Cory A. Gilmore

The plaintiffs brought a medical malpractice action following the death of a 22-year-old man from an aortic dissection six days after he was treated and discharged from an emergency department.

The plaintiffs alleged the emergency physician breached the standard of care by failing to properly review the chart, taking a substandard history, and failing to consider cardiovascular diseases in his differential diagnosis.

The court found that the physician met the standard of care, as the patient's presentation was consistent with a musculoskeletal injury and the likelihood of an aortic dissection in a healthy 22-year-old was exceedingly rare.

The court also found that causation was not proven.

The action was dismissed.

The moving party sought an order compelling the responding party to provide further particulars of allegations contained in a statement of defence and counterclaim in a commercial dispute concerning an equity investment and alleged misrepresentations.

The responding party argued that the request amounted to premature discovery and that extensive documentary evidence had already been produced in related proceedings.

The court reviewed the governing principles under the Rules of Civil Procedure regarding when particulars are required to allow a party to plead and to define the issues.

The court held that several allegations concerning breaches of agreements, statutory violations, and misrepresentations required additional specificity.

Particulars were ordered for multiple categories of allegations, subject to later submissions on costs.

The defendant brought a motion to compel a representative of the plaintiffs to answer an undertaking arising from an examination for discovery regarding which Vitullo family member or related entity held an interest in a real estate brokerage connected to the transaction at issue.

The underlying action involved a claim for specific performance of a real estate transaction and a counterclaim alleging undisclosed conflicts of interest involving the broker and familial relationships.

The moving party argued the shareholding information was relevant to a pleaded conflict-of-interest allegation.

The responding party contended the question was irrelevant and that no undertaking had been given.

The court held the information was relevant to the pleadings and ordered the witness to provide the requested undertaking.

High-conflict custody dispute where each parent had primary care of one child following separation.

The court found that the parties were incapable of effective communication, rendering joint or parallel parenting unworkable.

Relying on expert evidence from the Office of the Children’s Lawyer and Children’s Aid Society, the court emphasized the importance of siblings being raised together and determined that the mother was the more suitable custodial parent despite flaws in both parties’ conduct.

Sole custody of both children was granted to the mother with structured access to the father.

The court also addressed child support, retroactive support, spousal support, and equalization of net family property, ultimately declining spousal support and equalization while establishing prospective child support and a credit mechanism for retroactive support.

The appellant father appealed a motion judge's decision dismissing his motion to terminate child support for his two adult children.

He argued that his income had decreased, that the children refused to have a relationship with him, and that the motion judge breached procedural fairness.

The Divisional Court dismissed the appeal, finding no breach of natural justice, no error in the motion judge's conclusion that there was no material change in financial circumstances, and no error in relying on a psychologist's report which concluded the father's own abusive behaviour caused the estrangement.

The parties disagreed on the form of the order reflecting the court's appeal decision regarding class certification.

The appellant argued the class should expressly include recipients of both English and French versions of the documents, while the respondent argued it should be restricted to the English version.

The Divisional Court agreed with the appellant, noting no distinction was made during the appeal, and varied the certification order to include both language versions.

The appellant brought a motion to extend the time to file an appeal of default judgments obtained against him in Small Claims Court for online defamation, and for a stay of execution of garnishment orders.

The court applied the Bratti test and found the appellant maintained a firm intention to appeal, reasonably explained the delay, and demonstrated the appeal had merit without prejudicing the respondents.

The court granted the extension of time and stayed the execution of the garnishment orders, finding irreparable harm would occur if wages continued to be garnished.

The applicant estate trustee sought to pass the accounts of her late mother's estate.

Two of her sisters objected, alleging that the applicant had improperly managed estate funds and that various inter vivos transfers from the mother to the applicant were loans that needed to be repaid to the estate.

The court applied the presumption of resulting trust and the Locke factors, finding that the transfers were gifts, not loans.

The court passed the accounts and ordered the four sisters to equally share the burden of the estate's unexpected tax liability by repaying a portion of their interim distributions.

The Divisional Court issued a costs endorsement following an appeal and motion for leave to appeal.

The appellant was awarded $50,000 inclusive for the appeal and leave motion.

The costs of the underlying certification motion were remitted to the motion judge, who had extensive experience with the matter, to determine a fair and reasonable amount.

The Crown applied during a voir dire to admit crime scene and autopsy photographs of the deceased in a first-degree murder trial.

The accused argued the photographs were gratuitous, inflammatory, and highly prejudicial.

The court found the photographs were highly probative to illustrate the forensic pathologist's opinions, corroborate testimony, and rebut potential defences such as self-defence or a third-party suspect.

The court concluded the probative value outweighed any prejudicial effect and granted the application to admit the photographs.

The accused, charged with murder, brought an application to adduce evidence of a third-party suspect defence, pointing to his co-accused who had previously pleaded guilty to being an accessory after the fact.

The court assessed whether there was a sufficient nexus between the third party and the offence, focusing on motive and opportunity.

Finding that the third party had a severe drug addiction requiring money and was present at the crime scene and with the accused during the relevant times, the court concluded there was some evidence to support the defence.

The application was granted, and the third-party suspect defence was permitted to be put to the jury.

The Crown applied to admit utterances of the accused made to two civilian witnesses as prior discreditable conduct, and two ante-mortem statements made by the victim to the same witnesses.

The accused is charged with first degree murder.

The court found that the accused's prior threats to kill the victim were relevant to animus, motive, and intent, and their probative value outweighed their prejudicial effect.

The court also ruled that the victim's ante-mortem statements were admissible under the state of mind exception to the hearsay rule and the principled approach, as they were reliable, necessary, and highly probative of the victim's state of mind and the relationship between the parties.

The Crown applied to edit letters written by the accused while in custody awaiting trial for second-degree murder.

The defence argued that without significant editing, the letters would invite prohibited propensity reasoning, while the Crown argued they contained highly probative confessions relevant to identity, motive, and the third-party suspect defence.

The court balanced the probative value against the prejudicial effect, ordering the removal of references to the accused's knowledge of the legal system and inflammatory language, but retaining passages that amounted to confessions or related to the third-party suspect defence.

The accused, charged with first-degree murder, sought to exclude audio and videotaped statements made to police following his arrest.

The court found that a specific utterance made during transport to the police station was obtained in violation of the accused's rights under ss. 10(a) and 10(b) of the Charter, as he had not been given a reasonable opportunity to speak to counsel and was seeking clarity on his charges.

This utterance was excluded under s. 24(2).

However, the court found the subsequent 3.5-hour videotaped statement was voluntary under the Oickle rule and did not violate the accused's s. 7 right to silence, despite his numerous assertions of the right, as police conduct was not oppressive and the accused maintained an operating mind.

The plaintiff appealed a motion judge's decision refusing to certify a negligent misrepresentation claim as a class proceeding.

The proposed class consisted of investors in the defendant's investment fund who received an information folder containing an allegedly misleading statement about replicating a stock index.

The Divisional Court allowed the appeal, finding that a class action was the preferable procedure because it would overcome economic barriers to access to justice for tens of thousands of potential class members and would promote judicial economy by resolving common issues.

The appellant lawyer appealed the Law Society Tribunal Appeal Division's decision to revoke his licence for professional misconduct.

The appellant argued that the penalty was disproportionate because the most serious charge of misappropriation was dismissed, and his misconduct was caused by severe depression.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable.

The Court noted that the appellant's failure to acknowledge his dishonest conduct undermined his psychiatric evidence and failed to reassure the public and the profession of his integrity.

The appellants appealed an order validating substituted service of a statement of claim on defendants residing in Guatemala.

Guatemala is not a signatory to the Hague Convention, and service was attempted by notaries in a manner that did not comply with Guatemalan law.

The Divisional Court dismissed the appeal, upholding the motion judge's finding that Rule 17.05(2) unambiguously allows a plaintiff to choose to serve a foreign party in accordance with Ontario rules when the foreign jurisdiction is a non-contracting state.

The Court held that this express rule overrides the international principle of comity.

The appellants appealed a trial judgment that found the testator had testamentary capacity and was not subjected to undue influence when executing his final will.

The Divisional Court found that while the trial judge properly analyzed the issue of testamentary capacity, there was no analysis or factual findings regarding the issue of undue influence, despite significant evidence suggesting it.

The appeal was allowed, the trial judgment was set aside, and the matter was remitted for a new trial on all issues before a different judge.

The Registrar of the Association of Professional Engineers of Ontario appealed a decision of the Registration Committee directing the issuance of a professional engineering licence to the respondent.

The respondent, who held a foreign bachelor's degree and a Canadian master's degree, had previously failed two technical examinations assigned by the Academic Requirements Committee.

The Registration Committee found that the respondent's master's degree, combined with his foreign bachelor's degree, met the academic equivalency requirements for licensure.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding that the Committee's decision was justifiable, transparent, and intelligible.

The appellant appealed a conviction for impaired operation, arguing that the trial judge failed to consider the evidence as a whole, reversed the burden of proof, and reached an unreasonable verdict.

The court held that the reasons were adequate in the context of a non-credibility case, and that the trial judge was entitled to focus on the evidence bearing on impairment at the time of driving.

The impugned exchange with defence counsel did not shift the burden of proof, but merely identified the determinative evidentiary point.

Applying the governing standard that any degree of impairment from slight to great is sufficient, the court found the verdict reasonable and dismissed the appeal.