Donald J. Gordon

Following the dismissal of the appellant's appeal, the court received written submissions on costs.

The parties presented correspondence indicating their agreement on a costs award of $500 to reimburse the self-represented respondent for her out-of-pocket expenses.

The court found the agreed amount reasonable and ordered the appellant to pay $500 in costs.

Following the dismissal of the appellant's appeal, the parties provided written submissions on costs.

The parties agreed to a costs award of $500 to reimburse the respondent for out-of-pocket expenses.

The court approved the joint request and ordered the appellant to pay $500 in costs.

The appellant moving company appealed a Small Claims Court judgment awarding the respondent $22,419.00 in damages for retaining her personal property.

The dispute arose when the appellant demanded $889.88 for a move the respondent understood to be a fixed price of $500.00.

The Divisional Court dismissed the appeal, finding no overriding and palpable error in the trial judge's conclusions that a fixed price contract existed, the damage award was appropriate, and there was no bias shown by the trial judge.

The appellant moving company appealed a Small Claims Court judgment awarding the respondent $22,419.00 in damages for retaining her personal property.

The dispute arose when the appellant demanded $889.88 instead of the agreed $500.00 for a move, and subsequently placed the respondent's property in storage when she refused to pay the higher amount.

The Superior Court of Justice dismissed the appeal, finding no overriding and palpable error in the trial judge's conclusions that there was a fixed price contract and that the damage award was appropriate.

The court also rejected the appellant's claim of judicial bias.

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.

The appellant municipality appealed a Small Claims Court judgment awarding a former employee payment for accumulated sick leave credits following retirement.

The employee had signed a severance agreement and release but later claimed entitlement under a municipal policy manual providing payment for a portion of accumulated sick leave upon termination.

The appeal raised issues regarding interpretation of the employer’s policy manual, whether the signed release barred the claim, and whether the claim was statute‑barred under the Limitations Act.

The court held that the trial judge’s interpretation that the policy applied to the employee was open to him, that the release did not bar the claim because retiree benefits were preserved under the severance agreement, and that the limitation period began upon retirement.

Finding no palpable and overriding error, the appeal was dismissed.

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

The appellant argued the Tribunal erred in its findings regarding his medication dosage for depression and misapplied the law by effectively requiring his impairment to be continuous rather than recurrent.

The Divisional Court dismissed the appeal, finding the Tribunal's factual conclusions were supported by the appellant's own testimony and that it correctly applied the statutory definition of disability.

The tenant appealed a decision of the Landlord and Tenant Board evicting him on the basis that the landlords required the basement unit for their daughter's use.

The tenant argued the Board erred in law by accepting an affidavit from the landlord on behalf of the 15-year-old daughter, failing to determine good faith, and ignoring the tenant's disabilities and the landlords' alleged breaches.

The Divisional Court dismissed the appeal, finding the affidavit acceptable given the daughter's age and concluding the Board had reasonably considered all other matters.

The corporate defendant appealed an order striking its statement of defence for failing to comply with an interlocutory order requiring it to retain new counsel or obtain leave to be represented by a non-lawyer.

The Divisional Court dismissed the appeal, finding the motion judge made no error in concluding the defendant's recalcitrance and failure to comply with the clear terms of the order warranted the severe penalty of striking its pleadings.

The appellants appealed an order requiring the individual appellant to pay the respondent $22,253.23 pursuant to a consent judgment based on minutes of settlement.

The appellants argued the motion judge failed to consider the factual matrix surrounding the settlement and misapplied section 30 of the OBCA.

The Divisional Court dismissed the appeal, finding that section 30 was not contravened because the corporate defendant was not ordered to pay for the shares, and that the clear terms of the consent judgment did not require reference to the factual matrix.

Following dismissal of a motion for interim injunctive relief, the court addressed costs.

The respondents sought partial indemnity costs and the applicant did not challenge the amounts claimed or the reasonableness of the time spent and hourly rates.

The applicant argued that costs should be in the cause, determined by the judge hearing the ultimate application, or that no costs should be ordered.

Applying Rule 57.03 of the Rules of Civil Procedure, the court held that costs of the motion should be fixed absent a more just order and found no basis to defer or decline a costs award.

Partial indemnity costs were awarded to each respondent.

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.

The applicant sought an interim injunction and relief from forfeiture arising from the cancellation of billboard licence agreements on railway lands.

The respondents terminated the licences and demanded removal of approximately 240 billboard structures and payment of alleged rental arrears.

The court applied the three‑part test for interlocutory injunctions and found that although a serious issue existed regarding the parties’ conduct and contractual interpretation, the applicant failed to establish irreparable harm because any loss could be compensated by damages.

The balance of convenience did not favour either party.

Interim equitable relief was therefore inappropriate in what was fundamentally a monetary dispute.

Following the breakdown of a common-law relationship, the court determined issues relating to child support for a child of the relationship.

The central issue was the income of a self‑employed electrician operating an unprofitable business and whether income should be imputed under s. 19 of the Federal Child Support Guidelines for intentional underemployment.

Applying the principles from Drygala v. Panli and Riel v. Holland, the court held that a support payor cannot pursue unrealistic or unproductive career aspirations to the detriment of child support obligations.

Income was imputed beginning in 2010 at a level consistent with the payor’s earning capacity as an employed electrician.

Retroactive child support arrears were ordered and ongoing support set based on the imputed income, with proportional sharing of future section 7 expenses.

The accused applied to exclude evidence of a handgun, magazine, and balaclava found in the basement bulkhead of his mother's residence during a police search for his brother, a parole violator.

The police obtained verbal consent from the mother to search the home.

The accused argued his section 8 Charter rights were violated as he had exclusive use of the basement and did not consent.

The court found the mother had the authority to consent to the search of the entire residence, including the common areas of the basement, and the accused had no expectation of privacy in the bulkhead.

The application was dismissed and the evidence was ruled admissible.

In a dangerous offender rehearing following appellate intervention, the court addressed whether a long term offender designation and supervision order could adequately control community risk under the Criminal Code.

The responding party conceded the statutory dangerous offender criteria, leaving the residual discretion analysis focused on realistic risk management, treatment compliance, and evidentiary reliability rather than optimism or speculation.

The court found persistent non-participation in treatment, conditional commitment to medication, entrenched institutional history, and expert evidence indicating a continuing high risk of sexual recidivism absent intensive custodial management.

The court concluded that community-based controls, including long term supervision, could not reduce risk to an acceptable level at the time of decision.

A dangerous offender designation with indeterminate detention was therefore imposed.

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.