Brian John Gover

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 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.

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 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.

Following a request for clarification and further submissions respecting costs in relation to an initial disciplinary hearing, the Court of Appeal ordered that the costs for that hearing be reserved to the Tribunal presiding over the re-hearing.

The parties made written submissions regarding costs following an appeal.

The Court of Appeal determined that costs should be awarded on a partial indemnity scale rather than an elevated scale.

The court awarded the respondent a total of $61,000 in costs, which included amounts for proceedings before the professional discipline appeal panel, the lower court stay motion, the lower court appeal, and the appellate proceedings, after setting off a previous costs award in favour of the appellant.

The applicant professional regulatory body issued a summons to the respondent police chief for the production of a Crown brief related to criminal charges against a physician.

The respondent refused to comply, arguing that the screening process from D.P. v. Wagg applied.

On a stated case, the Divisional Court held that the public interest principles identified in Wagg apply to a summons issued by the regulatory body.

While the specific civil screening process is not strictly required, the lack of notice to the Attorney General and an opportunity to raise public interest concerns constitutes a lawful excuse for refusing to comply with the summons.

The Law Society and the respondent lawyer brought separate appeals from a Divisional Court decision that set aside a Law Society Appeal Panel's order upholding a finding of professional misconduct and disbarment.

The Divisional Court had remitted the matter to a new hearing panel due to breaches of natural justice.

The Court of Appeal dismissed both appeals.

It held that the Hearing Panel breached natural justice by refusing a brief adjournment to allow the lawyer to be represented by counsel, and by proceeding immediately to the penalty phase without adequate notice.

The Court also upheld the Divisional Court's refusal to stay the proceedings for undue delay, binding the new hearing panel to the original findings on delay up to the start of the first hearing.

The respondent was previously found guilty of civil and criminal contempt for his open, continuous, and flagrant refusal to obey a court order to testify at the Cornwall Public Inquiry.

Having served a six-month sentence for civil contempt, the court convened to determine the sentence for criminal contempt.

Applying the totality principle and considering mitigating factors such as pre-sentence custody and harsh incarceration conditions, the court sentenced the respondent to a further 30 days of incarceration, to be served consecutively without remission or parole.

The appellant lawyer appealed a decision of the Law Society Appeal Panel upholding a Hearing Panel's finding of professional misconduct and order for disbarment.

The appellant argued that the proceedings should have been stayed for delay, and that the Hearing Panel breached natural justice by refusing an adjournment and proceeding to the penalty phase without adequate notice.

The Divisional Court held that the decision not to stay for delay was reasonable.

However, the court found that the Hearing Panel breached natural justice by refusing a brief adjournment when the appellant's counsel had a scheduling conflict, forcing the appellant to proceed unrepresented.

The court also found a clear breach of natural justice in proceeding to the penalty phase with less than 24 hours' notice.

The findings of misconduct and penalty were set aside, and a new hearing was ordered.

The respondent, a former police officer and whistleblower regarding child sexual abuse allegations, refused to testify before the Cornwall Public Inquiry.

He was previously found in civil contempt and ordered by the court to appear and testify.

He deliberately and publicly defied this order, orchestrating his arrest before the media and supporters.

The court sentenced him to six months' imprisonment for civil contempt and found him guilty of criminal contempt, with sentencing for the criminal contempt deferred until the completion of his civil sentence.