T. Walker

The applicants were successful in their application for the partition and sale of an investment property.

They sought costs on a partial or full indemnity basis.

The court reviewed the costs claimed, noted duplication and excessive hours, and reduced the fees by 30%.

The respondents were ordered to pay costs of $30,000 on a partial indemnity basis.

During a civil trial, the plaintiffs sought to cross-examine a defence witness on unproven fraud charges to impeach his credibility, after the witness denied having a criminal record in chief.

The court denied the request, holding that under the bad character exclusionary rule, unproven allegations against a non-party witness have high prejudicial effect and extremely low probative value.

The plaintiffs brought a motion during trial under Rule 53.08 of the Rules of Civil Procedure for leave to introduce previously undisclosed documents to impeach a defence witness.

The trial had been adjourned for several months due to illness, meaning the defendants had the documents since January 2022 and cross-examination had not yet commenced.

The court granted the motion, finding that while the explanation for late disclosure was weak, the lengthy adjournment cured any prejudice or ambush, and the documents could be used solely for impeachment purposes.

The moving party brought an urgent motion to set aside a default judgment and discharge a writ of seizure and sale registered against her property.

The motion was brought during the COVID-19 suspension of Small Claims Court operations, as the property sale was scheduled to close immediately.

The Superior Court exercised its inherent jurisdiction to lift the writ on the condition that sufficient funds be held in trust to protect the judgment, while adjourning the motion to set aside the default judgment to the Small Claims Court once operations resume.

The respondent was successful on an application involving complex commercial tenancy issues and sought partial indemnity costs of $48,846.92.

The applicants argued for a reduced amount of $27,000, relying on the principle that costs should be fair and reasonable for the unsuccessful party to pay.

The court reduced the respondent's hourly rates by approximately 15 percent but found the time expended to be reasonable.

Applying the principles from Boucher and Rule 57.01(1), the court fixed costs payable by the applicants to the respondent at $42,047.70, inclusive of disbursements and HST.

The applicants, who operated a wellness centre as subtenants, sought a declaration that an assignment of the head lease from the tenant to them was valid and binding on the landlord.

Alternatively, they sought relief from forfeiture under the Commercial Tenancies Act and the Courts of Justice Act.

The court dismissed the application, finding that the assignment was invalid because the contractual precondition of obtaining the landlord's consent was never met.

Furthermore, the court held that the applicants were not entitled to relief from forfeiture because the tenant had voluntarily abandoned the head lease, meaning the landlord was not proceeding to enforce a right of re-entry or forfeiture.

The moving party sought a declaration that the responding party was in breach of contract and, alternatively, an injunction restraining direct contractual and payment arrangements with member bands.

The court found there was no valid 2015 contract or memorandum of agreement because the draft contract presented in December 2014 was withdrawn on April 29, 2015 following a threatening and disturbing email that marked a breakdown in the parties' relationship.

Applying the interlocutory injunction test, the court held there was no serious issue for trial arising from the alleged 2015 contract, the alleged harm was speculative and therefore not irreparable, and the balance of convenience favoured the responding party.

The motion was dismissed.

The Baker defendants brought a motion to set aside a noting in default against them, and Sage Electric Limited brought a cross-motion for default judgment.

The Baker defendants had been noted in default after failing to comply with an order removing their former counsel of record.

The court found that the order removing counsel was irregular because it substituted the mandatory word 'shall' for the permissive word 'may' found in Rule 15.04, improperly removing the court's discretion.

The court set aside the noting in default and dismissed Sage's cross-motion for default judgment as premature.

Following a criminal trial in which the accused was convicted of one count of money laundering and acquitted of other fraud-related charges, the accused brought a motion prior to sentencing seeking to reopen the defence case and introduce additional medical evidence.

The proposed evidence concerned alleged cognitive effects of the medication Tramacet in combination with an ADHD diagnosis, which the accused argued may have affected his judgment at the time of the offences.

Applying the test for reopening a case after adjudication from Kowall and subsequent appellate authorities, the court held that the evidence could have been adduced at trial with reasonable diligence and that the accused’s assertions about medication side effects lacked credibility in light of contemporaneous medical records.

The court also found the application was effectively an attempt to reverse a tactical defence decision made at trial.

The motion to reopen the trial and admit fresh evidence was dismissed.