C. Stephen Glithero

The appellant appealed convictions for two counts of assault and two counts of assault causing bodily harm arising from incidents involving his intimate partner, as well as the resulting intermittent custodial sentence and probation order.

The appeal argued that the trial judge misapprehended the evidence and improperly relied on the rule in Browne v. Dunn when assessing credibility.

The court held that the trial judge was largely correct in finding that several aspects of the appellant’s testimony had not been properly put to the complainant in cross-examination and was entitled to reduce the weight of that evidence.

Any minor factual errors were insignificant and did not materially affect the reasoning or outcome.

The sentence was also found to be within the appropriate range given the seriousness of the injuries and the domestic context.

The defendants sought costs following their successful motions to compel the plaintiff to provide particulars of damages and to quash a summons to a witness.

The court found that the plaintiff's conduct, which included unfounded allegations of bad faith, a last-minute recusal motion without notice, and unreasonable delay tactics, warranted an elevated costs award.

The court fixed the total costs payable by the plaintiff to the defendants at approximately $45,000.

Following written reasons granting judgment to the applicant, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs, arguing the respondents engaged in oppressive and unfair conduct and failed to respond to settlement overtures or to file costs submissions.

The court found the time spent by counsel and the claimed hourly rates to be reasonable, and accepted the disbursements claimed.

Given the respondents’ conduct and the fact that the application sought to enforce an entitlement already established in prior proceedings, the court concluded that a substantial indemnity award was justified.

Costs of $12,203.43 were fixed against the respondents jointly and severally.

Following dismissal of a motion for summary judgment, the defendant sought costs of approximately $18,500 and argued the plaintiff acted unreasonably in bringing the motion.

The court considered Rules 20.06 and 57.01 of the Rules of Civil Procedure and the conduct of the parties regarding whether examinations for discovery should occur before the motion.

The plaintiff had proposed delaying the motion to conduct discoveries, consistent with guidance from appellate authority on summary judgment procedure, but the defendant opposed that approach.

The court held it was unreasonable for the defendant to resist discovery and then seek costs on the basis that the motion was improperly pursued.

Costs of the motion were therefore reserved to the trial judge.

Following a judgment in favour of the applicant in a commercial lease dispute involving approximately $19,000, the court determined the appropriate costs award.

The applicant sought $14,424.02 in partial indemnity costs based on 39.8 hours of legal work.

Although the court accepted the time spent and hourly rate as reasonable, it considered the proportionality of costs relative to the modest amount in dispute under Rule 57.01 of the Rules of Civil Procedure.

Taking into account the applicant’s settlement efforts and the absence of settlement offers or cost submissions from the respondents, the court exercised discretion to reduce the amount claimed and fixed costs at $12,000 inclusive of fees, disbursements, and HST.

The defendants brought a motion seeking to compel the plaintiff insured to attend for an examination under oath or alternatively an examination for discovery regarding the scope and quantum of damages arising from a flood loss claim under a property insurance policy.

The plaintiff argued that because the insurer had invoked the appraisal process under s. 128 of the Insurance Act, issues of quantum were exclusively within that process and outside the court’s jurisdiction.

The court rejected that position, holding that the statutory right to examine the insured under oath was not displaced by the election to proceed through appraisal and that the court retained jurisdiction to make procedural orders facilitating the statutory scheme.

The court also found the plaintiff’s proof of loss materially deficient and concluded that disclosure regarding damages was necessary.

A separate motion by the defendants to quash a summons requiring their appointed appraiser, who had since become counsel of record, to be examined was granted as the proposed examination constituted an unnecessary fishing expedition lacking evidentiary relevance to the pending motion.

A commercial tenant sought a determination that it was not liable under a net‑net lease for its proportionate share of the cost of completely repaving a parking lot and for the cost of replacing a damaged vehicle door.

The landlord argued the tenant was responsible for common area maintenance and repair expenses.

The court held that full replacement of a 19–20‑year‑old parking lot constituted a capital replacement caused by reasonable wear and tear, not “maintenance” or “repair” contemplated by the lease.

The court also preferred the tenant’s evidence that the door damage pre‑dated the tenancy.

The tenant was therefore not liable for the repaving cost, the door replacement cost, or bailiff fees relating to a dispute about last month’s rent.

The plaintiff bank brought a motion for summary judgment seeking recovery of a mortgage deficiency following a power of sale and dismissal of the defendant’s counterclaim.

The defendant alleged she had been subjected to undue influence by a third party and that both the bank’s representative and the lawyer acting jointly for the lender and borrower knew of the arrangement and of a prior impersonation fraud involving her identity.

The court found that the record raised serious credibility issues and factual disputes regarding undue influence, potential misrepresentation, and the conduct of the joint solicitor.

Applying the summary judgment principles from Combined Air Mechanical Services Inc. v. Flesch, the court held that a full appreciation of the evidence required a trial.

The motion for summary judgment was therefore dismissed.

Following a successful application discharging two mortgages, the applicants sought substantial indemnity costs totalling over $22,000.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and acknowledged that the applicants had succeeded on the merits.

However, the court found the matter was not complex and noted that the applicants had effectively avoided repayment of a valid debt through the expiration of the limitation period under the Real Property Limitations Act.

The court also considered the late filing of the applicants’ costs submissions.

In the circumstances, the court concluded the case was not appropriate for a costs award.

The applicants sought an order discharging two registered charges on real property, including a fourth mortgage granted to the respondent corporations.

No payments had been made on the mortgage since 1991, and there had been no written acknowledgment of the debt.

The court held that the Real Property Limitations Act governed the limitation period for enforcing mortgage debt rather than the Limitations Act, 2002.

Because more than ten years had elapsed without payment or a signed written acknowledgment restarting the limitation period, recovery on the mortgage was statute-barred.

The court ordered the discharge of the mortgages from title.

Following a family law trial in which the applicant’s claim for spousal support was dismissed, the successful party sought costs.

The court applied Rule 24 of the Family Law Rules, which creates a presumption that the successful party is entitled to costs and requires consideration of settlement offers and party conduct.

The respondent had made an offer to settle well in advance of trial that resulted in an outcome as favourable or more favourable than the trial result.

The court held that this entitled the successful party to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed after reviewing the reasonableness of counsel’s hourly rates, time spent, and disbursements.

The applicants sought certiorari to quash a preliminary inquiry committal for first degree murder arising from a fatal beating that left the victim incapacitated on railway tracks where he was subsequently struck by a train.

They argued the evidence supported, at most, manslaughter or second degree murder.

The court held that the preliminary inquiry judge correctly applied the test for committal and that there was some evidence capable of supporting each essential element of first degree murder.

Evidence existed from which a jury could infer intent to cause bodily harm likely to cause death and recklessness, as well as planning and deliberation in leaving the victim incapacitated on the tracks.

The evidence could also support constructive first degree murder based on unlawful confinement.

In a divorce proceeding, the applicant sought spousal support after voluntarily leaving two insurance brokerage jobs and later relying on social assistance.

The court assessed entitlement under s.15.2 of the Divorce Act and examined evidence regarding employability, credibility, financial circumstances, and contributions during the marriage.

The court found the applicant had voluntarily left her employment without medical justification and had made no meaningful efforts to obtain further work.

The court also imputed income based on her prior earnings and considered the respondent’s continued servicing of substantial joint debts after the applicant’s bankruptcy.

The court concluded the respondent’s financial obligations and payments already exceeded any potential spousal support entitlement and dismissed the claim.