Sean F. Dunphy

This decision addresses the issue of costs following a summary judgment in a wrongful dismissal case.

While the plaintiff obtained judgment, the awarded damages were a small fraction of the claim, and the defence was largely successful in limiting the award.

The court noted that both parties claimed victory and sought costs.

The judge found that both sides pursued claims or maintained defences beyond a reasonable prospect of success, hindering constructive settlement discussions and adding to litigation expense.

Given the divided success, the court declined to award costs to either party.

The defendant, Jessie Breese, was convicted of armed robbery, possession of a loaded firearm, and reckless discharge of a firearm following a bank robbery.

The court conducted a psychiatric examination under the Mental Health Act but found insufficient grounds for further inquiry into responsibility.

The sentencing decision balanced aggravating factors, such as the use and discharge of a firearm in a confined space with bystanders, and mitigating factors, including the defendant's youth, deteriorating mental and physical health, and a supportive family network.

The court imposed a total sentence of five years and nine months, concurrent for all charges, along with a lifetime firearms prohibition and a mandatory DNA order.

Poteck Power Corp. brought a motion for summary judgment to collect a 30% contingent fee from 2465855 Ontario Ltd. for identifying and securing over $1.2 million in electricity rebates from Toronto Hydro.

The defendant argued the contract did not apply to these rebates, which arose from an existing program rather than "billing errors," and alleged the plaintiff breached its duty of good faith.

The court found the contract, when read in its commercial context, clearly applied to the rebates discovered by the plaintiff.

The defendant's arguments regarding contract interpretation, ambiguity, and breach of good faith were rejected, with the court noting the defendant's evidence lacked credibility and was largely irrelevant to the contract's terms.

The motion for summary judgment was granted in favour of the plaintiff for the full amount claimed.

This case addresses the enforceability of an "automatic renewal" clause in a mortgage that stipulated a substantially higher interest rate and a renewal fee if the loan was not repaid at maturity.

The court found the clause unenforceable, deeming it a penalty on arrears of principal in violation of section 8 of the Interest Act.

While the mortgagors' alleged lack of actual knowledge of the clause was not a basis for invalidation due to their independent legal advice, the court ruled that the mortgage was not renewed at the higher rate.

The mortgagee was, however, entitled to three months' simple interest under section 17 of the Mortgages Act, as the repayment was initiated by the mortgagors and not in response to enforcement proceedings, despite the mortgagee's prior unjustified demands frustrating refinancing efforts.

The court also allowed a reduced fee for mortgage discharge and disallowed legal fees for the mortgagee's pursuit of unjustified claims.

The plaintiff, an unpaid trade supplier, brought a motion for default judgment against two defendants (ATD Contracting and Justin Rubatscher).

While the amount owed by ATD Contracting was adequately established, the court found insufficient evidence to grant judgment on the guarantee (due to the guarantee's effective date), interest calculations (conflicting rates and start dates), and trust remedies (lack of foundational evidence regarding funds received under the Construction Act).

The court declined to grant partial judgment, citing strong guidance from the Court of Appeal against it, and instead directed the matter to proceed by way of a viva voce hearing to address the evidentiary gaps and allow the case against all defendants, including a third defendant subject to bankruptcy proceedings, to be heard concurrently.

This decision concerns the award of costs following a successful application for specific performance of a real estate transaction.

The applicant sought substantial indemnity costs, totaling over $108,000.

The respondents argued the costs were excessive and that they lacked the means to pay.

The court awarded substantial indemnity costs, finding the respondents' conduct throughout the litigation warranted such a sanction.

The judge cited the respondents' actions in raising baseless issues, causing delay and friction, the asymmetrical importance of the issues to the parties, and the advancement of unproved allegations of dishonesty as key factors justifying the award.

The judge conducted a second case conference in a wrongful dismissal action, aiming to schedule a summary judgment motion.

The court noted the prevalence of "tactical pleadings" that hinder efficient resolution and emphasized counsel's dual duty of advocacy and objective advice.

Due to the persistence of complex, potentially tactical claims (e.g., suing directors personally, asserting cause for dismissal based on old issues), the case was deemed unsuitable for summary judgment.

Instead, the judge issued detailed directions for trial preparation, including managing a motion for costs appeal, developing a hybrid trial plan, identifying witnesses, preparing a joint book of documents with hyperlinks, and considering witness testimony by affidavit.

The court encouraged settlement before incurring significant trial costs.

The landlord applicant sought declaratory relief regarding its ability to lease former Sears space in an Ottawa shopping mall to a bank for a call centre.

The respondent, Hudson’s Bay Company (HBC), argued its consent was required under the lease due to a material change to the mall's merchandising plan.

The court found that the proposed lease constituted a "major change to the merchandising balance of the mall," would "materially change pedestrian flow," and would "detrimentally affect the Tenant’s merchandising environment," thereby triggering HBC's consent requirement.

The court further determined that HBC had not waived its rights, had not unreasonably withheld consent, and had not acted in bad faith.

The application was dismissed with costs awarded to the respondent.

The defendants, the City of Belleville and a by-law officer, brought a motion under Rule 21.01(1)(b) to strike the plaintiff's 235-page statement of claim for disclosing no reasonable cause of action.

The plaintiff's claim was based on a mistaken belief that private property is immune from municipal by-laws, and included various ill-defined allegations such as trespass, breach of agreement, double jeopardy, limitations, legal non-conforming status, Charter violations, Criminal Code violations, harassment, and slander.

The court found the statement of claim hopelessly flawed and struck it in its entirety, concluding that none of the alleged claims had merit and could not be salvaged by amendment.

Costs were awarded to the defendants.

The applicant, detained for nearly seven years under an immigration removal order, brought a habeas corpus application challenging the legality of his continued detention.

The court found that while the detention was of significant duration, it was reasonable and Charter-compliant given the applicant's persistent refusal to cooperate in establishing his true identity and obtaining necessary travel documents.

The court emphasized that the applicant's lack of cooperation was the primary cause of the prolonged detention, and the administrative review process was fair.

The application was dismissed, but without prejudice to future reconsideration if progress towards obtaining travel documents stalled.

The accused, Ricardo Davidson, sought release on a recognizance with house arrest terms after being in custody since July 30, 2019, facing multiple charges including sex trafficking, firearm possession, threatening, and assault.

This was his first bail hearing, and it was a reverse onus case.

The court dismissed the application, finding that Davidson failed to demonstrate that his continued detention was not justified on secondary and tertiary grounds under s. 515(10) of the Criminal Code.

The proposed release plan with a surety was deemed insufficient to mitigate the substantial likelihood of re-offending or interfering with justice, given the gravity of the charges, the strength of the Crown's case, and the accused's criminal record.

The court also addressed and dismissed arguments regarding pre-trial delay due to a joint trial and the risk of COVID-19 in detention.

The applicant sought a bail review to vacate a prior detention order and be released under revised terms, citing the COVID-19 pandemic as a material change in circumstances.

The court found the pandemic constituted a material change, warranting a de novo hearing.

However, the application was dismissed as the applicant failed to demonstrate that his continued detention was not necessary on both secondary and tertiary grounds, given his history of non-compliance, the unsuitability of proposed sureties, the strength of the Crown's case, and the gravity of the offences.

The court also found that the pandemic circumstances did not sufficiently mitigate the risks to public safety or confidence in the administration of justice.

Jorge Gomes was sentenced for two counts of operating a motor vehicle while impaired and causing bodily harm.

The court considered the severe and permanent injuries sustained by two victims, the offender's lack of prior criminal record, and the potential collateral immigration consequences as a permanent resident.

Emphasizing general deterrence and denunciation, particularly given the urban setting and the high blood alcohol concentration, the court imposed a sentence of three years in custody concurrently for each count, along with a three-year driving prohibition.

The court rejected a shorter sentence to avoid deportation, affirming that immigration consequences cannot justify an otherwise unfit sentence.

This decision addresses a blended voir dire in a sexual assault case, concerning the admissibility of the accused's statements to police and applications for a stay of proceedings due to pre-charge and post-charge delay.

The court found the accused was psychologically detained during his first statement, which was procured through deception and selective disclosure, leading to its exclusion under s. 24(2) of the Charter.

Applications for a stay of proceedings based on s. 7 and s. 11(b) Charter rights were dismissed, as the delay was deemed reasonable and no actual prejudice to a fair trial was established.

The defendant, Abdirahman Mohiadin, was convicted on six counts related to the possession of a loaded handgun in an automobile.

The court considered aggravating factors, including carrying a loaded handgun in public, and mitigating factors, such as the defendant's youth, first-time offender status, challenging background, and time spent under house arrest.

The Crown sought a sentence of 32-36 months, while the defence sought no more than 21 months.

The court imposed a global sentence of 38 months imprisonment, concurrent sentences for lesser counts, pre-sentence custody credit, a weapons prohibition order, and a DNA sample order, emphasizing denunciation and deterrence due to the proliferation of gun violence.

The defendant, Ahmed Mohamed Marzouk, was charged with robbery contrary to s. 343 of the Criminal Code.

The court found that a robbery occurred as described by the complainant, Mr. Hinds.

The central issue was the identification of the perpetrator.

The defendant presented an alibi, claiming he was in class at York University, but failed to provide sufficient corroborating evidence and was found to have lied on the witness stand.

The court applied the W.(D.) analysis and, after discrediting the defendant's testimony, found strong corroborating evidence identifying the defendant as the robber, including phone contact, meeting location near his residence, physical description, and subsequent location of the stolen vehicle.

The defendant was found guilty.

This decision addresses costs for an original summary judgment motion after the Court of Appeal set aside the judgment against the defendant, Mr. Plate.

Mr. Plate sought substantial or partial indemnity costs, arguing the plaintiff's motion was unreasonable.

The plaintiff, Atlas Copco, sought to deny costs or have them "in the cause." The court found the plaintiff's summary judgment motion was reasonably brought and did not warrant substantial indemnity costs as a sanction under Rule 20.06(a).

While Mr. Plate was successful on appeal, the original motion significantly narrowed the issues for trial, benefiting both parties.

Considering the divided success and the plaintiff's status as a crime victim, the court ordered that costs of the summary judgment motion be "in the cause," to be determined by the trial judge.

The Crown applied under s. 715(1) of the Criminal Code to introduce the preliminary inquiry evidence of a police constable at trial, arguing the constable was too ill to testify due to psychological disorders.

The court dismissed the application, finding that the constable was not "unable to testify" as required by the section, given his prior testimony at the preliminary inquiry and the speculative nature of anticipated harm.

Furthermore, while the accused had full opportunity to cross-examine at the preliminary inquiry, the court exercised its discretion to exclude the evidence, balancing its slight probative value against the material prejudice to the defence's ability to challenge credibility at trial, especially since other evidence was readily available.

The accused, Jamal Osborne-Adams, was charged with assault causing bodily harm following an incident at a Pizza Pizza restaurant.

The court rejected the accused's defence of self-defence and implied consent, finding him to be the aggressor throughout the altercation.

The judge found that the accused's actions were disproportionate and unreasonable, and that he intended to inflict serious bodily harm or was reckless as to whether such harm would ensue.

The accused was found guilty as charged.

The defendants sought directions for motions to strike portions of the plaintiff's Reply, which argued that the original patent invalidity decision could be supported on grounds other than the "promise doctrine" overturned by the Supreme Court.

The court, acting as case management judge, emphasized the need to move the complex, long-standing litigation towards trial and avoid further "silver bullet" motions on narrow legal points.

The judge ruled against scheduling Rule 21 or Rule 20 type motions, stating that the trial judge should determine the factors for exercising equitable discretion regarding the "special circumstances" doctrine.

However, motions within a Master's jurisdiction were directed to Master Sugunasiri.