SCJ 2022

The third party, Onward, moved to permanently stay the main action based on a release containing a no-claims-over clause that the plaintiff had signed in its favour.

The defendant, Enercare, had commenced a third-party claim against Onward for contribution and indemnity.

The court dismissed the motion, finding that the plaintiff had expressly waived its right to recover any damages attributable to Onward's fault in its amended statement of claim.

Applying the principle from Taylor v. Canada, the court held that this waiver eliminated any viable claim-over by Enercare against Onward, meaning the main action was not a prohibited proceeding under the release.

Following a motion to strike where success was equally divided, the parties submitted written arguments on costs.

The moving parties had successfully struck personal claims against the individual defendants but failed to strike the oppression remedy claim.

The responding party had to amend its pleadings to save the oppression claim.

The court found neither party was substantially successful and fixed costs at $40,000 on a partial indemnity basis, payable in the cause.

Following a motion to strike where personal claims against the individual defendants were struck but the oppression remedy claim survived, the court held a case management conference to settle the terms of the order.

The court issued a file direction settling the order and providing procedural directions for the delivery of a fresh as amended statement of claim, subsequent pleadings, and discovery.

The applicant sought leave to bring an application for judicial review of an adjudicator's interim determination under the Construction Act, which ordered him to pay the respondent contractor $119,314.

The applicant argued the adjudicator lacked jurisdiction because the contract had been terminated and thus 'ceased to exist', and that the adjudication conflicted with an existing lien action where security had been posted.

The Superior Court of Justice dismissed the motion, finding that a terminated contract does not 'cease to exist' for the purposes of the Act, the jurisdictional issue was not raised before the adjudicator, and the Act expressly permits concurrent adjudication and lien proceedings.

The accused, having been convicted of drug trafficking offences, applied to reopen his trial prior to sentencing to adduce fresh evidence.

The fresh evidence related to findings in a separate proceeding that a police officer had deliberately misled another officer to obtain search warrants.

The Superior Court of Justice dismissed the application, finding that the evidence could have been adduced at trial with due diligence.

The court concluded that the application was an attempt to reverse a tactical decision made by defence counsel at trial, who had chosen to challenge a different warrant rather than pursue the missing video evidence.

The applicant sought an equitable remedy to allocate the payment of a mortgage and a costs award from the proceeds of sale of a property (Osprey) that had been fraudulently conveyed to her, rather than from an adjacent lot.

The respondent university, a judgment creditor of the applicant's former partner, opposed the application.

The court dismissed the application, finding that previous court orders had nullified the applicant's interest in Osprey and granted the university enforcement rights against it.

The court also held that the mortgagee was entitled to pursue its remedy against the adjacent lot, and that the equitable doctrine of marshalling would have compelled this result to protect the university's unsecured interest.

The applicant, Cash Cloud Inc., sought an urgent interlocutory injunction to restrain the respondent, BitAccess Inc., from terminating a Master Purchase Agreement, deactivating cloud-based software used for cryptocurrency kiosks, and deleting customer data.

The court found it had jurisdiction to grant interim relief despite a mandatory arbitration clause.

The court granted a 60-day order preserving the customer data to allow the applicant to download it.

However, the court dismissed the injunction to restrain the software deactivation because the applicant failed to provide the mandatory undertaking as to damages required by Rule 40.03 of the Rules of Civil Procedure.

Sentencing following convictions on 14 counts arising from severe intimate partner violence, sexual assaults, forcible confinement, threats, assaults with weapons, and maiming within a domestic relationship.

The court held that denunciation and deterrence were the primary sentencing objectives, while also giving weight to the offender's youth, tragic upbringing, limited insight, rehabilitative prospects, and harsh pre-sentence custody conditions during Covid.

Applying the Criminal Code sentencing principles, Summers credit, and Duncan considerations, the court imposed a nine-year global penitentiary sentence less enhanced credit for pre-sentence custody.

Ancillary DNA, lifetime SOIRA, firearms prohibition, and custodial no-contact orders were also imposed.

The respondent husband brought a motion for summary judgment to dismiss the applicant wife's application to set aside their separation agreement.

The wife brought a cross-motion for financial disclosure.

The wife argued the agreement should be set aside due to financial non-disclosure, duress, undue influence, and unconscionability, alleging the husband dictated the terms and threatened her.

The court found genuine issues for trial regarding the validity of the agreement, noting the husband's failure to provide financial disclosure and evasiveness during cross-examination.

The court dismissed the husband's motion for summary judgment, granted the wife's motion for financial disclosure, and ordered the husband to pay costs on a full recovery basis.

Following a twelve-day trial regarding a property boundary and adverse possession dispute, both parties sought costs.

The plaintiffs claimed partial indemnity costs of $150,563.98, while the defendants claimed partial indemnity costs of $248,861.38 and relied on a Rule 49 offer to settle.

The court found that success was equally divided, as the plaintiffs succeeded on the boundary terminus issue and the defendants succeeded on the adverse possession claim.

Consequently, the court ordered that each side bear their own costs.

The mother was previously found in contempt of court for breaching parenting orders and alienating the child from the father.

At the penalty hearing, the court found the mother had not purged her contempt and continued to act unilaterally.

The court declined to change the child's primary residence or impose a jail sentence, finding a motion to change was the appropriate vehicle for custody issues.

Instead, the court ordered the mother to pay a $2,000 fine, reimburse the father $4,725 for reunification counselling, complete a high-conflict parenting course, and pay full indemnity costs of $16,314.38.

The father sought costs following a parenting review hearing that resulted in the suspension of the mother's contact with the child, as well as costs for an unsuccessful motion brought by the mother.

The court awarded the father full indemnity costs for the parenting review hearing due to the mother's conduct, and partial indemnity costs for the unsuccessful motion.

The mother was ordered to pay total costs of $14,627.85.

Following a trial where the plaintiff successfully proved a construction lien and defeated the defendants' counterclaim, the court determined the costs and interest payable.

The plaintiff sought substantial indemnity costs of $225,504.45, while the defendants argued for $85,000.

The court awarded the plaintiff $175,000 in substantial indemnity costs, citing the defendants' unreasonable conduct, misleading evidence, and failure to accept multiple generous offers to settle.

The court also awarded prejudgment interest at the contractual rate of 25%.

The appellants appealed their guilty pleas and suspended sentences for assault, claiming ineffective assistance of counsel.

They sought to introduce fresh evidence demonstrating they were misinformed by both their criminal and immigration lawyers regarding the immigration consequences of their pleas, specifically that they would face deportation.

The Superior Court of Justice admitted the fresh evidence, finding the pleas were uninformed and non-consensual.

The appeals were allowed, the convictions set aside, and a new trial ordered.

The applicants, a commercial tenant and its owner, sought relief from forfeiture after being evicted by their landlord.

The tenant argued that a new ten-year lease had been agreed upon in 2019 and that COVID-19 legislation prevented the eviction.

The court found that no new lease was formed, the tenancy was month-to-month, and the COVID-19 protections only applied to evictions for rent arrears, not expired leases.

The application was dismissed because relief from forfeiture is not available for the termination of a month-to-month tenancy.

Following a trial where the parties settled equalization and the court determined spousal support, both self-represented parties sought costs.

The respondent argued he was the successful party based on an offer to settle, but the court found the applicant was more successful because the respondent's offer contained non-severable terms regarding health benefits and divorce that were less favourable than the trial outcome.

Applying the factors in Rule 24(12)(a) of the Family Law Rules and principles regarding costs for self-represented litigants, the court awarded the applicant $2,500 in costs, inclusive of disbursements.

The plaintiff, a band councilor, sued the defendants for defamation based on a Censure Motion passed by the band council.

The Censure Motion stated that the plaintiff's social media post, which claimed the council had 'seen nothing' regarding financial statements and a budget for a year, was false and misleading.

The defendants brought a motion for summary judgment, arguing the defence of justification.

The court granted the motion and dismissed the action, finding no genuine issue for trial because the 'sting' of the Censure Motion was substantially true, as the plaintiff had indeed been present when financial statements and a budget were presented.

The applicant father sought costs of $11,550 following a motion brought by the respondent mother regarding parenting, child support, and disclosure.

The father argued he was the successful party on the primary issue of parenting time.

The court found divided success, as the mother succeeded on issues of decision-making, child support, and disclosure.

Due to the father's unreasonable conduct in failing to provide disclosure and the divided success, the court ordered that each party bear their own costs.

The plaintiff, a former executive at a property development company, claimed a 5% interest in the profit from the sale of a real estate development project.

The defendant argued the oral agreement was too uncertain to be enforceable and that any such interest was extinguished by a full and final release signed upon the plaintiff's termination.

The Superior Court of Justice found that the agreement was sufficiently certain and that the release, when read with the incorporated settlement correspondence, preserved the plaintiff's 5% interest.

The court awarded the plaintiff $1,372,992 in damages based on his expert's calculation of the profit from the sale of the lands.

Following a successful summary judgment motion for wrongful dismissal where the plaintiff was awarded $149,662.50 in damages, the court determined the appropriate costs award.

The plaintiff sought full indemnity costs or, alternatively, partial indemnity to the date of a Rule 49 offer and substantial indemnity thereafter.

The court rejected full indemnity costs as the defendant's conduct in the litigation was not reprehensible.

Applying the principles of reasonableness and proportionality, the court awarded the plaintiff costs on a blended scale totalling $38,156.25 inclusive of disbursements and HST, noting the plaintiff's efficient use of a single senior lawyer compared to the defendant's heavily staffed file.