SCJ 2021

The plaintiffs brought a motion seeking an order under s. 248 of the Business Corporations Act requiring the defendants to pay $8 million into court as security for an environmental contamination claim.

Prior to the motion, the parties exchanged offers to settle.

While they agreed on the security amount, they disagreed on when and how the costs of the motion would be determined.

The defendants argued a settlement was reached and brought a motion to enforce it, claiming costs were a collateral issue.

The court found that costs were an essential term of the settlement offers and, because there was no unequivocal acceptance of all terms, no binding settlement was reached.

The motion to enforce the settlement was dismissed.

The applicant's motion for an advance equalization payment or interim costs was dismissed.

The respondent sought costs of $11,735.55 on a full recovery basis or $7,895.87 on a partial recovery basis.

The applicant argued costs should be left to the trial judge and cited limited ability to pay.

The court found the applicant's conduct unreasonable for bringing the same motion that had been previously dismissed without correcting evidentiary deficiencies.

The respondent had also made a valid offer to settle.

The court ordered the applicant to pay costs of $8,500 to the respondent.

The applicant wife sought leave to bring a motion for an advance equalization payment of $100,000 or interim disbursements of $100,000 to fund expert reports and legal fees.

A nearly identical motion had been dismissed by another judge six weeks prior due to a deficient evidentiary record.

The court found that the wife failed to meet the higher burden of showing a change in circumstances or providing the necessary factual foundation to support the revived motion.

The motion for leave was dismissed as an abuse of process.

The defendant sought costs following partial success on a motion to strike and a motion for summary judgment.

The plaintiffs, who were self-represented, also sought costs.

The court found that the defendant was the overall successful party, having successfully struck the 64-page statement of claim with leave to amend certain causes of action.

The court awarded the defendant costs in the all-inclusive amount of $5,000.00 on a partial indemnity basis, representing a 50% reduction to reflect its partial success.

The Crown sought a dangerous offender designation against the offender for historical sexual offences committed against his children.

The court reviewed psychiatric evidence indicating the offender had pedohebephilia and a moderate risk of sexual recidivism, but found he did not meet the criteria for a dangerous offender as his conduct was not intractable and the risk would decline with age.

The court instead designated him a long-term offender, imposing a sentence of 7.5 years imprisonment (with credit for pre-trial custody leaving 6 months and 1 day to serve) followed by a 10-year long-term supervision order.

The applicants sought an order directing the estate trustees to pay them their designated shares of the deceased's RRIF and TFSA accounts.

The deceased had designated her four children as equal beneficiaries of the accounts, but later executed a Will containing a standard clause revoking all prior testamentary dispositions.

The court held that under s. 52(1) of the Succession Law Reform Act, a revocation in a Will is only effective if it relates expressly to the designation.

Finding that the standard revocation clause did not expressly reference the designations, the court concluded the designations were not revoked and ordered the funds distributed accordingly.

The applicant and respondent purchased a house together as tenants in common.

The respondent moved out shortly after, and the applicant paid all mortgage and maintenance fees while living in the property rent-free.

After the property was sold, the applicant sought a declaration of unjust enrichment and a constructive trust, claiming 90% of the net proceeds.

The court dismissed the unjust enrichment claim, finding the applicant suffered no deprivation and there was a juristic reason to enforce their agreement to split proceeds equally.

The court ordered the net proceeds to be divided equally after accounting for deductions, including the applicant's operating expenses and the respondent's entitlement to occupational rent.

Following a family law trial where the respondent father was largely successful on the dominant issue of parenting, he sought costs of $54,000.

The applicant mother argued costs should be limited to $1,000 due to her limited ability to pay and partial success on property issues.

The court found the mother's conduct unreasonable, particularly her persistent refusal to share parenting and her unfounded allegations of family violence.

After considering the mother's severable offer on debts and her ability to pay, the court ordered the mother to pay fixed costs of $45,000 to the father.

The accused, charged with first degree murder, applied for bail.

The Crown's case relied on strong circumstantial evidence, including cell phone records and surveillance video, suggesting the accused lured the victim to a meeting where he was shot by a co-accused.

The court found the accused met the onus on the primary ground but failed on the secondary and tertiary grounds.

The accused had a lengthy criminal record, and the proposed sureties, including his mother in whose home loaded handguns were found, were deemed incapable of supervising him.

The court also held that releasing the accused would undermine public confidence in the administration of justice.

The bail application was dismissed.

The applicant law firm sought costs on a substantial indemnity basis after successfully enforcing an arbitration award against the respondents.

The respondents argued that the applicant, as a self-represented law firm, was only entitled to nominal costs because it failed to provide evidence of lost opportunity costs or distinguish between client time and counsel time.

The court agreed with the respondents, finding no egregious conduct to warrant substantial indemnity costs and applying appellate principles to award only nominal costs of $5,525.47.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding a defective boiler system installation, arguing the claim was statute-barred by the two-year limitation period.

The plaintiff argued it did not discover the fundamental incompatibility of the boiler systems until it received a draft engineering report in July 2015, having previously relied on advice that the issues were minor operational problems.

The court dismissed the motion, finding a genuine issue for trial regarding when the plaintiff had actual or constructive knowledge of the material facts giving rise to the claim, particularly given the plaintiff's reliance on the defendants' professional advice.

The applicant, charged with multiple drug and firearms offences, brought a Charter application under s. 8 and 24(2) to set aside a General Warrant and exclude evidence obtained from his vehicle and residence.

He argued the General Warrant lacked reasonable grounds to believe 'information' would be found in his vehicle, and that warrantless pole camera surveillance of his home violated his rights.

The court found the Information to Obtain established reasonable grounds for the General Warrant, as real evidence like controlled substances constitutes 'information'.

The court also held the pole camera surveillance did not violate s. 8 as it captured only the exterior of the home visible to the public.

The application was dismissed.

The offender pleaded guilty to aggravated assault, assault with a weapon, and breach of probation after stabbing a victim multiple times in a mall.

The Crown sought a dangerous offender designation and an indeterminate sentence.

The court reviewed the offender's extensive criminal record, psychiatric profile, and expert evidence regarding treatability and risk management.

The court declined to designate the offender as a dangerous offender, finding that the risk to the public could be managed in the community with strict conditions.

The offender was designated a long-term offender and sentenced to a 14-year determinate term (less 7 years pre-trial custody credit) followed by a 10-year long-term supervision order.

The plaintiffs brought an action for defamation and breach of a non-disclosure agreement regarding derogatory internet posts allegedly authored by the defendant under a pseudonym.

The plaintiffs moved for summary judgment.

The court dismissed the motion, finding multiple genuine issues requiring a trial, particularly concerning the identity of the author and the credibility of the parties.

The court declined to use enhanced fact-finding powers, holding that a trial was necessary to fully appreciate the voluminous and conflicting evidence.

Additionally, the court awarded $11,860 in costs to a former defendant against whom the action had been discontinued.

Following a judgment granting the applicant's application and dismissing the respondent's cross-application, the parties could not agree on costs.

The applicant sought costs on a substantial indemnity basis, relying on Rule 49 offers to settle.

The court found that the respondent's conduct did not warrant substantial indemnity costs generally, but the applicant's offers to settle triggered Rule 49.10 consequences.

The court awarded the applicant costs of $60,000, representing partial indemnity costs until the date of the offers and substantial indemnity costs thereafter.

The appellant, an Uber driver, appealed his conviction for sexual assault of a passenger, arguing the trial judge applied uneven scrutiny and misapprehended evidence.

The Crown cross-appealed the 60-day conditional sentence, arguing it was demonstrably unfit given the breach of trust.

The Superior Court of Justice dismissed the conviction appeal, finding no palpable and overriding error or material misapprehension of evidence.

The Court allowed the Crown's sentence appeal, finding the trial judge erred in principle and imposed a demonstrably unfit sentence that failed to reflect the serious breach of trust by a professional driver.

The sentence was increased to six months' imprisonment.

The plaintiff, an unregistered real estate salesperson, sued the defendant brokerage for unpaid commissions.

The court found that the plaintiff had performed services in connection with trades in real estate, but his claims for breach of contract, unjust enrichment, quantum meruit, and wrongful dismissal were barred by section 9 of the Real Estate and Business Brokers Act, 2002, which prohibits actions for remuneration by unregistered persons.

Although the action was dismissed, the court ordered the successful defendants to pay the plaintiff's full indemnity costs due to their reprehensible conduct in hiring an unregistered person and needlessly prolonging the litigation.

The defendant pleaded guilty to uttering a death threat, possessing a prohibited device, and possessing a loaded restricted firearm following a road rage incident where he brandished a handgun.

At the time, the defendant was on bail for drug and weapons charges in another province.

The court accepted a joint submission for a three-year global sentence.

The court awarded 166 days of credit for pre-trial custody, harsh pandemic conditions, and strict bail terms, resulting in a net sentence of 2 years and 178 days.

At a case conference regarding the plaintiff's motion for default judgment, the defendants indicated an intention to challenge the validity of service in Hong Kong under the Hague Convention.

The defendants' counsel appeared on a limited scope retainer solely to contest service.

The court held that it would be an abuse of process to allow the defendants to delay adjudication by retaining counsel incrementally.

The court scheduled the plaintiff's motion for default judgment and directed that any motions by the defendants to set aside service or lift the noting in default be heard at the same time.

This is a costs endorsement following two separate motions in a combined family law and oppression remedy proceeding.

The respondent was successful on a motion to stay the corporate claims in favour of arbitration, while the applicant was successful on a motion for financial disclosure.

The court found both parties engaged in some unreasonable conduct and made no formal offers to settle that met the rules.

The court awarded the respondent $9,151.32 for the stay motion and the applicant $12,774.65 for the disclosure motion, resulting in a net payment of $3,623.33 to the applicant.