SCJ 2020

This was a standalone costs endorsement following a motion to impose a discovery plan and resolve disputes over relevance and proportionality of document production categories.

The moving party obtained the principal relief on the underlying motion and sought partial indemnity costs, while the responding party argued for no costs or a substantially reduced amount and also sought costs of an adjournment.

Applying the court's broad discretion under s. 131 of the Courts of Justice Act and Rules 57.01, 1.04(1.1), and 39.02(4)(b), the court found the moving party was substantially more successful but reduced its claim for divided success, unreasonable expense, and unnecessary travel-related cross-examination costs.

Costs were fixed at $30,500 inclusive of HST and disbursements, payable within 30 days.

The defendants were convicted of multiple counts of robbery, use of an imitation firearm, and wearing a disguise, arising from a series of ATM robberies.

The defendants brought a Charter challenge arguing that the mandatory consecutive minimum sentences under s. 85(4) of the Criminal Code violated s. 12 of the Charter.

The court dismissed the Charter application, finding it was bound by appellate authority and that the sentences were not grossly disproportionate for the offenders or a reasonable hypothetical offender.

The court also rejected a request to artificially allocate the sentences to avoid collateral immigration consequences for one of the defendants.

Both defendants were sentenced to a global term of 7 years' imprisonment, less pre-sentence custody credit.

The moving party sought a stay of an order requiring him to produce documents and attend an examination in a foreign main bankruptcy proceeding, pending his father's application in Hong Kong to annul the underlying bankruptcy order.

The court determined the order was interlocutory and applied the RJR-Macdonald test.

The court dismissed the motion, finding no serious issue to be tried, no irreparable harm to the moving party, and that the balance of convenience favoured the trustees.

Sentencing decision following convictions after trial for human trafficking, receiving a material benefit from trafficking, advertising sexual services, sexual assault, assault, and breach of recognizance arising from exploitation of an intimate partner in the sex trade.

The court applied the aggravating-factor framework and tier analysis from trafficking jurisprudence, emphasizing coercive control, appropriation of earnings, sexual violence used as punishment, and the offender’s commercial exploitation of the complainant.

The court accepted significant mitigating factors, including the absence of a prior criminal record, community support, employment history, and rehabilitation prospects.

Applying the totality principle, Summers credit, and limited Downes credit, the court imposed a global sentence of seven years less 90 days, together with DNA, SOIRA, firearms, and no-contact orders.

The Crown appealed a conditional discharge imposed on a 19-year-old first offender who pleaded guilty to assault causing bodily harm.

The sentencing judge had imposed the discharge without giving the Crown notice or an opportunity to make submissions, which the appeal court found to be an error in principle.

However, upon conducting a fresh assessment, the appeal court concluded that a conditional discharge was the fit and appropriate sentence given the offender's youth, lack of record, genuine remorse, and positive rehabilitative steps.

The appeal was dismissed and the conditional discharge was upheld.

The appellant appealed his summary convictions for assault, forcible confinement, failure to comply with probation, and sexual assault against his wife.

At trial, the complainant recanted her initial police statement, which was admitted for the truth of its contents.

The appeal judge upheld the convictions for assault, forcible confinement, and breach of probation, finding no misapprehension of evidence or improper shifting of the burden of proof.

However, the appeal judge quashed the sexual assault conviction, finding the trial judge reversed the burden of proof on consent and relied on impermissible myths and stereotypes regarding the complainant's sexual preferences.

The applicants, farmers with multiple mortgages held by the late Leo Goodman, applied for a discharge of the mortgages, arguing they had been paid in full.

The parties disputed the outstanding balance due to poor record-keeping and an unresolved 2008 Farm Debt Mediation Act agreement.

The court determined four preliminary issues to assist the parties in reconciling the accounts: it found a 2008 Interim Agreement was an unenforceable agreement to agree, a $60,000 promissory note was unenforceable, the respondent failed to prove certain construction mortgage advances, and a $15,144 legal account was extinguished by the mediation agreement.

The court directed the parties to re-evaluate their positions based on these findings.

The plaintiff fractured her ankle while disembarking from the defendant's bus on a winter day.

The defendant brought a motion for summary judgment, arguing it met the requisite standard of care under the Occupiers' Liability Act.

The court dismissed the motion, finding that the evidence regarding the condition of the stairs and the reasonableness of the defendant's cleaning policy was inconclusive.

The court held that a jury is the appropriate body to assess the common sense question of whether the bus driver should have mopped the floor during winter stopovers.

The applicant brought a motion for summary judgment seeking an order finding the child in need of protection and placing the child in extended society care without access.

The parents had a history of substance abuse, domestic violence, and failure to comply with safety plans.

The father consented to the order, while the mother did not file responding materials but attended the hearing, acknowledging her ongoing drug use and inability to parent.

The court found no genuine issue for trial, determining the child was in need of protection and that extended care without access was in the child's best interests to facilitate adoption.

The parties were scheduled for a settlement conference regarding equalization of net family properties and support.

Both parties filed extensive briefs but failed to comply with mandatory Family Law Rules regarding financial statements and net family property statements.

Both parties also claimed outstanding disclosure from the other.

The court held that a settlement conference is not the appropriate forum to resolve extensive disclosure disputes and that parties must come prepared and fully compliant with the rules.

The settlement conference was adjourned, with terms set for scheduling any future conference, including the requirement to resolve disclosure issues by motion first.

On a jurisdiction motion in a family proceeding, the court dismissed claims seeking custody, access, and child support relating to three adult children with disabilities where substantial prior litigation and operative orders existed in Bermuda.

The court held that under the Children's Law Reform Act it had no subject matter jurisdiction to make custody or access orders for adult children, and that any Ontario proceedings concerning personal care should instead proceed, if at all, under the Substitute Decisions Act in the proper court.

The court further held that Ontario lacked territorial competence over the support claim under the Family Law Act because a final Bermuda support judgment already addressed the same issues, the responding party had not attorned to Ontario, and comity, finality, and the real and substantial connection analysis weighed against a fresh Ontario application.

In the alternative, Bermuda was found to be the more appropriate forum, and amendment of the pleadings was refused.

The tenant filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act.

The landlord attempted to terminate the commercial lease for non-payment of post-NOI rent and claimed to have completed a distress sale of the tenant's chattels just prior to the NOI filing.

The tenant brought a motion to set aside the lease termination and the distraint, and sought relief from paying rent during the COVID-19 shutdown.

The court set aside the lease termination, finding the landlord acted precipitously without giving the tenant reasonable time to deliver promised rent cheques.

The court also set aside the distraint, finding the sale was not completed prior to the NOI and did not comply with the Commercial Tenancies Act.

However, the court held the tenant was not relieved from paying post-NOI rent due to the pandemic shutdown.

The plaintiff was successful on a status hearing motion to prevent the dismissal of its action for delay.

The parties could not agree on costs.

The plaintiff sought $35,000, while the unsuccessful defendants sought $30,225.24, arguing the motion was only necessary due to the plaintiff's inaction.

The court awarded costs of $20,000 to the defendants on a partial indemnity basis, finding it was reasonable for them to compel the plaintiff to show cause and noting the plaintiff's primary explanation for the delay was inaccurate.

The applicants in an estate litigation matter brought a motion to remove the respondent Estate Trustee's counsel of record.

The applicants alleged bad faith, a conflict of interest arising from the lawyer's past marriage to the applicants' sister and past representation of two applicants, and the likelihood that the lawyer would be called as a witness at trial.

The court dismissed the motion, finding no disqualifying conflict of interest, no risk of misuse of confidential information, and no real basis to believe the lawyer would likely provide material evidence at trial.

The appellant, representing himself, brought a motion requesting state-funded counsel and state-paid transcripts for his summary conviction appeal pursuant to sections 683(1) and 684(1) of the Criminal Code.

The court assessed the appellant's financial circumstances, noting he receives a federal pension, owns a home and vacant land with significant equity, and has access to financial help from family.

Finding that the appellant has sufficient resources to pay the estimated $14,000 for counsel and transcripts, and noting the apparent weakness of the appeal, the court concluded it was not in the interests of justice to grant the requests.

The motion was dismissed and a timetable for the appeal was set.

The offender was convicted of fraud over $5,000 after defrauding a woman he met on a dating website of $595,000.

He used a false surname and convinced her to invest in a fictitious internet app and second mortgages, but instead used the funds for personal expenses, gambling debts, and restitution for a prior fraud conviction.

The court found the offender's actions highly exploitative and noted his extensive related criminal record.

The court sentenced the offender to 6 years' imprisonment, less 462 days of pre-trial custody credit, and ordered restitution and a fine in lieu of forfeiture, each in the amount of $558,456.

The applicant father brought an urgent motion to stay the enforcement of a final child support order pending the outcome of his motion to change.

The father's income from his soccer club was significantly reduced due to government-mandated closures during the COVID-19 pandemic, and the Family Responsibility Office intended to garnish his CERB benefits.

The court granted a six-month stay of the support order, finding that the father's business closure was beyond his control, he had continued to pay support based on his CERB income, and the mother's six-figure income meant the child would not be significantly prejudiced by a temporary stay.

The Crown brought an application regarding the jury selection procedure for a second-degree murder trial during the COVID-19 pandemic.

The Crown proposed that the Sheriff divide the jury panels into smaller groups in the absence of the accused, arguing the proposed 'B.C. Model' violated the Criminal Code.

The court dismissed the Crown's application, finding that dividing the panels in the absence of the accused would violate their right to be present at trial under section 650(1) of the Criminal Code.

The court adopted the B.C. Model, which allows for random selection and identification of jurors in open court with the accused present, while accommodating physical distancing requirements.

The defendants brought a motion to remove the plaintiffs' law firm of record, arguing a conflict of interest because lawyers from the firm acted on the underlying mortgage transaction and would likely be called as witnesses at trial.

The court applied the factors from Essa (Township) v. Guergis and found that the late stage of the proceedings, the delay in bringing the motion, and the plaintiffs' undertaking not to cross-examine the lawyers mitigated the risks.

The motion to remove counsel was dismissed.

The parties were involved in a family law dispute over custody and access.

The applicant obtained an ex parte Anton Piller order and an order for supervised access based on evidence from a witness (C.B.W.) alleging the respondent solicited sexual services from minors.

The respondent brought a motion to question C.B.W. before filing responding evidence, citing concerns about self-incrimination in an ongoing police investigation.

The applicant brought a cross-motion to compel the respondent to file responding evidence and attend questioning.

The court dismissed the respondent's motion, finding it would be unfair to allow questioning without reply evidence.

The court granted the applicant's motion, ordering the respondent to file responding affidavits and attend questioning, holding that the best interests of the child outweighed the respondent's self-incrimination concerns.