ENDORSEMENT
OTTAWA COURT FILE NO.: CV-16-70091
DATE: 2026/03/26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MOHAMED ALI ABDI by his litigation guardian AMOUNE ISAMEL-OMER and ZEINAB MOHAMED DIRIEH, AMOUNE ISMAEL-OMER, CHOUKRI ABDI, ZOUBER ABDI, DEKA ABDI, and MUSTAFE ALI ABDI
Plaintiffs
AND
HOUSSEIN ORBISSO GADITO, MOHAMED ORBISSO GADITO, and CITY OF OTTAWA
Defendants
BEFORE: Madam Justice S. Corthorn
COUNSEL: David Hollingsworth, for the plaintiffs
Jaime Wilson, for the defendants, Houssein Orbisso Gadito and Mohamed Orbisso Gadito
Stuart Zacharias, for the City of Ottawa
HEARD: In Writing
ENDORSEMENT
Introduction
[1] The plaintiffs bring a motion in writing for (a) approval of the settlement of the claims advanced on behalf of Mohamed Ali Abdi (an adult under disability); (b) approval of “a fee structure agreement” between the plaintiffs and their counsel; and (c) approval of the proposed solicitor-client account. For the following reasons, the court is not in a position to grant the relief requested; the plaintiffs are required to file a completely new motion record.
Oversized Record
[2] First, the plaintiff’s motion record is in excess of 2,500 pages. The court highlights that, in Ottawa, a compendium is required when a party files a motion or an application record exceeding 250 pages in length for a matter scheduled to proceed to an oral hearing.
[3] Rule 37.12.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), governs motions in writing. The materials required pursuant to that rule do not include a compendium. It is, however, open to this court, to require a compendium on a motion in writing where the motion record exceeds 250 pages.
[4] The plaintiffs’ lawyer and the lawyer for the Gadito defendants are both located in Ottawa. They are aware of or have available to them a document titled, “Guide to Court Approval of Settlements” (“the Guide”). That document can be found on the Carleton County Law Association website.
[5] The court highlights that the Guide is currently under revision to address changes, in the years since the Guide was originally prepared, to the law regarding contingency fee agreements and to include references to recent decisions of interest on other relevant subjects. The anticipated revisions are not relevant to the outcome on the plaintiffs’ motion.
[6] On page 1 the Guide, counsel for the moving party are directed that, when addressing the issue of liability, they are, in their r. 7.08(4)(b) affidavit, to refer “to the supporting documents, if relevant (police report, experts’ reports, etc.) [and provide] copies of the supporting documents if requested to do so by the reviewing judge” (emphasis in original).
[7] Similarly, at page 2 of the Guide, counsel for the moving party are directed that, when addressing the issue of assessment of damages, they are, in their r. 7.08(4)(b) affidavit, to refer “to the supporting documents, if relevant (key experts’ reports) [and provide] copies of the supporting documents if requested to do so by the reviewing judge” (emphasis in original).
[8] Based on the index to the motion record filed in this matter, the supporting affidavit from counsel includes 48 exhibits. Several of the exhibits are of the kind referred to in the Guide – meaning that they are to be made available if requested by the reviewing judge. The plaintiffs’ motion record does not comply with the Guide.
[9] When the motion record was uploaded to Case Center it was not identified as filed in two volumes. If documents are uploaded in multiple volumes, it must be easily identifiable to the individual reviewing the materials in Case Center that there are multiple volumes. Otherwise, it appears to the individual viewing the materials online that two copies of the same motion record were uploaded. In short, plaintiffs’ counsel did nothing to draw to the court’s attention that the motion record is in two parts.
Other Matters as to Form and Content of the Motion Record
a) The Notice of Motion
[10] Pursuant to r. 37.12.1(1), where the motion “is on consent, unopposed, or without notice under subrule 37.07 (2), the motion may be heard in writing without the attendance of the parties, unless the court orders otherwise.” In their notice of motion, the plaintiffs identify their motion as being brought in writing “because no position is taken”. That is not one of the enumerated categories.
[11] At para. 11 of the grounds, the plaintiffs identify that the defendants consent to the relief requested. If that is the case, then why not identify, as the reason the plaintiffs bring the motion in writing, the motion as proceeding on consent?
[12] Second, the grounds upon which the plaintiffs rely in support of the relief requested includes a list of rules from the Rules of Civil Procedure. It is not sufficient to merely cite (meaning a complete citation) a regulatory or statutory provision. The moving party must provide a brief summary of the contents of the provision and a brief summary as to how the provision is relevant to an issue to be determined on the motion.
[13] The plaintiffs cite r. 7.09, which stipulates that settlement funds payable to a party under disability shall be paid to the Accountant for the Superior Court of Justice unless the court orders otherwise. Yet, there is nothing in the narrative portion of the grounds to suggest that the settlement funds will not be paid to the Accountant. If an alternative plan is proposed for the management of the settlement funds payable to the party under disability, then the grounds must address that portion of the relief requested.
[14] The plaintiffs cite r. 16.04. Why is the rule which addresses substituted service or dispensing with service relevant to the motion? Pursuant to r. 7.08(3.1), the materials filed in support of the motion “need not be served on any other party unless a judge orders otherwise.”
b) The Supporting Affidavits
[15] The exhibits to counsel’s affidavit include documents that are part of the record (the statement of claim, an amended statement of claim, and the defendants’ respective statements of defence and crossclaim). Those documents must be included in the motion record as discrete documents – separate and apart from the evidence upon which the plaintiff relies in support of the motion.
[16] The court questions whether the majority of the 48 exhibits are required – specifically when the Guide is followed.
[17] The court notes that there is significant duplication between the exhibits to counsel’s affidavit and the exhibits to the litigation guardian’s affidavit. For example, attached as exhibits to both affidavits are documents described as “Final Account & Dockets”. The court questions how the litigation guardian is in a position to identify the computer-generated dockets maintained by the timekeepers who worked on the file. In any event, the litigation guardian would, when reviewing counsel’s affidavit, have reviewed the relevant exhibit.
[18] Even more important, on motions of this kind, counsel are discouraged from including copies of time dockets. It is incumbent on counsel to provide a summary of the time on the file – broken down, if possible, into the various stages of the litigation. The time docketed is relevant to the court’s consideration of the account – regardless of whether the “fee structure agreement” is approved. The importance of the time docketed to the outcome does not, however, mean that counsel should include copies of time dockets or computer-generated printouts as an exhibit to their supporting affidavit.
[19] There may be other issues with the form and substantive content of the motion record. In this endorsement, the court does nothing more than highlight deficiencies in the form of the record that are patently obvious. It is incumbent on counsel for the plaintiffs to consider additional revisions, including revisions to the substantive text, which may be required when preparing the next motion record.
Interim Disposition
[20] The motion in writing is adjourned. The parties shall select from one of the following three options as the method by which to continue the motion:
a) A revised motion record shall be filed for a motion in writing. The revised motion record shall,
i) comply with the Guide;
ii) comply with r. 37.10(2);
iii) include pages to identify the materials listed in the index (i.e., “Tab 1” or “Exhibit A” – the failure to include tabs in electronic form is problematic as a general rule and specifically problematic when the document filed contains thousands of pages);
iv) address the deficiencies in the existing motion record, as outlined in this endorsement; and
v) be comprised of no more than 250 pages (including exhibits and backpages); or
b) An oral hearing shall be scheduled for the motion. The plaintiffs shall upload, to Case Center, a new, complete motion record that is comprised of no more than 250 pages or, if the plaintiffs choose to rely on a motion record that exceeds 250 pages, the plaintiffs shall also upload a compendium to Case Center. If the plaintiffs rely on a compendium that document shall comply with the most recent notice to the profession on the subject;
The lawyer whose affidavit is included in the motion record shall not be permitted to appear as counsel on the motion (see Section 5.2, The Lawyer as Witness, of the Law Society of Ontario Rules of Professional Conduct); or
c) The parties shall schedule a case conference before me to address the logistics for the continuation of the motion.
[21] I am seized of the matter. If the parties choose option (b), the motion shall be scheduled before me. Counsel shall contact the Civil Trial Coordination Office to schedule the motion, which may proceed by videoconference. If the parties choose option (c), counsel shall communicate with the Civil Trial Coordination Office to schedule the case conference, by videoconference, before me.
[22] Counsel for the plaintiffs shall notify the Civil Trial Coordination Office of the option which the parties select and, through communication with that office, address the logistics for filing additional materials, and/or scheduling an oral hearing, or scheduling a case conference.
Date: March 26, 2026 __________________________________________
Madam Justice Sylvia Corthorn
OTTAWA COURT FILE NO.: CV-16-70091
DATE: 2026/03/26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MOHAMED ALI ABDI by his litigation guardian AMOUNE ISAMEL-OMER and ZEINAB MOHAMED DIRIEH, AMOUNE ISMAEL-OMER, CHOUKRI ABDI, ZOUBER ABDI, DEKA ABDI, and MUSTAFE ALI ABDI
Plaintiffs
AND
HOUSSEIN ORBISSO GADITO, MOHAMED ORBISSO GADITO, and CITY OF OTTAWA
Defendants
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: March 26, 2026