Robbie D. Gordon

This is a costs decision following a personal injury trial where the jury found the Abitong defendants 5% liable and awarded general damages of $10,000 to the main plaintiff.

After applying the statutory deductible, the plaintiffs received no recovery.

The Abitong defendants sought costs, having made an offer to settle by dismissal without costs.

The court awarded the Abitong defendants $175,000 in all-inclusive costs on a partial indemnity basis.

The court considered factors under Rule 57, including the result achieved, complexity, and proportionality.

It addressed the plaintiffs' objections regarding trial length due to defence counsel's conduct, excessive time claims, high disbursements, and the use of in-house counsel, affirming that costs for salaried counsel should be assessed as if independent outside counsel were retained.

The applicant, A.D., charged with two counts of sexual assault involving two different complainants (SG and MM), applied to sever the counts for separate trials.

The court considered factors including general prejudice to the accused, legal and factual nexus, complexity of evidence, and the use of similar fact evidence.

The court found a significant risk of prejudice if the counts were tried together, particularly due to strong admissions made by the accused regarding MM that would not be admissible against SG.

Despite efficiencies in a single trial, the court determined that the prejudicial effect outweighed the benefits, especially given that separate trials could be accommodated within the existing time slot, mitigating delay concerns.

The application to sever the counts was granted.

The appellant landlord appealed a decision of the Landlord and Tenant Board ordering him to pay damages to the respondent tenant for a bed bug infestation.

The landlord argued the Board lacked jurisdiction because the property was exempt as shared accommodation.

The Board found as a fact that the tenant was not required to share a kitchen or bathroom with the landlord.

The Divisional Court dismissed the appeal, holding that the appeal was restricted to questions of law under section 210 of the Residential Tenancies Act, 2006, and the landlord was improperly challenging findings of fact.

The appellant was injured on a GO Bus and awarded $35,000 in non-pecuniary damages by a jury.

The trial judge reduced the award to zero by applying the statutory deductible under the Insurance Act, finding that while the respondent employer was vicariously liable, its liability could not exceed that of its protected employee driver pursuant to s. 267.5(10.1).

The Divisional Court dismissed the appeal, confirming that an employer's vicarious liability is capped at the amount for which the protected defendant employee is liable.

The appellant was convicted of sexually assaulting a nine-year-old complainant.

The appeal raised several grounds, including allegations of unequal assessment of evidence, consideration of un-tendered evidence, failure to assess reliability, impermissible inferences, misapprehension of motive evidence, and incorrect application of the burden of proof.

The court dismissed the appeal, finding that the trial judge's credibility and reliability assessments were entitled to deference and that no errors in law or fact were made that would warrant overturning the conviction.

The Attorney General of Canada moved to dismiss or stay an action brought by an Indian Residential Schools Settlement Agreement (IRSSA) claimant, arguing abuse of process based on release, re-litigation, requirement for leave, and improper forum.

The court rejected the arguments regarding release and re-litigation of certain disclosure issues.

However, it found that the action against Canada, which sought damages for breach of IRSSA disclosure obligations, involved the implementation and enforcement of the IRSSA and should have been initiated as a Request for Directions before the Eastern Administrative Judge under the Court Administration Protocol.

The action against Canada was stayed, while the action against the other defendants (solicitors) was deemed properly brought outside the IRSSA provisions.

The Plaintiffs brought a motion for discovery of documents from the City of Greater Sudbury and interveners in advance of cross-examinations on affidavits for a pending interlocutory injunction motion.

The Plaintiffs sought documents related to the City's alleged bad faith and unfair treatment towards them, particularly in comparison to how the City dealt with their neighbours (the interveners).

The court found that allegations of bad faith or unfair treatment were not relevant to the pleaded causes of action (negligence, negligent misrepresentation, estoppel) or the criteria for injunctive relief as currently framed in the Statement of Claim.

Consequently, the request for documents pertaining to the neighbours' properties (1380 Keast Drive and 1366 Keast Drive) was dismissed.

However, the court ordered the City to produce records of communications related to the Plaintiffs' own permit applications and construction at 1377 Keast Drive, finding these relevant.

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 landlord appealed decisions of the Landlord and Tenant Board finding that the Residential Tenancies Act applied to various rental units, despite the parties having signed commercial lease agreements.

The LTB found that the true nature of the tenancies was residential, based on representations by the landlord's superintendents and the actual use of the units.

The Divisional Court dismissed the appeal, holding that the LTB has exclusive jurisdiction to determine whether a premise is a rental unit and to ascertain the real substance of the transaction under section 202 of the Act, and that these were findings of fact not reviewable on appeal.

The landlords appealed a Landlord and Tenant Board decision finding that the Residential Tenancies Act applied to a unit leased under a commercial lease agreement.

The tenant used the unit primarily as a living space and incidentally for creating artwork.

The Divisional Court dismissed the appeal, holding that the Board reasonably applied section 202 of the Act to ascertain the true nature of the tenancy, and that the Board's factual findings regarding the predominant use of the unit were not reviewable on an appeal restricted to questions of law.

The Plaintiff, Algoma District School Board (ADSB), brought a motion for partial summary judgment against the Defendant, Algoma Insurance Brokers Ltd. (AIB), alleging negligence and breach of contract in insurance brokerage services from 1965-1986.

AIB brought a cross-motion for dismissal of ADSB's claim for delay.

The court dismissed ADSB's motion for partial summary judgment, finding it inappropriate given the complexity and lack of efficiency.

The court granted AIB's motion to dismiss for delay, concluding that the 13.5-year delay was inordinate and inexcusable, and ADSB failed to rebut the strong presumption of prejudice to AIB, particularly concerning the fading memories of elderly witnesses and the death of key individuals.

During a trial, the plaintiffs sought a mid-trial ruling to prevent the defendants from asserting the defence of inevitable or unavoidable accident, arguing it was not specifically pleaded as required by Rule 25.07(4) of the Rules of Civil Procedure.

The court ruled that a general denial of negligence in the statement of defence was sufficient to allow the defendants to raise the unavoidable accident defence, as there was no material difference in the legal test or onus, and the pleadings provided adequate notice to the plaintiffs.

The plaintiff brought a motion seeking to strike the defendants' defence, obtain judgment, or restore the matter to the trial list, alleging various procedural failures by the defendants.

The defendants brought a cross-motion seeking to dismiss the plaintiff's action for delay and refusal to attend examination for discovery, and requested security for costs.

The court dismissed both the plaintiff's motion, finding her complaints insufficient and her refusal to attend discovery unreasonable, and the defendants' motion, finding the delay not contumelious or inordinate, and declining security for costs.

The court instead ordered a specific, narrower discovery plan and timetable to advance the litigation.

The landlord appealed a Landlord and Tenant Board decision dismissing his application to evict the tenants for personal use.

The Board found that although the landlord had a good faith intention to occupy the unit, the eviction application was brought because the tenants refused an unlawful rent increase, triggering the mandatory refusal provision under s. 83(3)(c) of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, holding that the Board's conclusion was a factual determination supported by the evidence and that no procedural unfairness occurred.

The Office of the Public Guardian and Trustee (PGT), as statutory guardian for Laurie Ann Vidal, sought a declaration that a specific property ("Toad Lake Solely Owned Property") was not a matrimonial home.

This declaration was necessary to allow the PGT to sell the property and invest the proceeds into a Registered Disability Savings Plan (RDSP) for Laurie, ensuring she could maintain her Ontario Disability Support Program (ODSP) benefits.

The respondent, Brian James Vidal (Laurie's husband), opposed the sale, claiming the property was a matrimonial home requiring his consent.

The court found the motion urgent due to the RDSP contribution deadline.

After hearing evidence, the court determined that the property had not been "ordinarily occupied" as the family residence by Mr. and Mrs. Vidal for many years, thus not meeting the definition of a matrimonial home under the Family Law Act.

The PGT's application was granted, allowing the sale without the respondent's consent.

Malmac Enterprises Inc., a mortgagee in possession, sought a declaration that West Bay Road is an access road under the Road Access Act and an injunction to prevent Melissa and Nicola Alkhoury from blocking access to property 600 West Bay Road.

The Alkhourys, owners of the adjacent property 590 West Bay Road, had repeatedly blocked the road which traverses their land.

The court found West Bay Road to be an access road and that the Alkhourys' barriers prevented all road access to the property.

The Alkhourys had also failed to comply with Minutes of Settlement to construct an alternate access road.

The court granted the declaration and injunction, restraining the Alkhourys from blocking the road, except as permitted by the Act.

This motion addressed whether a joint consumer proposal is annulled when one of the debtors files for bankruptcy.

Nickolas James Crepeau and Sarah Jane Crepeau filed a joint consumer proposal.

Mrs. Crepeau subsequently faced financial difficulties and intended to file for bankruptcy.

The Administrator and Mr. Crepeau sought to continue the proposal for Mr. Crepeau.

The Office of the Superintendent of Bankruptcy (OSB) argued that Mrs. Crepeau's bankruptcy would automatically annul the entire joint proposal.

The court ruled that an assignment in bankruptcy by any debtor in a joint consumer proposal annuls the entire proposal, regardless of the other debtor's ability or desire to continue payments.

The motion brought by the Administrator and Mr. Crepeau was dismissed.

The defendant brought a motion to extend the time to serve and file an appeal from a Small Claims Court decision that struck its defence and awarded damages to the plaintiff.

The defendant had repeatedly failed to comply with court orders, failed to pay costs, and failed to attend trial with its witness.

Applying the Laczko factors, the Divisional Court found that while the defendant intended to appeal and explained the delay, the appeal lacked merit and the plaintiff would suffer prejudice.

The motion to extend time was dismissed.

This motion for directions concerned the procedural path for resolving competing claims against the estate of Michael Birnie.

Susan Larmer, as Estate Trustee and a dependant, sought directions on how to proceed with Janice Birnie's claims (spousal support, life insurance, retroactive CPI adjustments, dependant's relief) and her own and Noah Perron's dependant's relief claims.

The court provided a framework, including timelines for Janice's summary judgment motion, combining the civil action and family application, and confirming Susan's ability to continue as Estate Trustee despite her personal claims.

The applicant, a provincially incorporated company that installs and maintains fibre optic cable for telecommunications networks, sought judicial review of an Ontario Labour Relations Board decision certifying its bargaining unit under provincial law.

The applicant argued its operations were vital, essential, or integral to federally regulated telecommunications companies and thus subject to federal jurisdiction.

The Divisional Court agreed, finding the applicant's work was highly integrated with and integral to the ongoing operations of federal telecommunications undertakings.

The application for judicial review was allowed and the OLRB decision was quashed.