter was ordered to pay $36,634.81 within 45 days, without awaiting the sale proceeds.

The defendants moved to stay an Ontario action alleging breach of contract and misrepresentation arising from an agreement to establish a Toronto accounting business operation.

Applying the forum non conveniens framework, the court held that British Columbia was the clearly more appropriate forum given the parallel action already commenced there, the risk of conflicting judgments, and a non-exclusive forum selection clause consenting to British Columbia jurisdiction for disputes under the agreement.

Although the parties and witnesses were divided between Ontario and British Columbia, the need for a single proceeding to resolve identical factual issues outweighed those considerations.

The Ontario action was stayed and the defendants received partial indemnity costs.

On a family law motion, the responding party sought to strike the applicant's amended application for non-compliance with a prior disclosure order, failure to file an affidavit listing documents, and failure to pay prior costs.

The court declined to strike the pleading immediately, but ordered full compliance with the earlier disclosure order by a fixed deadline and authorized a future motion to strike upon default.

The applicant's separate production motion was adjourned.

Costs of the motion were awarded to the moving party in the amount of $1,250 plus HST, payable after disposition of the adjourned production motion.

The appellant declarant appealed an arbitral award requiring payment of a first-year condominium budget shortfall, prejudgment interest under the corporation’s bylaws, and substantial indemnity costs.

The court held that the standard of review for a Condominium Act arbitration appeal on questions of law was correctness, and found the arbitrator erred in interpreting s. 75 as barring any challenge to the propriety or reasonableness of expenses included in the shortfall.

However, because the arbitrator had in substance considered and rejected the appellant’s objections to the disputed expenses, the result would have been the same and the award was not set aside.

The court also upheld the bylaw-based interest award and the substantial indemnity costs award, including mediation costs, and dismissed the appeal.

On a family law motion arising from a long common-law relationship, the moving party sought interim financial relief, questioning directions, enforcement remedies, substituted service, and costs against a non-compliant respondent with substantial support arrears and unpaid prior costs orders.

The court ordered payment out of trust of $60,000 for living expenses and $25,000 for legal fees, imposed a fresh disclosure and questioning timetable, and barred the respondent from seeking further relief without leave until all arrears and costs were paid.

The court declined to retroactively convert prior costs orders into support for Family Responsibility Office enforcement, but ordered the current motion costs to be treated as spousal support enforceable by the Family Responsibility Office.

Substituted service was also authorized.

The plaintiff mortgagee brought a summary judgment motion seeking sale of the mortgaged property, possession, and payment of the mortgage debt after default on a third mortgage.

The defendant argued there were triable issues concerning the amount advanced, the purpose of the mortgage, related mortgage transactions, and his alleged inability to understand the transaction due to disability.

Applying the post-Hryniak summary judgment framework under Rule 20, the court found the record sufficient to determine that the mortgage funds were advanced as directed, the mortgage was in default, and the psychiatric report did not support incapacity.

The court also found no evidence supporting the counterclaim for damages tied to another mortgage transaction.

Summary judgment was granted.

The appellant appealed a conviction for impaired driving arising from erratic driving, speeding, the odour of alcohol, and physical signs of impairment observed during a traffic stop.

He argued that the trial judge failed to analyze the in-car video, failed to consider evidence consistent with sobriety, misapplied the governing impairment test, and returned an unreasonable verdict.

The appeal court held that the trial judge was not required to review every piece of evidence in detail, was entitled to rely on the officer's evidence, and correctly applied the requirement that any degree of impairment of the ability to drive is sufficient.

The findings of fact were supported by the record and attracted appellate deference.

The summary conviction appeal was dismissed.

In this personal injury action arising from a motor vehicle accident, the moving defendant sought leave after the action had been set down for trial to bring a motion compelling the plaintiff to attend a defence psychiatric examination shortly before a scheduled jury trial.

The court held the defendant knew or ought to have known for years that serious psychological impairment was being advanced and that the recent report did not amount to a substantial or unexpected change in circumstances.

The court found the late request risked imperilling the long-scheduled trial and would unfairly prejudice the plaintiff, while any prejudice to the defendant was self-induced.

Leave and the requested examination order were refused.

The moving contractor sought leave under the Construction Lien Act, a declaration of substantial performance, and partial summary judgment for unpaid contract and change-order amounts arising from a municipal fountain rehabilitation project.

The court held that the improvement was ready for use and that the remaining rectification items were minor and well below the statutory threshold in s. 2.

The court found no genuine issue requiring a trial on the unpaid base contract balance, change order 7, and an admitted pending change order amount, but held that change order 8 for mould abatement raised a triable issue as to quantum.

Partial judgment was granted for $188,342.56 plus prejudgment and postjudgment interest, and substantial performance was declared.

This supplementary costs decision followed a motion in which the plaintiff obtained leave to amend its statement of claim to substitute new defendants on the basis of misnomer.

Although the plaintiff was successful on the underlying motion, the court held that no costs order should be made because both sides were roughly equally responsible for the circumstances giving rise to the motion.

The court noted both the use of a non-existent entity name by the principal of the defendant side and the plaintiff lawyer's failure to conduct basic corporate or real estate searches before issuing the claim.

The applicant sought leave to appeal a family law procedural order that extended the respondent's time to file an answer and financial statement, preserved the status quo, and fixed costs at $200.

The court reviewed the strict test under Rule 62.02(4) of the Rules of Civil Procedure and held there was neither a conflicting decision on principle nor sufficient reason to doubt the correctness of the order coupled with issues of broader importance.

Although the motion judge dealt with the Form 14B motion before expiry of the four-day response period under the Family Law Rules, the court found leave to appeal was still not warranted.

The motion for leave to appeal was dismissed.

Sentencing following a jury conviction for aggravated assault arising from an alcohol-fuelled beer bottle attack that caused a permanent facial scar.

The Crown sought a custodial sentence of two years less a day, emphasizing denunciation and deterrence, while the defence relied on the offender's traumatic upbringing, addiction history, sustained sobriety, employment stability, and family responsibilities.

The court held that, although the offence was very serious and would ordinarily warrant an upper reformatory sentence, the case was exceptional because of the offender's genuine rehabilitation over more than three years.

A suspended sentence with three years' probation was imposed, together with DNA and weapons prohibition orders.

Two plaintiffs injured as passengers in a motor vehicle accident sought leave to add the owner and driver of their own vehicle as defendants after the two-year limitation period had expired.

The court held the discoverability doctrine did not postpone the running of time because the plaintiffs knew the identities of the proposed defendants from the outset and had sufficient facts, including speed evidence, to ground a negligence allegation within the limitation period.

The court further found the plaintiffs failed to exercise reasonable diligence by not pursuing available police disclosure through a Rule 30.10 Wagg motion and by not adequately investigating their own clients' accounts.

The motions to amend were dismissed in both actions.

The applicant sought divorce, support, property relief, and exclusive possession of an Ottawa condominium, while the respondent argued the parties had already been validly divorced in Lebanon.

After hearing expert evidence on Lebanese Sunni marriage and divorce law, the court held the 2009 Lebanese divorce was valid and recognizable under s. 22 of the Divorce Act.

The court rejected the applicant’s allegation that reconciliation during the waiting period nullified the divorce, finding her evidence inconsistent and unreliable.

Because the foreign divorce was recognized, the court held it lacked jurisdiction to grant corollary relief under the Divorce Act or spousal support under the Family Law Act to a former spouse.

The application was dismissed, interim support was terminated effective January 31, 2015, and the respondent’s cross-motion regarding possession of the condominium was also dismissed.

This was a costs decision following dismissal of a summary judgment motion and granting of a cross-motion in a family civil dispute.

Although the plaintiffs were successful on the motions, the court held they had also caused wasted costs through the commencement of a Small Claims Court action and the need to amend the pleadings.

The court declined to award immediate costs and instead ordered fixed costs in the cause.

If the plaintiffs ultimately succeed, they will recover $10,000 all inclusive for the two motions; if the defendant ultimately succeeds, she will receive no costs for those motions.

In an application under the Arbitration Act, 1991 to set aside or alternatively seek leave to appeal parts of an arbitral award, the respondent municipality brought a motion challenging the court's jurisdiction over the appeal aspect and seeking cross-examination on an affidavit filed by opposing counsel.

The court held that an arbitration clause providing that the arbitrator's decision would be final and binding and that there would be no appeal implicitly excluded any application for leave to appeal under s. 45(1).

The court refused to dismiss the jurisdiction motion for delay or defer it to the application judge, ordered the deponent to attend for cross-examination with relevant documentation, and awarded the moving party its $527.80 non-attendance expense.

The cross-motion to compel opposing counsel to attend for cross-examination was dismissed.

Sentencing following convictions arising from a traffic stop that led to the seizure of more than three kilograms of marijuana and $71,150 in cash, with the offender acting as a courier.

The Crown and defence made a joint submission for a custodial sentence of nine months followed by twelve months' probation.

The court accepted the joint submission, emphasizing denunciation and deterrence for large-scale drug trafficking while recognizing the offender's first-offender status and strong rehabilitation prospects.

A 10-year weapons prohibition and forfeiture order were imposed, but no DNA order was made.

Separated spouses brought competing family law motions after a long-term marriage.

The applicant wife sought a further advance on equalization from matrimonial home sale proceeds held in trust, while the respondent husband sought temporary spousal support and related relief.

Applying the Zagdanski framework, the court found sufficient certainty that at least a further minimum equalization amount would be payable, established need for funds, and fairness in ordering only a partial further advance given unresolved offsetting claims.

The court ordered a $60,000 advance on equalization, directed affidavit evidence on disputed personal property values, and awarded the husband temporary spousal support of $1,450 per month.

In a family law motion to change, the moving party was granted leave to seek variation of prior final orders concerning custody and child support based on a material change in circumstances.

Pending the final hearing, the court accepted updated income figures and made a temporary child support order using a straight set-off calculation under s. 9 of the Child Support Guidelines.

The court proceeded on a temporary premise that one child primarily resided with the responding party and that the moving party did not have that child more than 40 percent of the time.

The prior final support order was temporarily varied to require payment of $27 per month effective December 1, 2014.

In a court‑appointed receivership over payroll service companies, the receiver sought a declaration that a customer breached the stay provision of the receivership order by recalling funds previously transferred through a pre‑authorized debit.

The funds had already been deposited into the debtor’s consolidated account prior to the receivership order but were later reversed after the customer learned of the receivership.

The court held that once deposited, the funds constituted “Property” of the debtor within the meaning of the receivership order, even if intended for payroll.

By requesting reimbursement through its bank after receiving notice of the receivership, the customer exercised a remedy affecting the debtor’s property and breached the stay.

The court ordered repayment of the funds to the receiver with interest, while allowing the customer to prove a claim in the receivership distribution.