SCJ 2019

The respondent successfully brought a motion for disclosure against the applicant.

Following the motion, the parties agreed on costs, but the applicant's counsel failed to finalize the settlement.

The respondent then filed costs submissions, seeking the agreed-upon costs plus additional costs for the applicant's failure to follow through.

The court reviewed the principles of costs in family law, emphasizing indemnification, settlement encouragement, and discouraging inappropriate behavior.

The court found the applicant's conduct regarding disclosure and the costs settlement unreasonable and ordered the applicant to pay the respondent's costs, including an additional amount for the delay caused by the applicant's failure to finalize the settlement.

Ian Ohab, charged with first-degree murder, brought a motion for a directed verdict of acquittal on the first-degree murder count.

The Crown argued that evidence of sexual assault and forcible confinement provided the basis for first-degree murder under s. 231(5) of the Criminal Code.

The court, applying the test for a directed verdict, found no evidence capable of supporting an inference of sexual assault or unlawful confinement.

Consequently, the motion was granted, and the accused will stand trial for second-degree murder only.

The appellant, Althea Reyes, appealed her conviction for failing to appear before court.

At trial, she conceded the actus reus of the charge and argued an honest but mistaken belief regarding her attendance.

On appeal, she sought to raise a new argument that she was not required to attend court, which was contrary to her trial position.

The court dismissed the appeal, finding that the appellant failed to meet the preconditions for raising a new issue on appeal, including the sufficiency of the evidentiary record and the absence of tactical reasons for not raising it at trial.

The court also declined to admit fresh evidence (transcripts from prior proceedings) as the Palmer test for admissibility was not satisfied.

The appellant appealed his convictions for two counts of assault, arguing that the trial was unfair due to numerous judicial interventions, that the trial judge failed to provide adequate reasons, and that the trial judge subjected his evidence to a greater degree of scrutiny than that of the complainant.

The court dismissed the appeal, finding that the trial judge's interventions were necessary for clarity and did not indicate bias, that the reasons were sufficiently detailed for appellate review, and that there was no evidence of uneven scrutiny of the appellant's and complainant's evidence.

The applicant sought substantial indemnity costs of $3,000.00 following a motion for temporary child and spousal support, while the respondent argued for no costs.

The court found that success on the underlying motion was divided, as the applicant did not obtain all the support claimed, and income was imputed to her as sought by the respondent.

The applicant also failed to make an offer to settle and acted unreasonably regarding her alleged inability to work and questionable expenses.

Applying the principles of costs in family law, the court determined that the presumption of costs for a successful party did not apply due to divided success and the applicant's unreasonable behaviour.

Consequently, the court ordered no costs to either party.

The applicant sought an urgent order to relocate with the parties' one-year-old daughter, Freya, from Toronto to Victoria, B.C., citing a new job opportunity and psychological isolation in Toronto.

The respondent opposed the motion, emphasizing the importance of the child's attachment to both parents.

The court dismissed the applicant's motion, finding that the proposed move was not in the child's best interests, as it would drastically reduce contact with the father during a critical developmental stage and disrupt the child's daily routine.

The Landlord, Medallion Corporation, appealed the Trustee's disallowance of its unsecured claim for damages related to the unexpired portion of a commercial lease following the tenant's bankruptcy and the Trustee's disclaimer.

The court affirmed the long-standing Ontario legal principle that a trustee's disclaimer of a lease in bankruptcy is deemed a consensual surrender, which extinguishes the tenant's obligations and precludes the landlord from claiming unsecured damages for the unexpired term beyond the preferred claim under the Bankruptcy and Insolvency Act and Commercial Tenancies Act.

The appeal was dismissed.

The defendants sought to transfer a civil action from Toronto to Newmarket, arguing common issues with a related family law proceeding.

The plaintiff opposed, asserting the civil action involved discrete transactions and that the family law matter was overly complex and largely irrelevant to his claims.

The court dismissed the transfer motion, finding the moving parties failed to demonstrate that the proposed venue was significantly better, particularly given the limited overlap of issues and the potential for undue complication of the civil claim within the broader family law litigation.

The court addressed cross-motions to vary parenting time, custody, and child support arrangements for three children.

It found both parents' high-conflict behaviour detrimental to the children's well-being.

The eldest child was granted autonomy in decision-making and parenting time.

A week-about schedule was ordered for the two younger children, with the middle child also granted decision-making autonomy for major issues, while the youngest's major decisions required parental agreement or court intervention.

Therapeutic interventions were mandated for the parents and children, and strict orders were issued to prevent the mother's partner from having contact with the children due to safety concerns.

Prospective child support was adjusted upwards for the father, reflecting the new parenting schedule and income disparities, but retroactive adjustments were denied.

Section 7 expenses were re-apportioned.

No damages or costs were awarded.

This endorsement addresses the determination of costs following the successful dismissal of the plaintiffs' action against the defendants Stewart and Indicom on appeal.

The Court of Appeal had referred the costs below back to the motion judge.

The court applied principles for assessing costs, including the custom that costs follow the event and the requirement for fairness and reasonableness.

It was determined that costs should be awarded as if the defendants had been wholly successful at the summary judgment stage.

The court adjusted the hourly rate for the defendants' counsel and reduced claimed hours for settlement discussions and observing other parties' motions, ultimately awarding partial indemnity costs for both the summary judgment motion and the action to the defendants.

The defendants brought a motion for a declaration that the plaintiff's injuries from an automobile accident did not meet the verbal threshold under the Insurance Act, which would bar recovery for non-pecuniary general damages and healthcare expenses.

The court found that the plaintiff, Balbir Mann, failed to prove on a balance of probabilities that he suffered a permanent, serious impairment of an important bodily function.

The plaintiff's credibility as a historian was significantly undermined by inconsistencies in his testimony, reports to doctors, and surveillance video footage.

Consequently, the expert opinions based on his unreliable self-reports were also deemed unreliable.

The court allowed the defendants' motion, dismissing the plaintiff's action for non-pecuniary general damages and healthcare expenses.

This motion concerned a dispute over a child's custody and access arrangement.

The Mother unilaterally withheld the 11-year-old son from the Father, citing the child's emotional distress and stated preference not to reside with the Father.

The Father sought compliance with the existing week-about order or custody, alleging parental alienation.

The Mother sought a suspension of the week-about access.

The court found a material change in circumstances due to the child's significant anxiety and emotional trauma regarding the existing arrangement.

While acknowledging the Father's concerns about parental alienation, the court found insufficient direct evidence to prove it.

The court temporarily suspended the week-about arrangement, ordering the child to reside full-time with the Mother and granting the Father supervised access.

The Office of the Children’s Lawyer was encouraged to become involved.

The accused was charged with four counts relating to the unlawful possession of a .22 calibre rifle and a sawed-off shotgun.

During the execution of a search warrant at the accused's residence, police located the rifle in his closet and the shotgun outside a broken window.

Photos of the accused holding the shotgun were also found on his cellphone.

The court found that the circumstantial evidence, including the location of the firearms and ammunition in the accused's bedroom, established beyond a reasonable doubt that he was in possession of both firearms.

The accused was found guilty of two counts, with the remaining two stayed under the Kienapple principle.

The defendant brought a motion for an order requiring the plaintiff to post security for costs, asserting the plaintiff was ordinarily resident outside Ontario.

The court found that the plaintiff was indeed ordinarily resident outside Ontario based on his significant time spent in Mexico.

However, the motion was dismissed because the plaintiff successfully demonstrated a good chance of success on the merits of his claim for wrongful dismissal or dependent contractor damages, and the court concluded that the justice of the case did not require an order for security for costs.

The accused, charged with second-degree murder, sought to have the partial defence of provocation left to the jury.

The Crown argued there was no air of reality to the defence.

The court applied the five-component air of reality test for provocation under s. 232 of the Criminal Code, considering both objective and subjective elements.

The court found that there was sufficient evidence for a properly instructed jury to have a reasonable doubt regarding the Crown disproving the elements of provocation, particularly concerning whether the victim's conduct constituted an indictable offence and whether it would deprive an ordinary person of self-control, despite the accused initiating the confrontation.

The court ruled that the defence of provocation would be left with the jury.

The plaintiff, William Rallis, brought an action against various judicial officials and court staff.

The court considered a request to dismiss the action under Rule 2.1.01 of the Rules of Civil Procedure, on the grounds that it was frivolous, vexatious, and an abuse of process.

The court found that claims against judicial officials were barred by absolute judicial immunity, and claims against court staff were barred by section 5(6) of the Proceedings against the Crown Act.

Consequently, all claims against the named judicial officials and court staff defendants were dismissed without costs.

The respondent brought a motion to change a consent order regarding child access, child support, and travel consents.

The applicant sought to reduce the respondent's access and modify travel consent requirements.

The court varied the access schedule, granting the respondent increased day access and conditional overnight access upon suitable accommodation.

The respondent's requests to reduce child support and expunge arrears were dismissed, as no material change in circumstances was found to warrant a reduction from the previously consented amount.

Travel consent requirements were modified, allowing the applicant to travel within Canada without the respondent's written consent under specific conditions, but retaining the requirement for international travel, school removal, or if it impinged on access.

The respondent was also ordered to promptly sign government documents.

This endorsement addresses the costs of an application brought by Vladimir Levine, which was dismissed.

Levine had sought a declaration that he was the sole client for an accounts assessment of Michael S. Deverett, Deverett Law Offices.

The court dismissed Levine's application and granted Deverett's request that Mikhail Titkine, a co-signatory, also be considered a client.

Deverett sought substantial indemnity costs, arguing Levine continued to make unfounded allegations of criminal conduct.

The court awarded Deverett $45,000 in all-inclusive costs, reducing the requested amount due to Levine's partial success on an earlier motion to strike.

The respondent brought a motion to stay or dismiss the applicant's motion to change a final order, citing delay and non-compliance.

The applicant's motion to change initially sought changes to custody, access, and child support, but most issues became moot due to the children's ages and living arrangements.

The court declined to stay or dismiss the motion, finding it was not oppressive or vexatious, and that both parties had contributed to disclosure issues.

The court determined child support arrears owed by the respondent to the applicant for 2015-2018 to be $8,288, with 2014 arrears requiring a trial of an issue.

The respondent's request to compel production of an order and to prohibit future motions by the applicant was denied, as was the applicant's request to change driving arrangements.

The defendant moved to dismiss the action for abuse of process, arguing that the plaintiffs' claims for negligent legal advice were estopped by a prior judgment enforcing a settlement.

The court found that the claims brought by the family members of the deceased were indeed estopped, as the prior judgment had conclusively determined the reasonableness and providence of the settlement for them, including infant plaintiffs under Rule 7.08.

However, the Estate's claim for negligent legal advice regarding its own compensation (or lack thereof) was not estopped, as this specific issue was not integral to the prior judgment and had been explicitly left open by the previous judge.

The Statement of Claim was struck with leave to amend to proceed solely with the Estate's claim.