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.

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 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.

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.

On a summary judgment motion in a wrongful dismissal action, the court held that a 56-year-old sales employee with just under 28 months of service was entitled to three months' reasonable notice.

Applying the Bardal framework, the court considered the employee's age, the relative brevity of service, and the uncertain job market at the outset of the COVID-19 pandemic, but declined to extend notice to six months.

The court further held that CERB payments were not deductible from damages on the facts.

The employee was entitled to damages reflecting base salary, car allowance, and commissions on prior sales that would have become earned and payable during the notice period, together with certain additional benefits to be quantified if not agreed.

The plaintiff brought a motion for judgment based on a consent to judgment signed by the defendants as part of a settlement agreement regarding a defaulted loan secured by Florida real estate.

The defendants argued that one corporate defendant should not be a party, that they lacked independent Canadian legal advice, and that the debt was satisfied by a foreclosure.

The court found that the non-signing corporate defendant should not be subject to the judgment, but rejected the other defenses, noting the defendants had US legal advice and the settlement agreement explicitly valued the foreclosed property at a set credit amount.

Judgment was granted against the signing defendants for the remaining balance, converted to Canadian dollars.

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 sought specific performance of an agreement of purchase and sale for a commercial property needed for a land assembly development.

The respondents repudiated the agreement, arguing that the wife was coerced into signing and did not sign all portions of the document.

The court found that a binding agreement was formed, rejecting the coercion claims as unsupported and finding the signatures sufficient.

The court granted specific performance, holding that the property was unique to the applicant's development plans and damages would be inadequate.

The plaintiffs brought a Rule 21 motion to determine the effect of a Pierringer Agreement and a prior court order on the remaining claims against the non-settling defendant and subsequent third and fourth parties.

The court clarified that the prior order restricted the plaintiffs' claim against the remaining defendant to several liability, but did not affect the remaining defendant's ability to pursue contribution from third parties.

The motion was resolved with all parties ultimately agreeing on this interpretation, and costs were deferred to the pre-trial or trial judge.

The moving party, a corporate defendant, brought a motion for a complex protective order before producing an affidavit of documents or reviewing its own relevant documents.

The plaintiff consented, but the self-represented co-defendant did not respond.

The court dismissed the motion, finding it premature and the proposed order over-broad.

The court noted that the moving party failed to identify specific harm associated with the disclosure of particular documents and relied on sweeping generalizations instead of the existing protections under the Rules of Civil Procedure.

The offender was convicted of aggravated assault and dangerous operation of a motor vehicle after deliberately driving his car at two pedestrians, striking one and causing a compound fracture.

The court weighed the gravity of the offence, the offender's prior record, and the severe injuries against mitigating factors including strong community support and stringent house arrest conditions.

The offender was sentenced to three years in custody for aggravated assault and a concurrent twelve-month sentence for dangerous driving, along with a three-year driving prohibition and a ten-year weapons prohibition.

The accused was tried on charges of sexual interference and sexual assault arising from allegations by a child complainant that he touched her vagina on multiple occasions and licked her vagina once while living in the same household as her mother’s common law spouse.

The court admitted the complainant’s videotaped statement under s. 715.1 of the Criminal Code and assessed the evidence under the W(D.) framework, while also applying the common-sense approach to child testimony described by the Supreme Court.

Although the trial judge found the complainant careful, credible, and unaffected by malice, he also found the accused sincere, internally consistent, and capable of raising a reasonable doubt.

Because the Crown failed to disprove the accused’s denial beyond a reasonable doubt, verdicts of not guilty were entered on both counts.

The offender was convicted of attempted murder and possession of a weapon for a dangerous purpose following an unprovoked stabbing attack on his sleeping fiancée.

The Crown sought a sentence of 10 to 12 years, while the defence proposed 7 years less a day.

The court weighed the severe aggravating factor of domestic violence and the profound impact on the victim against the offender's lack of a prior record, genuine remorse, and mental health struggles.

The court imposed a penitentiary sentence of 9 years, less 5 years of enhanced credit for pre-sentence custody and harsh detention conditions, leaving 4 years to serve, along with ancillary orders.

The Attorney General of Canada, on behalf of the United States, applied for an order committing the respondent into custody pending a decision on his extradition.

The United States sought the respondent for allegedly preparing fraudulent asylum applications and providing false identification documents.

The court found that the double-criminality requirement was met, as the alleged conduct would constitute counselling misrepresentation under the Immigration and Refugee Protection Act if committed in Canada.

The court also dismissed the respondent's arguments regarding identity, finding sufficient evidence that the respondent was the person sought.

The committal order was granted.

The accused, charged with sexual assault, brought an application under section 276 of the Criminal Code to adduce evidence of a subsequent sexual relationship with the complainant.

The accused argued the evidence was necessary to provide context for his narrative that the relationship was consensual from the outset, while the Crown opposed it as violating the twin-myth prohibitions.

The court granted the application in part, allowing evidence of the fact and nature of the subsequent sexual relationship to be admitted to assess credibility and context, but excluding details of specific sexual encounters.

The accused was charged with attempted murder, aggravated assault, possession of a weapon (a motor vehicle), and dangerous operation of a motor vehicle after striking a pedestrian with his car during a parking lot altercation.

The incident was captured on video surveillance, showing the accused repeatedly driving his vehicle aggressively towards the unarmed victim, resulting in a compound fracture to the victim's leg.

The court rejected the accused's claims of accident and self-defence, finding the driving was deliberate and a marked departure from the standard of care.

The accused was found guilty of dangerous driving, possession of a weapon, and aggravated assault, but acquitted of attempted murder as the Crown failed to prove a specific intent to kill.