T. R. Lofchik

The applicant police officer sought judicial review of a decision by the Ontario Civilian Police Commission (OCPC) upholding his conviction for unnecessary exercise of authority.

The applicant argued that the hearing officer erred by applying the civil standard of proof (balance of probabilities) rather than a higher standard of 'clear and convincing evidence' under s. 84(1) of the Police Services Act.

The Divisional Court dismissed the application, holding that the Supreme Court of Canada's decision in F.H. v. McDougall established that there is only one civil standard of proof, and that police discipline hearings remain civil proceedings governed by the balance of probabilities.

This was a costs endorsement following a successful summary judgment motion in favour of two defendants.

The court held the successful defendants were entitled to costs on a partial indemnity basis, but reduced the amounts claimed for file review, pleadings, document discovery, motion preparation, and certain disbursements.

The court found the claimed hourly rate reasonable while emphasizing that recoverable costs are not determined solely by hours multiplied by rate and must reflect what a reasonable losing party might expect to pay.

Costs were fixed at $22,274.10 inclusive of fees, disbursements, and H.S.T.

The accused brought a Charter application seeking exclusion of evidence seized during the execution of a CDSA search warrant at his business and residence.

Applying the framework for assessing anonymous informer tips, the court held that the tip was not compelling, the source was not known to be credible, and the police corroboration relating to the searched premises was insufficient to establish reasonable grounds.

The court found that the warrant for 1141 Main Street East was invalid and that the search seriously invaded the accused's privacy interests.

Applying the s. 24(2) framework, the court concluded that admission of the seized evidence would bring the administration of justice into disrepute and ordered all evidence from the search excluded.

In this costs decision following a motion to set aside a default judgment, the plaintiff sought costs of the motion and costs thrown away after the judgment was partially set aside as against the individual defendants but left in place against the corporate defendants.

The court held that, although success on the underlying motion was divided, the defendants' deliberate failure to participate in the proceeding necessitated the motion and justified an award of costs to the plaintiff under the principle that the price of a granted indulgence is payment of the opposing party's costs.

Solicitor-client costs were refused because the plaintiff's offer to settle included terms not achieved on the motion.

Costs of the motion were fixed at $27,866.65 inclusive, and costs thrown away were fixed at $18,349.72, payable within 30 days.

The appellant's appeal and two interlocutory motions were dismissed.

The respondent sought costs of $10,000 on a partial indemnity basis, while the self-represented appellant argued for no costs against him and $1,300 in his favour.

The Divisional Court found no reason to depart from the general rule that costs follow the event.

The court awarded the respondent $10,000 in costs, noting the extensive preparation and helpful submissions of respondent's counsel compared to the appellant.

This was a costs ruling following dismissal on summary judgment of the plaintiffs' action against a bank as statute-barred in a mortgage power of sale dispute.

The court rejected the bank's argument that the mortgage terms contractually entitled it to solicitor-client costs for defending the action, and also declined to award full indemnity costs based on the pleadings' serious allegations.

A time-limited offer to settle did not trigger the automatic consequences of Rule 49.10, but remained a relevant factor under Rules 57.01 and 49.13.

Costs were fixed on a partial indemnity basis up to May 21, 2014 and on a substantial indemnity basis thereafter, in the total amount of $33,279.28.

The Children's Aid Society brought a motion for summary judgment seeking an order that the child be made a Crown ward with no access for the purpose of adoption.

The child had been apprehended after suffering severe injuries while in the mother's care, leading to the mother pleading guilty to aggravated assault.

The court found no genuine issue for trial, noting the mother's inability to safely parent and the child's need for permanency.

The motion was granted, and the child was made a Crown ward with no access.

The plaintiff brought a motion to set aside a registrar’s order dismissing the action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual analysis and the four Reid factors governing motions to set aside dismissal orders.

The court found the plaintiff failed to provide an adequate explanation for extensive litigation delay, failed to establish that missing the deadline was inadvertent, and failed to bring the motion promptly after learning of the dismissal.

Although the defendants did not establish significant litigation prejudice, the court emphasized finality, chronic delay, and deficient evidence from the plaintiff.

The motion to set aside the dismissal order was dismissed.

In a child protection status review proceeding under the Child and Family Services Act, the child protection agency brought a motion for summary judgment seeking a final order placing the child in the custody of kinship caregivers pursuant to s. 57.1.

The evidence demonstrated that the child had lived with the kinship caregivers for over two years, had improved academically and behaviourally in their care, and required permanency and stability.

The mother had pleaded guilty to aggravated assault against another child and had failed to engage meaningfully with services, while the father had disengaged from the proceedings and presented no parenting plan.

Applying the summary judgment test and the best interests of the child analysis under the Act, the court concluded there was no genuine issue requiring a trial.

Custody was granted to the kinship caregivers with parental access restricted to supervised visits.

The plaintiffs brought a motion for leave to amend their statement of claim to add their own automobile insurer as a defendant for unidentified and underinsured motorist coverage following a collision in which a previously undisclosed unidentified vehicle may have contributed to the accident.

The insurer argued the claim was statute‑barred because the two‑year limitation period ran from the accident date.

Relying on Court of Appeal authority interpreting the Limitations Act and OPCF 44R coverage, the court held that a claim against an insured’s own insurer is contractual and the limitation period does not begin until a demand for indemnification is made and the insurer fails to respond.

As no such demand had yet been made, the limitation period had not been triggered.

The plaintiffs were granted leave to amend the claim to add the insurer for unidentified and underinsured motorist coverage.

The appellant corporation appealed a decision of the Ministry of Revenue refusing to cancel deferred land transfer tax under s. 3(11) of the Land Transfer Tax Act.

The Ministry argued that registration of a development agreement constituted a conveyance or instrument evidencing the disposition of a beneficial interest in land, thereby triggering the tax.

The court held that the registered development agreement merely referenced the appellant as owner and did not identify the specific transfer of beneficial interest from the affiliated corporation.

As a result, it did not constitute an instrument evidencing the disposition under the statute.

The appeal was allowed and the Minister was directed to vacate the disallowance and return the funds.

The defendants moved to set aside a default judgment obtained after their statement of defence had been struck for failure to deliver an affidavit of documents.

Applying Rule 19.08(2) of the Rules of Civil Procedure and the governing three-part test, the court considered the promptness of the motion, the explanation for the default, and whether the defendants had an arguable defence on the merits.

The court found the defendants acted promptly after learning of the judgment and provided a reasonable explanation for their failure to respond to the motion to strike.

The defendants also advanced arguable defences concerning the execution of mortgage acknowledgements, the scope and validity of personal guarantees, and potential limitation period issues under the Limitations Act, 2002 and the Real Property Limitations Act.

In the interests of justice, the court set aside the noting in default and the default judgment and permitted amendments to the statement of defence.

The defendants brought a motion to set aside a noting in default after failing to deliver a defence within the time required under the Rules of Civil Procedure.

The self‑represented plaintiffs initially opposed the motion and brought a cross‑motion seeking to remove defence counsel from the record but abandoned their opposition during argument.

The court found the defendants had a reasonable explanation for the delay, had consistently indicated an intention to defend, and had an arguable defence on the merits.

The default was set aside and the defendants were granted leave to deliver a statement of defence within ten days.

The plaintiffs’ motion to remove counsel was dismissed and costs of $1,500 plus HST were awarded to the defendants due to inappropriate allegations made in the plaintiffs’ materials.

The defendant successfully sought a dismissal or stay of the main action on the basis that it was improperly constituted, as well as the payment out of court of $110,000.

The court found that the plaintiff was responsible for the wasted time and money subsequent to the setting aside of the default judgment.

Consequently, the court awarded the defendant her costs of the action on a substantial indemnity basis, fixed at $19,662 for fees and $3,757.25 for disbursements.

The plaintiff sued the defendant for injuries sustained while bicycling on a recreational trail.

The defendant moved for summary judgment under s. 4 of the Occupiers' Liability Act, which limits liability to reckless disregard for recreational trails.

The motion judge dismissed the motion, finding s. 4 did not apply or created a rebuttable presumption requiring a trial.

On appeal, the Divisional Court allowed the appeal, holding the motion judge erred in law.

Applying the Hryniak standard, the court found no genuine issue for trial as there was no evidence the defendant acted with reckless disregard.

The appellant tavern appealed a License Appeal Tribunal decision finding it breached several provisions of the Liquor Licence Act and its Regulations, resulting in a 10-day licence suspension.

The charges arose after a group of patrons consumed a massive amount of alcohol in a short period, leading to intoxication, a violent altercation with staff, and a subsequent investigation.

The Divisional Court applied a correctness standard of review.

The court upheld findings that the appellant sold liquor to intoxicated persons, permitted drunkenness, permitted violent conduct, and failed to facilitate an inspection.

However, the court quashed findings that the appellant permitted practices encouraging immoderate consumption, committed a second violation of permitting drunkenness, and obstructed an investigation, finding errors of law in the tribunal's reasoning on those points.

The appeal was allowed in part.

The applicant, a medical resident, sought judicial review of a decision by the university's Senate Appeals Committee that upheld her placement on academic probation due to poor performance and patient safety concerns.

The applicant argued that the committee violated procedural fairness and that its decision was unreasonable.

The Divisional Court dismissed the application, finding that the committee provided a high degree of procedural fairness, cured any minor procedural defects through a de novo hearing, and reached a reasonable decision within its academic expertise.

Following a personal injury trial arising from a municipal sidewalk trip-and-fall, the successful plaintiffs sought costs after recovering damages exceeding their pre-trial settlement offer.

The court considered Rule 49.10 of the Rules of Civil Procedure and rejected the defendant’s argument that the plaintiffs’ offer was not a good faith attempt to settle.

Because the judgment exceeded the offer and the defendant had made no counter-offer, the plaintiffs were entitled to partial indemnity costs up to the date of their offer and substantial indemnity costs thereafter.

However, the court exercised its discretion to reduce the claimed hourly rates and hours as excessive for a relatively non-complex case involving straightforward liability and damages issues.

The court fixed reasonable fees, disbursements, and HST, and also amended the earlier judgment to adjust the start date for prejudgment interest under s. 128 of the Courts of Justice Act.

Following a successful summary judgment motion dismissing the action arising from a motor vehicle accident, the defendant insurer sought costs.

The plaintiff had advanced unsupported allegations of bad faith, misconduct, and incompetence against the insurer and maintained claims for extra-contractual damages without evidentiary support.

The court held that such unfounded allegations justified an award of substantial indemnity costs to discourage speculative litigation.

However, the court limited substantial indemnity costs to the day of the motion hearing and awarded partial indemnity costs for preparation.

Total costs were fixed at $10,582.75 inclusive of fees, disbursements, and HST.

The plaintiff tripped and fell on a municipal sidewalk, sustaining a rotator cuff tear.

She brought an action against the municipality for failing to maintain the sidewalk in a reasonable state of repair.

The court found that a height differential of 3/4 to 1.25 inches existed between sidewalk slabs, constituting a state of non-repair that the municipality failed to identify or repair.

However, the court also found the plaintiff 50% contributorily negligent for failing to pay attention to where she was walking.

Damages were assessed and reduced by 50%, resulting in an award of $107,765 to the plaintiff and $5,000 to her husband under the Family Law Act.