Susan E. Healey

Following competing disclosure motions in a family law proceeding, the court addressed the issue of costs.

The applicant had obtained extensive disclosure orders while the respondent achieved minimal success and had withdrawn the majority of her disclosure requests shortly before the hearing.

The court found that the respondent’s pleadings and expansive initial disclosure requests had significantly increased the costs of the motion and that her contempt allegations against the applicant were unsuccessful.

Applying Rule 24 of the Family Law Rules and relevant Ontario jurisprudence, the court determined that substantial indemnity costs were appropriate despite the respondent’s claim of inability to pay.

Costs of $21,000 inclusive of HST were ordered payable by the respondent within 30 days.

The appellant appealed convictions for two counts of assault and one count of mischief under $5,000 following a judge-alone trial.

He argued the verdict was unreasonable because the trial judge failed to resolve material inconsistencies among Crown witnesses and improperly assessed credibility.

He further contended that the trial judge failed to apply an adequate Vetrovec warning regarding the complainant, who had a history of substance abuse and criminal conduct.

The court held that credibility findings are owed deference and that the trial judge reasonably assessed the evidence and addressed inconsistencies.

The court also found that the Vetrovec caution is discretionary and that the trial judge sufficiently considered reliability concerns and corroborating evidence.

The applicant brought a motion for temporary spousal support, disclosure of the respondent's medical records, and a restraining order following a nine-year marriage.

The court dismissed the claim for spousal support, finding the applicant was economically self-sufficient and not disadvantaged by the marriage.

The request for 20 years of the respondent's medical records to prove he transmitted Herpes II was dismissed as overly invasive, lacking expert evidentiary foundation, and moot since the divorce claim was severed.

The request for a restraining order was also dismissed as the applicant failed to demonstrate reasonable grounds to fear for her safety.

The parties brought competing motions for disclosure in a family law property dispute arising from cohabitation.

The respondent sought declarations of disclosure non-compliance and extensive additional production, while the applicant sought disclosure relating to the respondent’s financial affairs and property claims.

The court dismissed the respondent’s primary request concerning alleged failure to disclose a third-party lawyer’s file and denied most of her additional requests for disclosure.

Extensive disclosure was ordered from the respondent concerning property ownership, financial records, immigration files, business income, and other matters relevant to her broad claims.

Limited disclosure was ordered from the applicant, and the remaining relief in the motions was dismissed.

Following summary judgment dismissing two civil actions related to a proposed wind project, the successful defendants sought costs on a partial indemnity basis under Rule 57.01 of the Rules of Civil Procedure.

The plaintiffs argued that no costs should be awarded due to alleged novelty of the legal issues, broader public importance, assistance to future litigants, alleged reliance on unsworn materials, and the plaintiffs’ financial hardship.

The court rejected these submissions, holding that the claims were premature and unsupported by the evidentiary record, and that none of the factors justified departing from the usual rule that costs follow the event.

The court emphasized that unsuccessful litigants cannot avoid costs merely because their claims may generate guidance for future cases.

Costs were awarded as claimed by the defendants.

During a property dispute trial, the possessory claimant brought a mid‑trial motion seeking production of email communications and notes exchanged between the objector’s counsel and the objector’s expert surveyor.

The court found that the communications were relevant to assessing whether the expert had abandoned the role of an independent expert and instead acted as an advocate for the retaining party.

Claims of solicitor‑client privilege, litigation privilege, and the lawyer’s work product doctrine were rejected for most communications because the materials were probative of expert bias and formed part of the factual foundation for the expert’s opinions.

The court held that exposing potential expert bias justified disclosure notwithstanding privilege claims.

The motion was granted and the communications were admitted into evidence on a voir dire.

The applicant brought an application under s. 490(9) of the Criminal Code seeking the return of a vehicle seized by police and detained pursuant to a detention order pending the completion of criminal proceedings.

The vehicle had been seized as offence-related property in connection with charges involving production and trafficking of marihuana under the Controlled Drugs and Substances Act.

The court held that the detention order remained valid and that the vehicle could be required in future forfeiture proceedings under s. 16 of the Controlled Drugs and Substances Act if a conviction were obtained.

Because the detention period had not expired and the applicant failed to establish that the property would not be required for an ongoing or potential proceeding, the statutory test under s. 490(9) was not met.

The application for return of the vehicle was therefore dismissed.

The defendant municipality moved to discharge a certificate of pending litigation registered by the plaintiff developer in an action seeking specific performance of a preliminary agreement for redevelopment and sale of municipal lands.

The court considered whether the plaintiff had a reasonable claim to an interest in land under s.103(6) of the Courts of Justice Act.

The court held that the preliminary agreement was not a binding contract because essential terms remained unsettled and the transaction depended on further agreements and negotiations, including participation by a third-party development partner that had withdrawn.

As the agreement was incapable of specific performance and the plaintiff therefore had no reasonable claim to an interest in land, the certificate of pending litigation was discharged.

In a new trial ordered following a successful appeal concerning a possessory claim and an appeal under the Land Titles Act, the objector sought to read portions of the claimant’s prior cross‑examination transcript from the original trial into evidence.

The claimant objected on the basis that prior procedural orders required lay witnesses to testify viva voce and did not authorize the use of her previous testimony.

The court held that the Rules of Civil Procedure governed the proceeding rather than the evidentiary flexibility permitted under the Land Titles Act or the Statutory Powers Procedure Act.

The proposed transcript excerpts could only be used for impeachment and should have been put to the witness during cross‑examination in accordance with the rule in Browne v. Dunn and the Ontario Evidence Act.

As the statutory and common‑law requirements for admitting such evidence were not satisfied, the motion to read in the transcript evidence was dismissed.

The applicant sought to set aside or vary a separation agreement executed in 2006, along with claims for spousal support and equalization.

The court determined the parties separated on February 28, 2006 and found no duress, non‑disclosure, or inequality of bargaining power in the formation of the agreement.

However, both parties mistakenly believed the husband’s OMERS pension had no divisible value at separation, resulting in a significant imbalance contrary to the statutory equalization scheme under the Family Law Act.

Applying s. 56(4) and the principles from LeVan and Rick v. Brandsema, the court held the agreement was premised on a fundamental mutual mistake and partially set it aside.

The husband was ordered to transfer $80,126.75 from his pension to effect equalization with prejudgment interest, while spousal support was ordered at a nominal amount due to the applicant’s lack of present need.

The respondent brought a motion seeking an adjournment of an application.

During the hearing, counsel for both parties raised objections concerning the admissibility of statements contained in affidavits filed by the parties.

The court noted the requirements under Rule 39.01(5) of the Rules of Civil Procedure governing affidavits on applications, including limits on hearsay, opinion evidence, legal argument, and statements based on information and belief.

The court declined to strike any affidavit paragraphs at this stage and held that the motions judge hearing the application would determine the admissibility or weight of the impugned statements at the hearing.

The application was adjourned and the treatment of affidavit evidence left to the discretion of the motions judge.

Neighbouring landowners brought actions seeking damages and injunctive relief arising from a proposed wind turbine development, alleging negligence, nuisance, trespass, and strict liability based on anticipated noise, health impacts, and property value loss.

The defendants moved for summary judgment dismissing the claims on the basis that the project had not yet received regulatory approval and had not been constructed.

The court held that the claims were premature because the alleged harms were speculative and no actionable tort had yet occurred.

Pure economic loss arising from public concern about a proposed development was not compensable absent proof of tortious conduct.

The plaintiffs also failed to meet the threshold for a quia timet injunction because there was no high probability that the alleged harms would occur given the ongoing regulatory approval process.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration over 80 mg contrary to the Criminal Code.

The trial judge had found breaches of the appellant’s Charter rights under ss. 8 and 9 arising from an unlawful roadside screening demand but admitted the breath test evidence under s. 24(2).

On appeal, the court held that the trial judge erred in the application of the Grant framework by minimizing the seriousness of the police conduct, failing to properly assess the impact of the Charter breaches, and failing to adequately balance the factors governing exclusion of evidence.

The court concluded that the unlawful demand and resulting detention significantly infringed Charter‑protected interests and that the trial judge’s analysis contained legal errors affecting the result.

The appeal was allowed and the conviction quashed.

The appellant appealed a Small Claims Court decision regarding a commercial sublease dispute.

The appellant argued that the trial judge misapprehended evidence concerning its departure from the premises and whether the respondent was estopped from seeking damages due to an alleged agreement with the head lessor.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings that the appellant voluntarily vacated the premises and that there was no evidence of an agreement relieving the appellant of its sublease obligations.

The applicant sought orders for section 7 expenses, equalization, transfer of the matrimonial home, and costs following an uncontested trial where the respondent was noted in default.

The respondent failed to provide financial disclosure and ignored court orders.

The court imputed the respondent's income at $150,000, ordered him to pay 61% of eligible section 7 expenses, and calculated an equalization payment of $412,377.50 owing to the applicant.

To partially satisfy the equalization payment, the court ordered the transfer of the matrimonial home to the applicant.

Full indemnity costs were awarded due to the respondent's unreasonable conduct, and a show cause hearing for contempt was scheduled.

The husband brought a motion for summary judgment to dismiss the wife's claims to set aside their separation agreement and for spousal support and equalization.

The wife alleged the husband failed to provide accurate financial disclosure regarding the value of his business, and that the agreement was signed under duress and without independent legal advice.

The court granted the summary judgment motion, finding no genuine issue for trial.

The court held that the wife, a lawyer who had access to the husband's financial information, chose not to investigate the values provided and could not now rely on alleged non-disclosure to set aside the agreement.

The court also found no evidence of duress or unconscionability, and upheld the spousal support release under the Miglin framework.

Following a prior decision allowing the applicant’s application in full and dismissing the municipality’s counter-application, the court determined the appropriate costs award.

The applicant sought over $55,000 on a full indemnity basis.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the principles governing partial indemnity costs, the court considered the complexity of the issues, extensive affidavit evidence and cross‑examinations, the economic significance of the dispute, and adjustments required for overlapping work, calculation errors, and expert-related disbursements.

The court declined to award full indemnity costs and reduced certain fees and disbursements.

Costs were fixed on a partial indemnity basis in the amount of $38,799.91 payable within 30 days.

During a jury trial concerning entitlement to life insurance proceeds, the court issued a mid‑trial ruling on when a life insurance contract takes effect under s. 180(1) of the Insurance Act.

The dispute concerned whether the policy came into force on its stated effective date or only upon delivery, payment of the first premium, and the absence of any change in insurability.

The court held that ambiguous language in the application’s signature form did not displace the statutory requirements.

The contractual references to an “effective date” related only to the calculation of policy benefits and time periods, not the date the policy came into force.

Accordingly, s. 180(1) governed and the policy would only take effect if there had been no change in insurability between application and delivery.

During a civil trial arising from a motor vehicle collision, the court considered whether an expert accident reconstruction witness could remain in the courtroom during the testimony of the opposing party’s expert despite an existing witness exclusion order under Rule 52.06(1).

The moving party sought permission for the expert to observe the opposing expert’s testimony to assist counsel in cross-examination.

The opposing party argued the testimony involved credibility issues arising from changes between expert reports.

The court held that experts are commonly exempted from exclusion orders because they provide opinion evidence rather than factual testimony, and their presence can assist counsel in understanding and testing expert evidence.

Finding no prejudice and relying on its discretion to vary trial management orders where circumstances change, the court amended the earlier exclusion order to permit experts to hear the testimony of opposing experts.

Following a family law trial involving equalization of net family property, child support, and spousal support, the court considered the appropriate costs order.

The court reviewed the discretion under s.131(1) of the Courts of Justice Act and Rule 24 of the Family Law Rules, including factors such as the parties’ behaviour, settlement efforts, and the complexity of the issues.

Although the trial results were mixed and the respondent achieved greater success overall, the court found she had made insufficient settlement efforts.

The applicant had made several offers to settle but had also contributed to the length of the proceedings by understating his income.

The court concluded that fairness required each party to bear their own costs.