Robbie D. Gordon

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 applicant sought an order quashing a preliminary hearing judge's decision to commit her for trial on five charges, including firearm possession, unlawful transfer, theft of chattels, unlawful entry into a dwelling, and possession of a firearm obtained by crime.

The court reviewed the committal for jurisdictional error, specifically the absence of evidence on essential elements.

The court found sufficient evidence for committal on the firearm charges (Counts 1, 2, 5) and theft (Count 3, limited to money and the firearm).

However, the committal for unlawful entry (Count 4) was quashed because the applicant, as a joint owner of the matrimonial home without an exclusive possession order, had a lawful right to be there.

A third party in a motor vehicle negligence action brought a motion for summary judgment seeking dismissal of a contribution and indemnity claim against him.

The motion arose from a collision involving two drivers where the only witnesses were the occupants of the vehicles and their versions of events were directly contradictory.

The court applied the test for summary judgment articulated in Combined Air Mechanical Services Inc. v. Flesch and held that the case required the benefits of the trial process to properly assess credibility and draw factual inferences.

Given the absence of independent witnesses and physical evidence, credibility determinations could not be made on the motion record.

The motion was therefore dismissed and the third party claim was allowed to proceed to trial.

A former spouse sought determination of the continuing obligation for spousal support following a consent order that suspended support if the recipient cohabited with another person for one year and terminated it after three years.

The court determined the recipient began cohabiting with a new partner in May 2008, resulting in suspension of support after one year during that relationship, but found insufficient evidence that a later romantic partner constituted cohabitation.

The payor’s income had subsequently declined due to disability, raising the issue of variation under s. 17 of the Divorce Act.

The court held the recipient remained economically disadvantaged from a long marriage and was not proven capable of self‑sufficiency despite limited medical documentation.

Support was therefore varied downward to reflect the payor’s reduced income, with limited retrospective suspension during the earlier cohabitation period.

Following a prior trial addressing spousal support and child-related expenses, the applicant advanced claims for constructive trust based on unjust enrichment, lump sum spousal support, and post-retirement spousal support after her equalization claim became unenforceable due to the respondent’s completed consumer proposal under the Bankruptcy and Insolvency Act.

The court held that although the applicant had made significant indirect contributions during the marriage, the enrichment resulting from the respondent’s bankruptcy process constituted a juristic reason defeating the unjust enrichment claim.

The court also declined to award lump sum spousal support because the respondent lacked financial means and such an order would effectively redistribute assets.

However, the court ordered that spousal support be subject to review upon the respondent’s retirement, with consideration of pension income accrued during the marriage.

The accused brought a Charter application seeking exclusion of evidence seized under a search warrant for computers and storage devices allegedly containing child pornography.

He argued the information to obtain the warrant lacked full, frank, and fair disclosure, that the warrant lacked reasonable and probable grounds, and that the search was overly broad.

The court found that certain information in the information to obtain should be excised or amplified, including surveillance obtained through an unlawful entry onto private property and references to prior charges that had not resulted in conviction.

However, even after excision and amplification, sufficient grounds remained to support the issuance of the warrant.

Applying the section 24(2) framework, the court held the Charter breaches were not sufficiently serious to justify excluding the evidence.

The accused applied for certiorari to quash committals for trial on charges of manslaughter and criminal negligence causing death following a preliminary inquiry.

The case arose from the accused leaving a bottle of methadone with a third party as collateral for a loan; the drug was later consumed by another person who died of acute methadone intoxication.

The applicant argued that there was no evidence of objective foreseeability or causation and that voluntary consumption by the deceased severed the chain of causation.

The court held that there was sufficient circumstantial evidence upon which a properly instructed trier of fact could find that trafficking in methadone under the circumstances was dangerous and that bodily harm was objectively foreseeable.

The court further held that the consumption of the methadone did not necessarily break the chain of causation and that the evidence supported committal for trial on the challenged counts.

Former business associates disputed financial obligations arising from a commercial lease, alleged tax arrears, a purported deposit toward a contemplated property purchase, and a counterclaim for vehicle repair work.

The court found the tenant was responsible for property taxes but concluded that a portion of the increased monthly payments was intended to cover ongoing tax obligations, leaving only a small balance outstanding.

The tenant failed to prove that the deposit exceeded the amount admitted by the landlord.

The counterclaim for historic vehicle repair work was dismissed on the merits despite the absence of a pleaded limitations defence.

After set‑off of the parties’ obligations, judgment was granted in favour of the defendant for the balance.

The defendants moved for summary judgment dismissing claims against several individual defendants on the basis that all contractual dealings were with a corporate entity operating under a business name.

The central issue was whether the plaintiff knew or ought reasonably to have known it was contracting with a corporation rather than individuals.

The court reviewed evidence including cheques, website references, and business name registration and applied the summary judgment framework under Rule 20.04 of the Rules of Civil Procedure.

The court held that the evidence did not establish that the plaintiff had sufficient notice that it was dealing with a corporation, leaving a genuine issue requiring a trial.

However, the claim against one individual defendant was dismissed for lack of any evidence of involvement in the transactions.

The Crown brought a pre‑trial motion seeking to admit two prior consistent statements made by the complainant in a prosecution for sexual assault and sexual exploitation.

The court reviewed the general rule that prior consistent statements are inadmissible for the truth of their contents but may be admitted for limited purposes such as narrative context or credibility assessment.

One statement to the complainant’s mother was conceded as admissible to explain how the allegations came to the attention of police.

The court also admitted a statement made to the complainant’s boyfriend, finding it necessary to explain the circumstances of disclosure and to avoid undermining the credibility of the witness whose observations prompted the disclosure.

The statements were admissible only in general terms and not for the truth of their contents.

In a defamation action arising from letters published in a newspaper criticizing veterinary services, the defendants brought a motion seeking production of additional documents before examinations for discovery.

The court considered the relevance and proportionality of the requested records under the Rules of Civil Procedure.

It ordered production of appointment records for the key date, client files relating to 33 clients allegedly lost due to the publication, and financial and client records underlying the plaintiffs’ damages expert report.

Requests for predecessor financial records and a mailing list were denied as premature or irrelevant.

The court rejected claims of confidentiality over client records due to lack of evidence establishing privilege and ordered the plaintiffs to serve a fresh affidavit of documents and proceed under a litigation timetable.

The applicant sought mandamus compelling a justice of the peace to issue process following a pre‑enquête hearing concerning a proposed private prosecution against a police officer for intimidation of a justice system participant under the Criminal Code.

The justice of the peace had declined to issue process after determining that the evidence failed to establish essential elements of the offence.

The Superior Court held that where a justice of the peace exercises discretion within jurisdiction during a pre‑enquête hearing, mandamus is unavailable and review may only occur by certiorari.

Treating the application as one for certiorari, the court found no jurisdictional error, denial of natural justice, or procedural irregularity.

The justice of the peace properly identified the elements of the offence and reasonably concluded there was no evidence of threats of violence or intent to impede a justice participant.

The defendant sought leave under Rule 48.04 of the Rules of Civil Procedure to proceed with a previously served motion for summary judgment after the parties had consented to place the action on the trial list.

The underlying action involved claims of negligence and breach of contract relating to allegedly improper industrial laundry systems and advice.

The court held that once parties consent to placing an action on the trial list, further motions require leave and such leave should only be granted where justified in the interests of justice.

The moving party had not notified the opposing party or the trial coordinator of its intention to continue the summary judgment motion when consenting to the trial listing, and there was no substantial change in circumstances warranting leave.

The court therefore refused leave and dismissed the motion.

The applicant brought a certiorari application seeking to quash committal to trial on charges of assault causing bodily harm, unlawfully causing bodily harm, and extortion following a preliminary inquiry.

The applicant argued that the evidence did not establish a causal connection between the alleged assault and the complainant’s serious injuries and that the extortion charge lacked evidence of intent to obtain property.

Applying the committal test articulated in R. v. Arcuri, the court held that a properly instructed jury could reasonably infer that the injuries were caused by the alleged assault based on common sense inferences from the evidence.

The court also found sufficient evidence that violence was used to obtain control of the disputed property during the altercation.

The application to quash the indictment was dismissed.

Family law trial addressing custody, access, child support, spousal support, equalization of net family property, and sale of matrimonial real estate following separation.

The court granted the mother sole custody of the child and established a graduated access schedule for the father beginning with supervised access and transitioning to unsupervised weekend access.

Retroactive child support and spousal support were denied because the father's share of rental profits retained by the mother since separation was sufficient to offset those obligations, though ongoing guideline child support was ordered based on imputed income.

The parties were ordered to sell jointly owned real properties with proceeds applied to debts and then divided equally, subject to an equalization payment from the father.

The father was also ordered to sign passport documentation for the child subject to notice restrictions on relocation.

Following a marriage of 16 years, the applicant sought spousal support, contribution to s. 7 expenses, and equalization of net family property.

The court held that the equalization claim was stayed due to the respondent’s completed consumer proposal under the Bankruptcy and Insolvency Act.

The court found entitlement to spousal support on both compensatory and non‑compensatory bases given the applicant’s years out of the workforce raising children and the income disparity between the parties.

Ongoing spousal support of $500 per month was ordered for a time‑limited period until April 30, 2018, together with retroactive spousal support of $8,825 payable monthly.

The court declined to order additional contributions for extracurricular expenses but ordered a modest payment related to post‑secondary education expenses and set out detailed ongoing support arrangements.

A costs decision following a family law trial involving child support, extraordinary expenses, and equalization of net family property.

The respondent sought substantial indemnity costs based on several settlement offers under Rule 18 of the Family Law Rules.

The court found that none of the offers were bettered at trial and therefore did not trigger Rule 18 consequences.

Although trial success was divided between the parties, the court found the applicant had behaved unreasonably during the proceedings by failing to properly disclose income, failing to support the children adequately after separation, and disregarding a court order.

As a result, the applicant was disentitled from claiming costs despite partial success, and the respondent was awarded costs.

Cottage property owners sought a further order modifying an interim consent order governing access over a roadway located on neighbouring lands subject to disputed easements.

The moving parties requested relief permitting propane deliveries, septic pumping, contractor access for repairs, roadway maintenance, and vegetation trimming.

The court held that interim use of the respondents’ property should remain limited to basic use necessary to maintain and enjoy the moving parties’ properties while minimizing risk of damage or inconvenience to the respondents.

Limited relief was granted permitting propane delivery, septic pumping, contractor access for necessary repairs, and controlled trimming of roadside branches, subject to strict conditions.

Requests to undertake broader roadway repairs or renovations were denied pending resolution of the underlying litigation.

The applicant sought an order of mandamus requiring a justice of the peace to receive a private information alleging that a police officer committed indictable offences.

The justice of the peace had refused to receive the information after determining there were no reasonable grounds to believe an offence had been committed.

The Superior Court held that receiving an information is a ministerial act where the information is facially compliant with s. 504 of the Criminal Code.

Because the complaint alleged indictable offences, asserted reasonable and probable grounds, and indicated territorial jurisdiction, the justice of the peace was obliged to receive and swear the information.

The matter was ordered remitted so the information could proceed to the pre‑enquête stage to determine whether process should issue.

Following competing family law motions addressing custody, access, assessment, and child support, the court determined the issue of costs.

Applying Rule 24 of the Family Law Rules, the court considered success, proportionality, the parties’ conduct, and the limited financial means of the litigants.

The respondent had brought an earlier motion that was found not urgent and obtained no relief, entitling the applicant to costs of that motion.

For the later motions, the court found divided success between the parties and ordered each to bear their own costs.