Brian John Gover

Following conviction on charges of Attempt to Commit Mischief to Data and Unauthorized Use of a Computer, the defendant, a former Chief of Staff to the Premier of Ontario, was sentenced to four months imprisonment followed by twelve months probation with 100 hours of community service.

The defendant had directed the wiping of computer hard drives in the Office of the Premier to destroy records responsive to Freedom of Information requests and anticipated legislative committee production orders regarding the gas plant controversy.

The court found the offence struck at the heart of democratic accountability and transparency, warranting incarceration despite the defendant's otherwise exemplary character and community contributions.

David Livingston, Chief of Staff to the Premier of Ontario, and Laura Miller, Deputy Chief of Staff for Communications and Strategy, were charged with Breach of Trust by a Public Official, Commit Mischief to Data, and Unauthorized Use of a Computer.

The Crown abandoned the Breach of Trust charge.

The defendants were accused of directing the wiping of twenty computers in the Office of the Premier during the transition from Premier McGuinty to Premier Wynne in early 2013, allegedly to destroy records responsive to Freedom of Information requests and potential Legislative Standing Committee Production Orders related to the controversial cancellation and relocation of the Oakville and Mississauga gas plants.

The Crown alleged the defendants obtained administrative rights through deception and hired an outside IT consultant to indiscriminately wipe hard drives.

The defendants claimed they sought only to delete personal information and Liberal Party documents from departing staff computers.

Justice Lipson found Livingston guilty on both remaining counts (Attempt to Commit Mischief to Data and Unauthorized Use of a Computer) but acquitted Miller due to insufficient evidence of her knowledge of Livingston's deceptive means in obtaining administrative rights.

A helicopter operated by an air ambulance service crashed shortly after takeoff from Moosonee, Ontario on May 31, 2013, killing four crew members.

The Crown charged the operator with six counts under the Canada Labour Code, alleging failure to ensure employee safety.

At trial, three counts remained: two alleging failure to provide pilots with means to maintain visual reference while operating at night (counts 3 and 4), and one alleging failure to provide adequate supervision by eliminating the Base Manager position (count 10).

The Crown argued that night vision goggles should have been provided.

The court found that while the crash was caused by controlled flight into terrain, the defendant exercised due diligence and complied with all regulatory requirements.

All three counts were dismissed.

The defendants, David Livingston and Laura Miller, pleaded not guilty to charges of breach of trust by a public official, mischief to data, and unauthorized use of a computer.

The Crown withdrew the breach of trust count at the close of its case.

The defendants brought a motion for a directed verdict of acquittal on the remaining two counts.

The court found that while the Crown failed to establish that actual data was destroyed, there was sufficient evidence that the defendants attempted to commit mischief to data without legal justification or colour of right.

The motion was allowed in part on the mischief to data count, which was reduced to attempt to commit mischief to data.

The motion was dismissed on the unauthorized use of a computer count.

The Crown sought to qualify Robert Gagnon, a retired OPP officer, as an expert in computer systems operation and forensic recovery of computer data.

The defence opposed qualification, arguing that Gagnon's extensive involvement in the police investigation and his expressed bias regarding the defendants' guilt disqualified him from providing independent and impartial expert evidence.

The court excluded Gagnon's evidence, finding that he had conflated the roles of expert and investigator, participated extensively in investigative strategy and team meetings, and demonstrated lack of independence and impartiality through his communications recommending charges and providing strategic legal advice to investigators.

The Member, a registered nurse, faced allegations of professional misconduct for withdrawing medications (primarily narcotics) from the hospital's dispensing system without documenting their administration or disposal.

The Member admitted to the allegations via an Agreed Statement of Facts.

The Discipline Committee found the Member committed professional misconduct by contravening standards of practice, failing to keep records, and engaging in unprofessional conduct.

The Committee accepted a joint submission on penalty, ordering a reprimand, a three-month suspension, and terms including meetings with a nursing expert and employer notification.

The defendant corporation brought a motion to quash counts 10 and 11 of an information charging it with offences under the Canada Labour Code.

The defendant argued the counts were defective because they failed to specify which prescribed regulations had been breached, contrary to the principles established in R v Wis Developments.

The Crown sought to amend the counts to allege breaches of section 124 rather than section 125 of the Act.

The court found the counts were fatally deficient in failing to identify the specific regulations allegedly breached, but permitted amendment to reframe the charges under section 124 as a single statutory duty to ensure employee health and safety, rather than specific regulatory violations.

The Crown applied to admit excerpts from a prior costs endorsement by Justice M.A. Penny as evidence in a criminal trial against John D’Souza and Peter D’Gama, who were accused of using a fake judgment bearing Justice Penny's forged signature.

The application sought to use the endorsement under the principled exception to the hearsay rule, arguing necessity (judges are not compellable) and reliability.

The court found Justice Penny not compellable to testify due to judicial immunity, as his potential testimony was inextricably intertwined with his judicial function.

The application was allowed in part, admitting factual statements from the endorsement that met threshold reliability and were not overly prejudicial, while excluding passages that reflected Justice Penny's judicial views, opinions, or reasoning, to prevent undue prejudice to the accused.

In a professional discipline hearing, the panel found that the member repeatedly breached a practice undertaking and certificate restrictions by initiating and providing prosthodontic and implant-related treatment after agreeing not to do so.

The panel also found that the member gave inaccurate information to the regulator about the scope of post-undertaking treatment and failed to respond appropriately to a written records request concerning a patient file.

Applying the civil balance of probabilities standard, with clear, convincing and cogent evidence, the panel accepted the investigators' evidence and rejected the member's interpretation that screw-retained prostheses fell outside the undertaking.

Findings of professional misconduct were entered on all pursued allegations in both notices of hearing.

The applicant, a transitioned female cyclist, alleged discrimination on the basis of sex regarding the imposition of anti-doping requirements as a condition of obtaining a race license.

The Tribunal held a preliminary hearing to determine jurisdiction, timeliness, and whether to add WADA as a respondent.

The Tribunal found it had territorial jurisdiction over the UCI, as it extensively regulates the licensing process in Ontario, but not over the IOC or WADA.

The Tribunal also found the applicant's claims regarding the denial of her race licenses in 2013, 2014, and 2015 were timely as a continuing contravention, but claims regarding the Stockholm Consensus were out of time.

The request to summarily dismiss the application for lacking a reasonable prospect of success was denied.

During an appeal involving allegations of ineffective assistance of counsel, the appellant's trial counsel retained his own lawyers.

Trial counsel's lawyers inadvertently disclosed a letter between trial counsel and themselves to the appellant's appeal counsel.

Trial counsel brought a motion for the return of the document, asserting solicitor-client privilege.

The Court of Appeal granted the motion, finding that the letter was privileged, the inadvertent disclosure did not constitute a waiver, and the innocence at stake exception did not apply to abrogate the privilege.

The defendants brought a motion to disqualify the plaintiff's counsel, Gowling WLG (Canada) LLP ("Gowlings"), from further representing the plaintiff.

The defendants argued that Gowlings possessed confidential information obtained during failed negotiations with four dissident partners (now associated with the defendants) and that Gowlings partners were likely material witnesses.

The court found that Gowlings held confidential information relevant to the claims, imparted under a reasonable expectation of confidentiality, and that there was a risk of misuse.

Given the lack of an immediate and effective ethical wall, and the early stage of litigation, the court granted the motion, disqualifying Gowlings.

The potential for Gowlings partners to be witnesses was considered an additional factor supporting disqualification.

The appellant appealed a decision of the Discipline Committee dismissing a motion to reconsider its order suspending the mandatory revocation of the respondent pharmacist's certificate of registration for sexual abuse.

The appellant argued the Committee lacked jurisdiction to suspend a mandatory revocation under the Health Professions Procedural Code.

Applying a reasonableness standard of review, the Divisional Court held that the Committee's interpretation of its home statute was reasonable.

The Court found that the mandatory revocation provision did not preclude the Committee from exercising its general power to suspend penalty orders.

The appeal was dismissed.

The Attorney General moved under s. 21(5) of the Courts of Justice Act to set aside a motion judge's order refusing to consolidate a pharmacist's constitutional challenge in the Superior Court with his professional misconduct appeal in the Divisional Court.

The Attorney General sought to have the consolidated proceeding stayed and the constitutional issue remitted to the College's Discipline Committee.

The Divisional Court dismissed the motion, finding no error of law and no palpable and overriding error in the motion judge's conclusion that exceptional circumstances justified allowing the constitutional challenge to proceed in the Superior Court, particularly given the Discipline Committee's inability to grant a general declaration of invalidity.

The applicants brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order quashing their application for judicial review of ongoing regulatory disciplinary proceedings.

The Divisional Court dismissed the motion, agreeing with the motion judge that the application for judicial review was premature because the issues should be determined at first instance by the regulatory hearing panel.

Costs of $15,000 were awarded to the respondent on consent.

The respondent, IIROC, brought a motion to quash an application for judicial review commenced by the applicants, an investment dealer and its CEO.

The applicants sought to quash a notice of hearing and other disciplinary steps taken by IIROC.

The Divisional Court granted the motion to quash, finding it plain and obvious that the application could not succeed.

The court held that it lacked jurisdiction under section 2(1) of the Judicial Review Procedure Act because IIROC's disciplinary powers arise from contract, not statute or public authority.

Furthermore, the application was premature as the issues should be determined at first instance by the IIROC Hearing Panel.

The Member, a registered nurse working in a psychiatric unit, admitted to professional misconduct for crossing professional boundaries and emotionally abusing a vulnerable client.

The Member made inappropriate comments, hugged the client, kissed the client on the forehead, tucked the client into bed, and stroked the client's hip.

The Discipline Committee accepted an Agreed Statement of Facts and a Joint Submission on Order, finding the Member's conduct to be dishonourable and unprofessional.

The Member was reprimanded, suspended for two months, and subjected to terms, conditions, and limitations on his certificate of registration, including mandatory sessions with a nursing expert.

The appellant, a former employee of a Toronto Stock Exchange (TSE) member, appealed a decision of the Ontario Securities Commission (OSC) which upheld a ruling by Market Regulation Services Inc. (RS).

The OSC found that the Universal Market Integrity Rules (UMIR) were enforceable against the appellant for conduct that occurred during his employment, despite his subsequent resignation.

The Divisional Court dismissed the appeal, finding it reasonable for the OSC to conclude that the TSE validly adopted the UMIR and that RS had jurisdiction to discipline former employees for misconduct committed while they were employed by a TSE member.

The applicant, a police officer facing disciplinary proceedings, sought judicial review of a Hearing Officer's interlocutory decision dismissing his motion to stay the charges for abuse of process and lack of jurisdiction.

The Divisional Court dismissed the application as premature, holding that the applicant should proceed through the statutory appeal process after a final decision.

The Court also addressed the jurisdictional argument on its merits, finding that the Hearing Officer reasonably and correctly interpreted the Police Services Act in concluding that an investigation need not be entirely completed before a notice of hearing is issued.

The applicant, an anesthesiologist, sought judicial review of an interim order made by the respondent's Inquiries, Complaints and Reports Committee that effectively shut down his practice following a patient's death.

The court found that the Committee's decision to issue the interim order was unreasonable because there was no evidence of probable harm to future patients, only speculation based on a single incident.

Furthermore, the court held that the Committee breached procedural fairness by relying on undisclosed materials and improperly considered evidence protected under the Evidence Act.

The application was allowed and the interim order was quashed.