SCJ 2015

The accused brought a pre-trial motion to exclude cannabis and cannabis resin seized from his residence pursuant to a search warrant.

He argued the information to obtain failed to provide sufficient information about confidential informants' reliability and that the forced entry execution of the warrant was itself unreasonable under section 8 of the Charter.

Applying the governing search warrant review principles and the Supreme Court's section 8 jurisprudence on forced entry searches, the court held the warrant was validly issued and the police manner of entry was not shown to be excessive or unreasonable.

The application to exclude the evidence under section 24(2) was dismissed.

On a Rule 7.08 motion for approval of a global settlement arising from a child cyclist's catastrophic injury claim, the court approved the tort and accident benefits settlements but scrutinized the proposed contingency fees.

Applying the governing contingency fee jurisprudence, the court held that a one-third fee was fair and reasonable for the tort action given liability risk, lengthy carriage, high disbursements, and the result achieved.

The same percentage was not justified for the accident benefits claim, where the litigation risk and contentiousness were materially lower, reconstructed dockets were unreliable, and the contingency fee agreements were executed late.

The court reduced accident benefits fees, fixed total legal fees and disbursements, and refused a sealing order for failure to satisfy the open-court test.

In a family law trial between self-represented former spouses, the court resolved claims for child support, spousal support, equalization, a restraining order, and variations to parenting terms.

The court made strong adverse credibility findings against the applicant, accepted the respondent's evidence where conflicts arose, and found the final separation date was October 15, 2010.

The court held that neither party owed an equalization payment, fixed child support at $1,538 per month, declined to make a present order for section 7 expenses, and ordered spousal support of $1,777 per month through a combination of mortgage, vehicle, and direct payments.

The claim for retroactive arrears and the request for a restraining order were dismissed, and divorce was severed for later uncontested application.

Sentencing decision following convictions for possession of a restricted weapon, possession of a loaded restricted firearm without a licence, and possession of a firearm knowing it had been obtained by crime.

The court emphasized denunciation and deterrence for loaded restricted handgun possession, particularly where the firearm was stored in a residence with very young children and the offender had a lengthy criminal record with continuing offending while on bail and in custody.

Applying the pre-sentence custody credit approach from Summers, the court granted enhanced credit at 1.5 to 1 but reduced it by two months because the offender’s custodial misconduct made full remission unlikely.

A sentence of four and one half years' imprisonment, less 23.5 months' credit, was imposed together with a lifetime weapons prohibition and DNA order.

This was a costs endorsement following a family trial concerning the father's claim for unsupervised access and, to a lesser extent, joint custody or decision-making respecting the child.

The court rejected any suggestion of divided success and found the matter should have been resolved without trial.

The court held the respondent's inflexible position made settlement impossible and accepted the time spent and hourly rates of the applicant's counsel as reasonable and necessary.

Costs were awarded to the applicant inclusive of disbursements and HST.

This was a standalone costs decision following dismissal of a motion to enforce an alleged settlement agreement.

The successful responding party on the underlying motion sought substantial indemnity costs, relying on an offer to settle that required the moving parties to abandon their motion and pay partial indemnity costs.

The court held that, although compromise is not always required for offer-to-settle consequences, the offer here was a pretence rather than a genuine settlement offer and did not warrant elevated costs.

Applying the usual costs criteria, the court awarded $6,800 all inclusive on a partial indemnity basis, payable forthwith.

In this family law costs decision following a custody and child support trial, the successful responding party sought substantial indemnity costs based on an offer to settle.

The court held that the offer did not satisfy Rule 18(14) of the Family Law Rules because the trial result was not as favourable as or more favourable than the offer.

However, the responding party was entitled to partial indemnity costs because she succeeded on the major issues, including residence of the children and guideline child support.

The court fixed fair and reasonable costs after considering the reasonableness of counsel's rate and time, the importance of the issues, and the unsuccessful party's ability to pay.

In a wrongful dismissal action, the moving party sought production of an internal email exchanged during the employer’s misconduct investigation and copied to external employment counsel.

The court applied the settled test for solicitor-client privilege and held the employer failed to prove the email entailed the seeking or giving of legal advice.

The surrounding evidence suggested the author was providing an internal unbiased opinion on discipline rather than communicating for the purpose of obtaining legal advice, and the employer relied only on weak hearsay evidence on the author’s intention instead of best evidence.

The motion to compel production was granted, with costs to the moving party subject to written submissions.

The moving party sought to set aside a default judgment arising from an unpaid casino line of credit, arguing prompt action after awareness, inability to understand English, and arguable defences of unconscionability and public policy.

The court found the motion was not brought without delay and that the explanation for the default was inadequate, but accepted that there was at least an arguable defence with an air of reality.

Weighing the interests of justice and prejudice to both sides, the court held the matter should proceed on the merits.

The default judgment was set aside on strict terms, including payment of the judgment amount plus post-judgment interest into court and delivery of a defence and documentary productions.

Following dismissal of a commercial lease and nightclub-related civil action after trial, the successful defendants sought substantial or full indemnity costs, relying in part on an unaccepted offer to settle and alleged objectionable conduct by the plaintiffs.

The court held that Rule 49.10 did not automatically justify enhanced costs where the action was dismissed outright and, applying appellate authority, found no egregious or reprehensible conduct warranting substantial indemnity costs under Rule 49.13.

Costs for represented defendants were fixed at partial indemnity in the amount of $35,000 inclusive, while self-represented defendants were awarded a moderate partial indemnity amount of $6,000 inclusive after applying the governing framework for self-represented litigants.

Costs were ordered payable by the plaintiffs only.

The applicants sought a declaration that Ontario opticians could lawfully dispense corrective eyewear using a business model in which an onsite refractive test would be faxed to a remote optometrist or ophthalmologist who had not examined the customer, and who would then issue a prescription.

The court held the applicants failed to establish the legality of the model, accepting that the combined statutory scheme and professional standards governing opticians, physicians, and optometrists precluded dispensing based on a prescription issued without examination of the customer.

The court further held that, even if the model were legally permissible, declaratory relief should be refused because the application was based on hypothetical facts, no actual lis existed, and the court should not intervene in an unresolved policy debate concerning refractive testing regulation.

The application was dismissed with costs to the respondent fixed at $23,000 inclusive, and the intervenors bore their own costs.