Donald J. Gordon

The appellant appealed an urgent motion order requiring him to return his three children to their primary residence with the respondent and to pay $3,000 in costs.

The Divisional Court found the appeal on the merits to be moot, as the appellant had already complied with the order to return the children.

The court declined to exercise its discretion to hear the moot appeal.

Leave to appeal the costs order was denied, as the motion judge's award of full indemnity costs was reasonable and within her discretion.

The appeal was dismissed.

The respondent father sought costs following his partially successful motion to regularize access to his 9-year-old child.

The applicant mother had opposed the motion, arguing that increased parenting time should be left to the child's request, a position the court found unreasonable.

Both parties sought costs.

The court rejected the mother's request and awarded the father $1,000 in costs, noting his partial success and the high-conflict history of the case.

Following a successful motion for access to a child, the respondent sought costs of $11,723.95 on a substantial indemnity basis.

The applicant suggested a range of $4,000 to $5,500.

The court found the respondent's claimed hours to be unreasonable and awarded costs of $6,780.00 inclusive of HST on a substantial indemnity basis.

The applicant, the surviving spouse and residuary beneficiary of the deceased's estate, applied for the return of $125,000 transferred by the deceased to her son and daughter-in-law shortly before her death.

The court found that the $35,000 cheque to the daughter-in-law was a valid gift, as hearsay evidence of the deceased's intention was admissible and corroborated, rebutting the presumptions of resulting trust and undue influence.

However, the $90,000 cheque to the son was not proven to be a gift, as the son's evidence lacked corroboration and contained inconsistencies.

The son was ordered to return the $90,000 to the estate.

In a child protection proceeding, the respondent mother brought a motion for DNA testing to determine the paternity of her eight-year-old child.

The mother alleged that another man, rather than the respondent father who had raised the child, might be the biological father.

The court dismissed the motion, finding that the mother failed to meet the evidentiary onus, the alleged biological father did not meet the statutory definition of a parent under the Child, Youth and Family Services Act, and ordering a DNA test would not be in the child's best interests.

The respondent father brought a motion for access to his child after the applicant mother unilaterally terminated his regular access in January 2020, alleging violence and abuse.

The court found the mother's allegations lacked independent evidentiary support and that her termination of access was improper and vindictive.

Applying the best interests of the child test, the court granted a temporary order for graduated access, beginning with alternate Sundays and progressing to alternate weekends, along with weekly telephone access.

Following the dismissal of the defendants' motion for summary judgment, the court determined the costs of the motion.

The plaintiffs sought $21,000, while the defendants proposed $4,500.

The court found that costs should be payable forthwith rather than deferred to the trial judge.

Applying principles of proportionality under the simplified procedure and discounting time spent on trial preparation, the court awarded the plaintiffs $7,500 in costs on a partial indemnity basis.

The appellants appealed an order directing the sale of a jointly owned property rather than its partition.

Following the commencement of the appeal, the appellants sold their interest in the property to the respondent for $3,900,000.

The Divisional Court dismissed the appeal as moot, declining to exercise its discretion to hear the case because the issues raised were not elusive of review and did not warrant the expenditure of judicial resources.

The appellants appealed the Ontario Securities Commission's findings that they engaged in fraudulent conduct in connection with three distributions of securities and the resulting sanctions.

The Divisional Court applied the appellate standard of review from Vavilov, finding no palpable and overriding errors of fact, no errors of mixed fact and law, and no denial of procedural fairness.

The Commission's reasons were adequate and the sanctions, including permanent bans, administrative penalties, and disgorgement orders, were reasonable and supported by the evidence.

The appeal was dismissed.

The court issued a supplementary endorsement to its October 25, 2019 trial decision (2019 ONSC 6096) to resolve three outstanding disagreements regarding a parenting schedule: mother's mid-week parenting time, Christmas arrangements, and treatment of school strike days.

The court agreed with the mother's proposals for flexible mid-week parenting time based on her class schedule and for alternating Christmas Eve/Day to maintain sibling bonds.

However, the court rejected the mother's request to treat strike days like professional development days due to inconsistency and short notice.

The respondent, Barry Lee Charpentier, was charged with fraud over $5,000.

The Crown alleged a scheme where Charpentier, as Vice-President of Construction for E & E Seegmiller Limited, colluded with a sub-contractor (Chym Engineering Limited) to inflate invoices, with half of the excess funds being paid to a company owned by Charpentier's former spouse.

Charpentier denied fraud, claiming the payments were compensation agreed upon with Tim Seegmiller due to unfulfilled employment contract terms and his involvement in Seegmiller's alleged bid-rigging and other unethical activities.

The court found that the Crown failed to prove the identity of the victim (E & E Seegmiller Limited as a legal entity), deprivation, and mens rea beyond a reasonable doubt, largely due to the absence of crucial corporate documents and the testimony of Tim Seegmiller.

Consequently, Charpentier was found not guilty.

The defendants brought a motion for summary judgment to dismiss claims by Albair William Faltas and Royal Arts Pharmaceutical Inc. Mr. Faltas's claim was challenged on the basis that he was an excluded driver and the vehicle was "operated" while uninsured.

Royal Arts Pharmaceutical Inc.'s claim was an "action per quod servitium amisit" for loss of services.

The court dismissed the defendants' motion, finding genuine issues requiring a trial regarding the interpretation of "operate" under the Compulsory Automobile Insurance Act when a vehicle is inoperable, and affirming that per quod claims remain a valid cause of action in Ontario.

The applicant father brought an urgent motion to prohibit the respondent mother from relocating with their two-year-old child from Simcoe to Norwich prior to a case conference.

The parties had separated and were disputing parenting time, with the father seeking equal shared parenting.

The court found the proposed move premature and lacking urgency, noting that the status quo and competing custody claims needed to be determined on a complete evidentiary record.

The motion was granted, and the mother was prohibited from moving the child pending further order.

The plaintiffs, a renovation company and its owner, sued the defendant homeowner for an unpaid balance on a renovation contract.

The initial fixed-price contract was later superseded by an oral agreement during a November 2017 meeting due to project delays and disputes.

The court found the plaintiffs' initial estimate and project management lacked diligence, and their claims for extra work were largely unsubstantiated.

However, the court determined that a new oral agreement was reached for a total contract price of $90,000.00, inclusive of labour, material, and HST.

The defendant had paid $65,129.60.

Judgment was awarded to the plaintiff Kyle O’Brien for the remaining balance.

The Crown appealed the respondent's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration over 80mg.

The trial judge had excluded the breathalyzer readings under s. 24(2) of the Charter after finding a breach of the respondent's s. 10(b) right to counsel, as police failed to provide him with a lawyer's directory when he could not reach his counsel of choice.

The Superior Court of Justice found no error in the trial judge's application of the law or the Grant framework and dismissed the appeal.

The parties separated in 2014 and have a 6-year-old child.

The child has been subjected to multiple parenting regimes, including periods where each parent unilaterally withheld the child from the other.

The mother previously made an unfounded sexual abuse allegation against the father.

The father sought sole custody, while the mother sought joint custody with primary residence.

The court found both parents fit but noted significant communication issues.

The court awarded joint custody, with primary residence to the father and final decision-making authority to the father if the parties cannot agree.

The court denied both parties' claims for retroactive and prospective child support, noting the father's modest income and the mother's status as a student.

The applicant unions sought judicial review of a Pay Equity Hearings Tribunal decision regarding the maintenance of pay equity in predominantly female workplaces.

The Tribunal had ruled that the Pay Equity Act did not require employers to use the proxy comparison method on an ongoing basis to maintain pay equity.

The Divisional Court found that while the Act itself does not violate section 15 of the Charter, the Tribunal's interpretation was unreasonable because it failed to consider Charter values.

The Court held that a proportionate balancing of Charter equality rights and the Act's statutory mandate requires that women in predominantly female workplaces have continued access to male comparators through the proxy method to maintain pay equity.

Following a 30-day trial regarding custody, access, and support, the applicant father sought costs capped at $30,000 pursuant to a partial settlement agreement.

The court found the costs request premature because the remaining outstanding issues, specifically the mother's access review pending a psychiatric assessment, had not been fully determined.

The determination of costs liability was deferred until the completion of the access review.

The appellant appealed a trial judge's decision ordering no costs payable by either party following a successful Motion to Change.

The appellant argued he was entitled to costs based on his success and two offers to settle.

The Divisional Court dismissed the appeal, finding the trial judge correctly determined that the presumption of costs was outweighed by the undue hardship an adverse costs award would cause the respondent and the child in her care.

The court held the trial judge's exercise of discretion was entitled to deference.

The plaintiff, an Indian Residential School survivor, sued his former lawyers (the Wallbridge defendants) for negligence.

The negligence claim arose after the defendants initially failed to secure him compensation through an IAP claim for sexual abuse, causing him significant psychological harm.

The plaintiff later succeeded in obtaining compensation with new counsel.

The defendants moved to dismiss the negligence action as an abuse of process, arguing it was barred by the 2006 Indian Residential Schools Settlement Agreement (IRSSA) Approval Order.

The court dismissed the motion, holding that the release provisions in the Approval Order did not encompass causes of action that arose after its effective date, nor could claims of solicitor's negligence in the prosecution of an IAP claim have been within the contemplation of the parties to the IRSSA.