Susan J. Woodley

This endorsement addresses the issue of costs following the denial of a Mareva injunction motion brought by the plaintiff.

The injunction, initially granted ex parte, was denied because the plaintiff failed to establish a strong prima facie case and did not make full and frank disclosure.

The defendants, as the successful party, sought costs on a complete indemnity basis.

The court, balancing the parties' conduct, awarded costs to the defendants on a partial indemnity basis, fixing the amount at $12,500.00 plus HST and disbursements.

Steve Williams was charged with sexual assault and procuring his stepdaughter's friend, KC, who was 16-17 years old at the time.

The sexual assault allegation involved a brief touch to KC's vagina.

The procuring charge stemmed from a series of text messages where Williams offered money for sexual services from KC and/or a "friend." Williams claimed the texts were an elaborate "prank." The court found Williams not credible regarding both charges.

While the court accepted KC's testimony about Williams' request to see her vagina, it found reasonable doubt regarding the intentional application of force for the sexual assault charge due to conflicting evidence on touching.

For the procuring charge, the court found Williams had the intent to procure KC but determined that the actus reus (the act itself) was not met because KC never actually offered or provided sexual services, interpreting the relevant section of the Criminal Code to require such an act.

Consequently, Williams was acquitted on both counts.

During a trial regarding a commercial lease dispute, the plaintiff sought to introduce a 'With Prejudice' settlement offer it had previously served on the defendant.

The defendant objected to its admission on the basis of settlement privilege.

The court applied the three-part test for settlement privilege and held that the label 'With Prejudice' does not change the character of a communication made in furtherance of settlement.

The court ruled the offer was privileged and inadmissible under Rule 49.06 of the Rules of Civil Procedure.

This criminal trial concerned three sexual assault charges against J.D., involving his daughter LG, allegedly committed when she was 6-7 years old.

The court assessed the credibility and reliability of the complainant's and the accused's testimony, along with other witnesses.

Despite LG's credible demeanor, the court found significant inconsistencies and inaccuracies in her memory, particularly regarding corroborating details.

The accused's testimony, corroborated by a third-party witness, was found to be credible and reliable.

The Crown failed to prove guilt beyond a reasonable doubt, leading to an acquittal on all counts.

The plaintiff and a defendant mortgagee brought a motion for summary judgment and distribution of sale proceeds paid into court following the sale of two properties by power of sale.

The court found that the defendant owners had engaged in fraudulent conduct, including registering sham mortgages and fraudulently discharging a valid mortgage, to defeat creditors.

The court granted summary judgment, reinstated the fraudulently discharged mortgage, and ordered the distribution of the sale proceeds to the valid mortgagees, including their legal costs on a complete indemnity basis.

The applicant property owner brought an urgent application to declare the respondent a trespasser and obtain an order for vacant possession.

The respondent claimed to have an oral lease agreement and refused to vacate, preventing the applicant from closing a pending sale of the property.

The court found no evidence of any lease agreement or payment of rent, concluding the respondent moved in without authorization.

The court held that the Residential Tenancies Act did not apply, declared the respondent a trespasser, and ordered her to vacate the premises.

This estate litigation involved a dispute between the Estate of William Ronald Parker and his former common-law spouse, Carol Ann Savage, concerning the severance of a joint tenancy of their home.

The Estate sought partition and sale of the property and a priority claim for retail sales tax liability against Ms. Savage.

Ms. Savage counterclaimed, alleging lack of capacity, undue influence, and unjust enrichment.

The court found that Mr. Parker had the capacity to sever the joint tenancy and execute his will, and was not unduly influenced.

The court dismissed Ms. Savage's claim for unjust enrichment, finding she made little contribution to Mr. Parker's care or expenses.

The court ordered the partition and sale of the Broadgreen home, with specific terms for vacant possession, financial assistance to Ms. Savage, and the allocation of costs and liabilities, including Ms. Savage's sole responsibility for the retail sales tax lien.

During a trial concerning an oil spill, the plaintiff sought to admit an expert witness, Michael Flynn, retained by their insurer.

The defendant objected, arguing Flynn did not qualify as a participant expert and his report was non-compliant with Rule 53.03.

The court ruled that Flynn was not a participant expert as he was engaged by a party to the litigation and his opinions were not based on personal observation or participation in the events.

However, the court granted leave under Rule 53.08 to admit his report and allow him to testify as a Rule 53 expert, finding a reasonable explanation for the non-compliance and no prejudice to the defendant.

The court qualified Flynn to provide expert opinion on the origin and cause of the oil spill, Microbial Influenced Corrosion (MIC) generally, and compliance with codes and regulations for heating appliances and fuel suppliers.

He was not permitted to testify on the standard of care applicable to an Oil Burner Technician (OBT), adhering to the "specialist to specialist" rule for such opinions.

The plaintiff by counterclaim discontinued its action against a defendant by counterclaim, who had been named solely because he appeared as a director in government records.

The released defendant sought costs on a substantial indemnity basis.

The court found that while the defendant was entitled to costs for his continued participation, the plaintiff by counterclaim was not entirely at fault for relying on the government records.

Costs were awarded to the released defendant fixed at $8,300 on a partial indemnity basis.

Following a jury trial for a motor vehicle accident where the plaintiff was awarded $677,143, the court determined the costs payable to the successful plaintiff.

The plaintiff sought partial indemnity costs based on reconstructed dockets due to a contingency fee agreement, including costs for a Licence Appeal Tribunal (LAT) hearing regarding statutory accident benefits.

The court awarded $302,974.37 in total costs, allowing only a portion of the LAT hearing fees that constituted trial preparation for the tort action, and deducting certain disbursements as standard office overhead.

This motion concerned the duration of an assignment of future collateral income benefits under s. 267.8(12) of the Insurance Act, following a jury award for income loss.

The defendant insurer sought assignment until the plaintiff reached age 65, while the plaintiff argued for a limitation to 10 years, consistent with the jury's assessment of future income loss.

The court ruled in favour of the plaintiff, limiting the assignment to the 10-year period determined by the jury, emphasizing the legislative intent to prevent double recovery without under-compensating the injured party.

The Landlord (Applicant) sought to terminate a commercial lease, arguing that the tenant's option to renew was void for uncertainty due to missing terms regarding the exercising party, governing terms, and exercise manner.

The Tenant (Respondent) contended the option was clear and enforceable.

The court found that the issue was properly determinable by application and, applying principles of contract interpretation including a holistic reading, consideration of the factual matrix, and the contra proferentem rule, determined that the option to renew was valid and enforceable by the Tenant.

The Landlord's application was dismissed, and the Tenant was granted peaceful occupation under the renewed term.

This is a costs ruling following a successful trial where Benoit Construction Inc. (Benoit) obtained a judgment of $144,950.97 against Hard at Work Inc. (HAW) for breach of contract, and HAW's counterclaim was dismissed.

Benoit sought costs on a complete, substantial, or partial indemnity basis.

The court considered the factors under the Courts of Justice Act and Rules of Civil Procedure, including Benoit's offer to settle and HAW's conduct, which involved acts of bad faith and unfair dealing.

While the conduct was close to warranting complete indemnity, the court ultimately awarded Benoit costs on a substantial indemnity basis for the entire proceeding, adjusted for proportionality and reasonableness, totaling $120,852.01.

This ruling addresses a defendant's motion for leave to call more than three expert witnesses at a jury trial for a motor vehicle accident.

The plaintiff opposed, alleging duplication and disadvantage between the defendant's proposed physiatrist and orthopaedic surgeon.

The court granted leave, finding that the proposed five experts, despite some similar observations in their reports, represented distinct specialties and provided unique perspectives necessary for a full adjudication of damages, particularly in a chronic pain case.

The court found no undue duplication or disadvantage to the plaintiff.

This motion concerned refusals to answer questions on the grounds of solicitor-client privilege in the context of a summary judgment motion.

The Plaintiff argued that the Defendants had impliedly waived privilege by putting their counsel's state of mind in issue through their pleadings and affidavits.

The Defendants submitted that no implied waiver occurred.

The court found that the Defendants did not implicitly waive privilege, as the receipt of legal advice was not material to the defence.

The core issue was whether a third party consented to a transaction, not the legal advice received by the Defendants.

The motion was dismissed with costs fixed at $5,000 payable by the Plaintiff to the Defendant Iris Capital.

The Applicant, a third mortgagee, challenged approximately $200,000 in charges and fees claimed by the Respondent, the first mortgagee, following a power of sale of vacant land.

The Applicant argued the charges were illegal, unenforceable, unsubstantiated, or penalties contrary to the Interest Act.

The court, exercising its power under Rule 14.05(3)(e) of the Rules of Civil Procedure, reviewed each disputed charge, disallowing many for lack of evidence or legal basis, including a three-month interest penalty and unjustified administrative and legal fees.

The court ordered the Respondent to pay $155,983.41 to the Applicant.

Benoit Construction Inc. (Benoit) sought damages for breach of contract against Hard at Work Inc. (HAW) concerning framing work and equipment rental for a luxury residential home.

HAW counterclaimed for alleged deficiencies and costs to complete.

The court found that a verbal agreement existed for HAW to reimburse Benoit for telehandler rental fees.

The court determined that HAW's termination of the contract was unjustified, as their allegations of shoddy workmanship and deficiencies were not proven, and Benoit was denied the opportunity to correct any issues.

HAW's counterclaim for costs to correct and complete was dismissed.

Benoit was awarded outstanding invoice amounts and damages for breach of contract.

During a jury trial for procuring and related offences, the Crown sought leave to introduce portions of the complainant's prior consistent statements during re-examination to rehabilitate her credibility after cross-examination.

The court applied the test from R. v. Murray and denied the request, finding that the complainant had not claimed her prior statements were lies, but rather offered explanations for inconsistencies.

The court held that admitting the statements would violate the general rule against prior consistent statements and cause prejudice to the accused.

The applicant, charged with firearms and domestic violence offences, brought a Charter motion alleging breaches of his s. 8 and s. 10(b) rights during the police investigation and his subsequent arrest.

He argued that police unlawfully tracked his cell phone, viewed his apartment building's video surveillance, conducted a warrantless 'clear and hold' of his apartment, and delayed implementing his right to counsel.

The court dismissed the s. 8 claims, finding no reasonable expectation of privacy in the ping data or common area surveillance, and that exigent circumstances justified the warrantless entry.

The court found a minor s. 10(b) breach regarding a failure to re-read rights for an additional drug charge, but declined to stay proceedings or exclude evidence under s. 24.

The accused was charged with one count of sexual assault following an encounter on his boat.

The accused admitted to the sexual activity but maintained it was consensual.

The court applied the W.(D.) framework to assess credibility and found the accused's evidence to be straightforward and reliable, while noting factual gaps and inconsistencies in the complainant's narrative.

The court concluded the Crown failed to prove beyond a reasonable doubt that the complainant did not consent, resulting in an acquittal.