R. D. Gordon

The appellant tenant appealed a decision of the Landlord and Tenant Board declining to void an eviction order for non-payment of rent.

The Board had found that the tenant failed to pay all arrears, costs, and enforcement fees under the Administration of Justice Act.

The Divisional Court held that the Board erred in law by including enforcement fees in its determination of whether the tenant met the requirements of s. 74(11) of the Residential Tenancies Act.

The appeal was allowed and the matter remitted to the Board for a new hearing.

The applicant tenant sought a declaration that it validly renewed its commercial lease or, alternatively, relief from forfeiture.

The tenant failed to provide written notice of renewal within the time required by the lease.

The court found that while the respondent landlord initially waived strict compliance during negotiations, it validly revoked that waiver by providing reasonable notice and a deadline for compliance.

The tenant failed to make diligent efforts to comply with the new deadline.

Consequently, the court held the tenant did not validly renew the lease and was not entitled to relief from forfeiture.

In a defamation action arising from statements about the handling of Indian Residential Schools Settlement Agreement claims, the plaintiffs brought a motion to strike portions of the statement of defence or, alternatively, for particulars.

The court dismissed the motion to strike due to unexplained delay under Rule 2.02, noting it was brought eight months after pleadings closed.

The alternative request for particulars was also dismissed because the plaintiffs failed to show they were unable to plead their case without them.

The appellant mother appealed a summary judgment order making her youngest child a Crown ward without access.

The child had been apprehended at birth.

A parenting capacity assessment concluded there was a serious risk of neglectful parenting due to the mother's severe intellectual limitations and personality traits, despite her commitment and efforts to improve.

The appeal court found no palpable and overriding error in the motion judge's findings that the child was in need of protection, that supervision was unworkable, and that access would not be meaningful or beneficial to the child.

The appeal was dismissed.

The appellants appealed their convictions for assaulting and resisting peace officers.

The charges arose from an altercation with police who had entered the property to investigate a noise complaint.

The appellants argued the police were unlawfully on the property, breached their section 8 Charter rights, and that the trial judge misapprehended evidence.

The Superior Court of Justice dismissed the appeal, finding the police had an implied licence to enter the property, the appellants lacked a reasonable expectation of privacy, and the trial judge's factual findings were reasonable.

The defendants brought a motion to dismiss the plaintiffs' action for delay.

The action arose from a motor vehicle accident that occurred nearly 18 years prior.

The court found that while the delay was inordinate, it was not inexcusable, as the defendants had consented to or requested many of the adjournments, and the plaintiff had been actively participating in the litigation process.

The motion to dismiss was denied, and the court set a timetable to bring the matter to trial.

The mother brought a motion seeking to relocate the parties' four-year-old child from Cochrane to Thunder Bay to pursue employment as a special constable.

The parties had a joint and shared custody arrangement.

The court applied the factors from Berry v. Berry for mobility cases involving two custodial parents.

The court found that the mother's financial difficulties were somewhat self-imposed and that she had not exhausted her search for employment in Cochrane.

The court concluded that the economic benefits of the move did not outweigh the significant and permanent disruption to the child's relationship with the father.

The motion to relocate the child was dismissed.

The offender was found guilty of touching a person under 16 for a sexual purpose, involving a long-term relationship with a young person in a position of trust.

The court determined a fit sentence was 7 years (84 months) imprisonment.

The court then considered the offender's pre-sentence custody at the Sudbury Jail, which involved frequent lockdowns, overcrowding, mice infestations, and extended segregation.

Applying the principles from Summers and Duncan, the court awarded 1.5:1 credit for time served plus an additional 9 months for harsh conditions, resulting in a total credit of 46.5 months and a net sentence of 37.5 months.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claim for statutory accident benefits.

The plaintiff suffered severe burns when she spilled hot coffee on her lap while receiving it at a drive-through window in her vehicle.

The court applied the purpose and causation tests, finding that using a drive-through is an ordinary use of a vehicle, and that the vehicle's use was a direct cause of the injuries because the plaintiff was seated and restrained by a seatbelt, preventing evasive action.

The defendant's motion was dismissed, and the court concluded the incident met the definition of an accident under the Statutory Accident Benefits Schedule.

In a bifurcated trial of a matrimonial dispute, the court was asked to determine the valuation date.

The respondent argued the parties separated in August 2006 after his extra-marital affair, while the applicant argued they separated on October 31, 2010.

Applying the Oswell factors for living separate and apart under the same roof, the court found that the parties continued to function as a family, maintained joint financial arrangements, and did not take steps consistent with a final separation until 2010.

The court concluded the valuation date was October 31, 2010.

The respondent sought leave to appeal a motion judge's order requiring him to pay $628 per month in child support.

The respondent, who is unemployable due to a childhood brain injury, receives monthly payments from a personal injury settlement fund administered by his mother.

The motion judge imputed an income of $36,000 to the respondent, grossed up to $42,000, effectively treating capital as income.

The court granted leave to appeal, finding good reason to doubt the correctness of the order and noting that the treatment of capital receipts as income for child support purposes is an issue of general importance.

The plaintiff bank brought a motion for summary judgment seeking rectification of two mortgages registered against the defendants' abutting properties to comply with the Planning Act, as well as possession of the properties.

The defendants had defaulted on the loan and entered bankruptcy.

The court found that the parties had a common continuing intention to mortgage both properties as security for the loan, and that the failure to cross-reference the mortgages was a mistake.

The court granted rectification, deemed the notices of sale sufficient, and granted judgment for possession.

The plaintiff's motion to dismiss the defendants' counterclaim was dismissed without prejudice as the counterclaim remained stayed under Rule 11 due to the bankruptcy.

The Crown applied under section 486.2(1) of the Criminal Code for an order allowing two child witnesses to testify via video link from outside the courtroom in a trial for sexual assault and sexual interference.

The defence objected to the use of remote video technology, arguing the court had discretion to order a different accommodation, such as testifying behind a screen.

The court held that under section 486.2(1), the presiding judge has no discretion to alter the requested accommodation unless it would interfere with the proper administration of justice.

Finding no such interference, the court granted the Crown's application with specific conditions to ensure trial efficiency.

The applicant general partner sought a declaration that a third‑party offer to purchase limited partnership units was not bona fide and was a sham designed to trigger right‑of‑first‑refusal provisions in a partnership agreement.

The applicant argued the offer was structured to allow a particular limited partner to obtain sufficient units to gain a veto over extraordinary resolutions requiring 75% approval.

The court considered the legal test for bona fide offers in the context of rights of first refusal, including whether the offer was made in good faith, genuine, and not a sham.

The court held that the offer was a legitimate third‑party offer at a reasonable price and that the evidence did not establish an absence of bona fides.

The application for a declaration was dismissed.

The applicant sought certiorari quashing a preliminary inquiry judge’s decision committing him to stand trial on charges of possession of fentanyl for the purpose of trafficking and possession of proceeds of crime.

The applicant argued that the committal was made in the absence of evidence on an essential element of the offence, namely the purpose of trafficking.

The reviewing court applied the test from R. v. Arcuri and held that the preliminary inquiry judge’s role is limited to determining whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.

Considering the circumstantial evidence collectively, including the drugs found, cash in multiple locations, and a brief vehicle interaction consistent with drug transactions, the court found that a reasonable inference of trafficking could be drawn.

The application for certiorari was dismissed.

The plaintiff was severely injured in a head-on collision after losing control of her vehicle on a snow-covered and slippery municipal road.

The plaintiffs sued the municipality for negligence in its winter road maintenance.

The court found that the road was in a state of non-repair due to a 'refreeze' of brine, which caused the accident.

The municipality failed to meet its own maintenance quality standards by leaving the road untreated for over three hours during a winter storm.

The court held the municipality liable for the agreed damages of $12 million and found no contributory negligence on the part of the plaintiff.

Following the breakdown of a 13‑year common‑law relationship, the applicant sought spousal support and a monetary remedy based on unjust enrichment.

The court found entitlement to spousal support on a non‑compensatory basis under ss. 30 and 33 of the Family Law Act due to economic dependency and hardship following separation.

Applying the Spousal Support Advisory Guidelines, the court awarded retroactive and ongoing support, including a lump‑sum payment reflecting discounted retroactive amounts and ongoing monthly support for a limited duration.

The court also examined the claim for unjust enrichment using the joint family venture framework from Kerr v. Baranow but concluded the distribution of wealth between the parties was not inappropriately disproportionate.

As a result, no property remedy was granted.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

He argued that the roadside screening demand was not made forthwith and that police breached his right to counsel under s. 10(b) of the Charter, that the evidentiary breath samples were not taken as soon as practicable under the Criminal Code, and that deficiencies in breath‑testing procedures undermined the reliability of the results.

The court held the trial judge applied the correct legal tests and made reasonable factual findings regarding the short delay in obtaining an Approved Screening Device, the timing of the breath tests, and the functioning of the approved instrument.

The court found no Charter breach and no evidentiary basis to rebut the statutory presumption of accuracy of the breath readings.

The conviction appeal was dismissed.

The plaintiff brought a motion for summary judgment in a mortgage enforcement action seeking repayment and possession of the mortgaged property following default.

The defendants argued that the parties had reached an oral agreement granting a moratorium on payments and suspending enforcement while the development project progressed.

Applying the summary judgment framework from Hryniak v. Mauldin, the court used its fact‑finding powers to evaluate credibility and draw inferences from the evidentiary record.

The court found no credible evidence establishing a binding forbearance agreement and concluded that the defendants failed to prove any modification to the mortgage terms.

Summary judgment was granted and the plaintiff obtained judgment for the principal, interest, and possession of the property.

A farmer sued his insurance broker alleging negligence for failing to obtain insurance coverage for collapse of a tarp barn due to snow load.

Both parties brought competing motions for summary judgment.

The court held that the broker breached its duty of care by failing to adequately advise the client about coverage and foreseeable risks.

However, the plaintiff failed to prove causation because the evidence did not establish that the collapse was more likely than not caused by snow load rather than other possible causes such as wind, design flaws, or construction defects.

As a result, the plaintiff could not establish that the broker’s breach caused the loss.