Donald J. Gordon

The applicant sought declarations that a writ of execution obtained by the respondents did not attach to his real property and requested removal of execution restrictions from title.

The respondents brought a responding application asserting that the writs bound the applicant as the true judgment debtor under a foreign judgment enforcement action.

The court found the applicant had never been properly served with the statement of claim underlying the default judgment relied upon by the respondents.

Without valid service, the judgment was a nullity and could not support the writ of execution against the applicant’s land.

The court granted the applicant’s relief and dismissed the respondents’ application.

Following partial minutes of settlement resolving parenting and certain support issues, the court conducted a trial to determine retroactive child support, retroactive and ongoing section 7 expenses, spousal support, property equalization, and entitlement to the child tax benefit.

The court accepted the applicant’s evidence regarding the historical residence of the children and ordered retroactive child support based on the respondent’s imputed income after he voluntarily left his employment.

The court also awarded retroactive section 7 expenses and directed the parties to share future extraordinary expenses equally.

Although entitlement to spousal support was established, no award was made due to the respondent’s child support obligations.

The court further ordered a modest equalization payment and granted a restraining order against the respondent.

The defendants brought a motion seeking an order requiring a statutory third party insurer to defend the underlying motor vehicle accident action on their behalf or, alternatively, on behalf of one defendant.

The insurer had denied coverage based on an alleged breach of policy conditions after the vehicle was driven by a G1 licence holder without the required accompanying licensed passenger.

Applying the flexible approach outlined in Longo v. Maciorowski, the court considered factors including the insurer’s denial of coverage, the absence of estoppel arguments, and the procedural posture of the action.

The court concluded that unresolved factual disputes, including whether the vehicle owner permitted the driver to operate the vehicle alone, involved credibility issues unsuitable for determination on the motion record.

The motion was therefore dismissed.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under s. 253(1)(b) of the Criminal Code.

The appeal challenged both the grounds for the breath demand and the adequacy of the right to counsel advice under s. 10(b) of the Charter.

While the court found sufficient grounds existed for the breath demand based on the officer’s observations and circumstances of the collision, it concluded that the informational component of the right to counsel was not satisfied after the accused twice indicated he did not understand his rights.

The officer failed to make reasonable efforts to ensure comprehension before proceeding.

The resulting Charter breach required exclusion of the breath sample evidence under s. 24(2).

In a supplementary endorsement addressing costs following a motion brought by a court-appointed forensic accountant seeking payment of additional fees, the court considered multiple claims for costs among parties and against the expert.

The motion seeking payment of an additional $288,000 beyond previously authorized funds had been dismissed.

The court reviewed the principles governing costs, including the limited circumstances in which costs may be awarded against non-parties under s.131 of the Courts of Justice Act and the court’s inherent jurisdiction.

The court concluded that the circumstances did not justify a costs award against the court-appointed expert or the Children’s Lawyer.

Claims for costs among the parties were largely rejected, with any potential claims reserved for determination by the trial judge.

Following a successful condominium compliance application under s. 134 of the Condominium Act, 1998, the court addressed costs.

The condominium corporation sought full indemnity costs exceeding $18,000, while the unit owner’s estate sought costs against the corporation after certain eviction-related relief was abandoned at the hearing.

The court held that although condominium corporations are often awarded full indemnity costs in compliance proceedings, the applicant did not achieve complete success due to the late abandonment of significant claims.

The estate was not entitled to costs because it failed to investigate complaints regarding its tenant’s conduct.

Partial indemnity costs were awarded against both respondents jointly and severally.

A court-appointed forensic accountant brought a motion seeking payment of a final invoice for investigative work performed in complex estate and trust litigation following the death of a family patriarch.

The expert had previously estimated that completion of the mandate would cost approximately $100,000 but later submitted a substantially larger final invoice.

The court held that the expert bore the onus of justifying the amount and found the explanation for the dramatic increase unpersuasive.

In the circumstances, the expert was required to abide by the prior representation to the court and the motion for payment of the additional amount was dismissed.

Requests for production of the expert’s working papers were found premature, and a request by other professionals for reimbursement of costs was deferred to the next case management judge.

The defendants brought a motion for summary judgment dismissing an action claiming a 50 percent ownership interest in real property and in a corporation based on an alleged oral joint venture agreement.

The plaintiffs argued that the agreement arose through oral discussions and email communications relating to a real estate acquisition.

The court held that even assuming a joint venture agreement existed, the claim was commenced outside the two‑year limitation period under the Limitations Act, 2002.

Evidence showed the plaintiffs were aware by late 2008 that the alleged agreement was not being honoured.

As the claim was issued in February 2011, it was statute‑barred and the action was dismissed on summary judgment.

Following the dismissal of a motion to dismiss an action on the basis of forum non conveniens, the court determined the appropriate costs award.

The successful party sought $25,000 plus disbursements and HST on a partial indemnity basis, while the opposing party argued that amount was excessive and proposed $15,000 inclusive.

The court found the docketed time claimed exceeded what was necessary for the motion.

Accepting the lower proposal, the court fixed costs at $15,000 inclusive of disbursements and HST.

Following an earlier ruling granting a motion removing the plaintiff’s lawyers of record, the moving defendants sought a costs award.

The motion had involved the issue of whether counsel could continue acting where a former client might become a witness for the opposing party.

The court noted the ruling depended on the likelihood that a particular individual would testify at trial, a matter that remained uncertain.

Given the unusual circumstances and the possibility that the witness might not ultimately be called, the court held it would be inappropriate to fix costs or determine responsibility for them.

Costs were therefore reserved to the trial judge.

The defendant brought a motion to set aside service of the statement of claim and stay the Ontario action on the basis of forum non conveniens, arguing Minnesota was the more appropriate forum.

Parallel proceedings had been commenced earlier in Minnesota where a declaratory judgment had already been granted by default.

Applying the Muscutt factors, the court found most factors neutral, with geography slightly favouring Ontario due to the location of the business operations and the negotiation of the agreements.

Although a Minnesota judgment had been obtained, the court held that first‑to‑file and parallel proceedings were not determinative.

The defendant failed to establish that Minnesota was the clearly more appropriate forum, and the motion was dismissed.

In a pre‑trial application, the Crown sought to admit similar fact evidence against one accused in a prosecution for aggravated sexual assault involving alleged non‑disclosure of HIV‑positive status during sexual encounters.

The proposed evidence included testimony from other individuals alleging similar encounters, statements from a roommate suggesting non‑disclosure practices, and chat log communications from the accused’s computer.

Applying the governing framework for similar fact evidence articulated in R. v. Handy, the court assessed whether the probative value of the evidence outweighed its prejudicial effect.

The court found the proposed evidence inconsistent, partially related to outstanding charges in another jurisdiction, and largely directed to propensity reasoning.

Concluding that its prejudicial impact outweighed its probative value, the court ruled the evidence inadmissible, while noting the ruling could be revisited depending on the evidence at trial.

The moving party sought a stay of payment of the outstanding balance of a costs award pending the outcome of a co‑defendant’s appeal of the underlying trial decision and costs order.

The court considered the test for a stay under the Courts of Justice Act and Rules of Civil Procedure, applying the principles from RJR‑MacDonald v. Canada (Attorney General).

Although the motion raised a serious issue regarding proportional allocation of costs between defendants, the moving party had not appealed the decision and therefore could not rely on the automatic stay provision.

The court found that the moving party failed to establish irreparable harm, as the evidence only expressed concern about potential difficulty recovering funds if the appeal succeeded.

The motion for a stay was dismissed.