Robbie D. Gordon

Belair Insurance Company appealed an arbitrator's decision that found it 100% at fault for indemnifying State Farm Mutual Automobile Insurance Company for statutory accident benefits under a loss transfer dispute.

The Superior Court of Justice reviewed the arbitrator's interpretation of the Fault Determination Rules, specifically rules 12(5) and 13(2), under a reasonableness standard.

The arbitrator had concluded that Rule 13(2) did not apply to incidents involving vehicles travelling in opposite directions in adjacent lanes at an uncontrolled intersection, as such scenarios were covered by Rule 12(5).

The court upheld the arbitrator's interpretation, finding it reasonable and consistent with the legislative scheme's purpose of providing an expedient method for fault determination among insurers.

The appeal was dismissed.

The applicant, Brittany Taylor, sought a stay of proceedings for a charge of possessing fentanyl for the purpose of trafficking, alleging a denial of her right to a trial within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms.

The total delay from arrest to expected trial completion was 24 months, which is below the 30-month presumptive ceiling established in R. v. Jordan for Superior Court matters.

The court found no attributable defence delay.

However, it determined that the applicant's efforts to expedite the trial were not sustained and that the case did not markedly exceed its reasonable time requirements, considering its complexity and the institutional delays.

The application for a stay was dismissed.

The defendants brought a motion for partial summary judgment to dismiss the plaintiffs' claim for a declaration that their property access was an "access road" or "common road" under the Road Access Act.

The plaintiffs cross-moved for summary judgment, asserting the access was a public highway or, alternatively, an access/common road.

The court applied summary judgment principles, finding no genuine issue requiring a trial regarding the "spur road" not meeting the Act's definitions.

Evidence indicated the spur road had not been used by motor vehicles for over 30 years, was overgrown, and lacked a railway crossing mechanism, thus not serving as a motor vehicle access route.

The defendants' motion was granted, dismissing the plaintiffs' claim under the Act.

The plaintiffs' cross-motion regarding the public highway claim was adjourned, and the alternative claim regarding access/common road was dismissed.

Following an appeal where the main appeal was dismissed but the co-appellants successfully appealed a personal costs order, the Divisional Court determined the costs of the appeal.

The respondents were awarded $115,000 in partial indemnity costs for the main appeal.

The co-appellants were awarded $58,406.50 in partial indemnity costs for their successful appeal, payable by all respondents, as the court declined to award substantial indemnity costs.

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 Ministry of the Attorney General sought judicial review of an Information and Privacy Commissioner order directing the disclosure of a draft prosecutorial guideline concerning HIV exposure.

The Commissioner found that while the draft guideline originated in solicitor-client privilege, the privilege was waived when an Assistant Crown Attorney shared it with a municipal public health manager.

The Divisional Court dismissed the application, holding that the standard of review was reasonableness and that the Commissioner reasonably concluded the privilege was waived because the Ministry and the public health authority did not share a sufficient common interest.

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 appellant estate appealed a decision of the Health Services Appeal and Review Board denying reimbursement for out-of-country medical expenses incurred by the deceased in Texas for cancer treatment.

The Board found that the deceased did not seek prior approval and did not meet the requirement for post-approval because the services were not provided in 'emergency circumstances'.

The Divisional Court dismissed the appeal, holding that the Board's factual findings were supported by the evidence and its decision was reasonable.

The tenant appealed an order of the Landlord and Tenant Board refusing to set aside an eviction order, arguing she was the true owner of the property and the landlord held legal title due to fraud.

The Divisional Court dismissed the appeal, finding it lacked jurisdiction because the appeal did not raise a question of law under s. 220 of the Residential Tenancies Act, 2006, but rather sought to re-litigate factual findings.

The court also refused to admit fresh evidence, noting it merely attempted to contradict the Board's factual findings, which the court could not review.

The applicant sought a declaration that the respondent municipality's refusal to post its anti-abortion advertisement on city buses violated its freedom of expression under s. 2(b) of the Charter.

The respondent consented to post the advertisement and did not appear at the hearing.

The Divisional Court found that the Charter applied and the refusal limited the applicant's freedom of expression without a reasonable balancing of statutory objectives.

However, the court declined to issue a formal constitutional declaration due to the lack of an adversarial evidentiary record, instead issuing a consent order requiring the respondent to post the advertisement.

The Appellants sought a stay of a custody order pending appeal, which had awarded custody of two children to the Respondents (maternal grandmother and her common-law spouse).

The court applied the three-part test for a stay, considering a serious question on appeal, irreparable harm to the children if the stay was not granted, and the balance of convenience.

The court found serious issues warranting appellate review and determined that relocating the children to British Columbia and then potentially back to Ontario would cause irreparable harm.

The motion to stay was granted, with strict timelines for the appeal process.

The defendant, Wikwemikong Nursing Home, brought a motion to transfer the plaintiff's wrongful dismissal action from Toronto to Gore Bay, Manitoulin Island.

The court considered the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, finding that the substantial part of the events, the subject matter, and local community interest strongly favoured Gore Bay.

Despite the plaintiff's personal circumstances and damages being sustained in Toronto, the overall convenience of witnesses and the operational requirements of the defendant's long-term care home also supported the transfer.

The court granted the defendant's motion, concluding that the interests of justice required the transfer to Gore Bay.

The plaintiffs sued the City of Greater Sudbury for injuries sustained by Linda Franklin after she fell on an icy, snow-covered parking lot in Delki Dozzi Park.

The court determined that the lesser duty of care under section 4 of the Occupiers' Liability Act did not apply, as the plaintiff was not using a marked recreational trail or venturing off it in the course of such use.

Applying the general duty of care under section 3(1), the court found the City negligent for failing to maintain the parking lot, post warnings, or block access, given the foreseeable public use of other park areas accessible via the lot.

However, the plaintiff was found contributorily negligent for failing to exercise caution given the weather conditions.

Liability was apportioned 60% to the City and 40% to the plaintiff.

The court denied the plaintiff's claim for loss of income due to early retirement, finding she failed to mitigate damages as her injuries did not prevent her from working.

The appellants appealed a trial judgment awarding them nominal damages for breach of contract in the purchase of an audiology practice, and a costs order of over $1 million made personally against the non-party principals of the corporate appellant.

The Divisional Court dismissed the appeal of the trial judgment, finding no reasonable apprehension of bias by the trial judge and no error in his conclusion that damages could not be quantified.

However, the court allowed the appeal of the costs order, holding that under binding appellate authority, the court lacks jurisdiction to order costs against non-parties except where a 'man of straw' is put forward, which was not the case here.

The costs order was varied to be payable only by the corporate appellant.

The appellant appealed decisions of the Criminal Injuries Compensation Board that limited his loss of income claim and denied periodic payments.

The Divisional Court found that the Board erred in law by deducting social assistance benefits (Ontario Works and ODSP) from his compensation, contrary to the Compensation for Victims of Crime Act.

The Court also held that the Board erred by failing to consider its broad discretionary power to vary earlier lump sum awards to allow for periodic payments.

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

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 defendant mortgagor moved to set aside a default judgment and writ of possession obtained by the plaintiff mortgagee, and to stay a prior order declining to set aside a notice to vacate.

The court dismissed both motions, finding no plausible explanation for the defendant's default, no arguable defence on the merits regarding priority of encumbrances or Planning Act compliance, and that setting aside the judgment would cause significant prejudice to the plaintiff and undermine the administration of justice.

The appellant appealed a decision of the Landlord and Tenant Board dismissing his application for a rent abatement on the basis that he was not a tenant.

The Divisional Court found that the Board erred in law by failing to recognize evidence of an implied tenancy agreement, including the appellant's payment of rent and residence in the unit for over two years with the landlord's knowledge.

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