Donald J. Gordon

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 plaintiff corporation sought an adjournment of the defendants’ motion to dismiss the action for failure to comply with interlocutory orders requiring payment of costs and posting of security for costs.

The plaintiff also requested extensions of time and a reduction of the security amount.

The court considered Rules 56.06, 56.07, 57.03, and 60.12 of the Rules of Civil Procedure, emphasizing the balance between enforcing court orders and allowing disputes to be decided on their merits.

Although the plaintiff had failed to comply with prior orders and had only partially raised the required funds, the court found limited evidence supporting a short final extension.

The court granted a final extension of time to post security for costs and pay outstanding costs but refused to reduce the security amount.

The defendants, charged with aggravated sexual assault for allegedly failing to disclose their HIV-positive status before engaging in consensual sexual acts with the complainants, brought a pre-trial application under section 276 of the Criminal Code.

They sought to cross-examine the complainants on their prior sexual activity, including casual and group sex, to challenge their credibility and their assertion that they would not have consented had they known of the defendants' HIV status.

The court granted the application, finding the proposed evidence highly relevant to the issue of whether consent was vitiated by fraud, and concluded its probative value outweighed any potential prejudice to the administration of justice.

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.

The appellant appealed his conviction for driving while disqualified.

He argued that the Crown could not rely on a provincial license suspension to prove disqualification because he had not been informed of the penal consequences of driving while disqualified, as required by section 260(1) of the Criminal Code for court-ordered prohibitions.

The Superior Court of Justice dismissed the appeal, holding that the notice requirements in section 260(1) apply only to court-ordered prohibitions under section 259(5)(a) and do not apply when the Crown proves disqualification via a provincial suspension under section 259(5)(b).

The defendants brought a motion to remove the plaintiff's counsel of record, Steven Gadbois, due to a conflict of interest.

Gadbois had previously represented a key defence witness, Mr. Azevedo, in a related action.

The defendants argued that Gadbois possessed confidential information about Azevedo and might be called as a witness regarding an unsigned document he prepared.

The court applied the test from Macdonald Estate v. Martin and found that Gadbois' duty of loyalty to his former client created a conflict, particularly since he would have to cross-examine Azevedo.

The motion to remove counsel was granted.

In a pre-trial motion for charges of aggravated sexual assault related to HIV non-disclosure, the court assessed the admissibility of the accused's police statement.

The court found several issues with the police conduct, including a missing minute of video recording, improper communication between officers, and failure to provide sufficient information regarding outstanding warrants before the accused waived his right to counsel.

Crucially, police breached a remand warrant by returning the accused to the police station instead of a detention centre.

The court ruled the statement inadmissible, finding the Crown failed to prove voluntariness.

The appellant, a city councillor, appealed a declaration that he contravened the Municipal Conflict of Interest Act by failing to disclose a pecuniary interest in a municipal tax sale.

The appellant had expressed interest in bidding on a property and arranged to view it before formally submitting a bid through his corporation.

He did not declare his interest at council meetings where the property's sale was discussed prior to his bid submission.

The Divisional Court dismissed the appeal, holding that the appellant's pecuniary interest crystallized when he first became interested in purchasing the property, not when he submitted the bid.

The court found the saving provision for inadvertence or error in judgment did not apply and upheld the four-year disqualification from city council.

The appellant farmer appealed a decision of the Fire Safety Commission that upheld an inspection order imposing conditions on open air burning of brush on his property.

The appellant argued the Commission erred in its interpretation of the Fire Protection and Prevention Act by not requiring proof that a fire 'would seriously endanger' health and safety before imposing conditions.

The Divisional Court dismissed the appeal, finding the Commission's interpretation of the Act was correct and its factual findings regarding the necessity of the conditions were reasonable and supported by the evidence.

The appellant wife appealed a trial decision regarding the equalization of net family properties.

The primary issue was whether the trial judge erred in law by failing to deduct a line of credit, secured by a collateral mortgage on the matrimonial home, from the respondent husband's date of marriage assets.

The Divisional Court held that under the Family Law Act and the test in Collier v. Torbar, a debt must be incurred to acquire, maintain, or improve the matrimonial home to be exempt from deduction.

The court adjusted the equalization payment to account for this error, as well as omitted assets including a vehicle and a generator, increasing the payment owed to the appellant to $96,462.41.

The applicant, a pipe fitter, was seriously injured in a gas explosion and commenced a civil action for damages.

The respondents brought a 'right to sue' application before the Workplace Safety and Insurance Appeals Tribunal (WSIAT), which determined the applicant was a worker, not an independent contractor, and thus barred from suing.

The applicant sought judicial review.

The Divisional Court dismissed the application, finding the WSIAT's decision was reasonable, grounded in evidence, and properly applied the legal test for independent contractor status.

The appellant appealed a decision of the Social Benefits Tribunal denying him disability benefits under the Ontario Disability Support Program Act.

The appellant argued the Tribunal ignored evidence, applied the wrong legal test, and provided insufficient reasons.

The Divisional Court dismissed the appeal, finding the Tribunal did not fundamentally misapprehend the evidence, correctly applied the test for a 'person with a disability' as set out in Crane, and provided adequate reasons to permit appellate review.

The applicants sought judicial review of the provincial Minister of Natural Resources' decisions imposing quotas on yellow perch and walleye for their 2007 and 2008 commercial fishing licences.

They argued the statutory framework was an unlawful delegation of federal authority and that the Minister unreasonably fettered his discretion by adopting the Lake Erie Committee's recommendations.

The Divisional Court dismissed the application, finding the delegation lawful under established precedent and concluding the Minister's reliance on the international committee's expertise was reasonable and did not constitute an abdication of responsibility.

The applicants sought judicial review of the Minister of Natural Resources' decisions imposing quotas on yellow perch and walleye for their 2007 and 2008 commercial fishing licences.

They argued the delegation of power to the Minister was unlawful and unconstitutional, and that the Minister unreasonably fettered his discretion by adopting the recommendations of the Lake Erie Committee.

The Divisional Court dismissed the application, finding the delegation lawful under established jurisprudence.

The court also held that the Minister did not abdicate his responsibility and that his reliance on the international committee's expertise and recommendations was reasonable given the shared nature of the Lake Erie fishery.

Following the dismissal of the appellants' appeal in a collection action over a $1,200 invoice, the respondent sought costs on a substantial indemnity scale.

The court noted that the amount involved was minimal and the litigation was unnecessary, as the appellants had no reason to avoid payment.

The court awarded the respondent substantial indemnity costs fixed at $5,000 to avoid penalizing him for attempting to collect on his invoice.

The appellants appealed a Small Claims Court judgment ordering them to pay $3,745 in unpaid accounting fees to the respondent.

The dispute centered on the scope of the respondent's retainer and whether he was authorized to investigate a tax issue discovered during his review of reorganization documents.

The Divisional Court dismissed the appeal, finding that the trial judge correctly accepted the respondent's evidence regarding the scope of the professional retainer and that no substantial wrong or miscarriage of justice occurred.