Douglas K. Gray

The moving parties sought leave to appeal to the Divisional Court from an order refusing to set aside a Certificate of Pending Litigation obtained ex parte.

The motion raised whether the moving party had failed to make full and fair disclosure of material facts, including prior sworn testimony inconsistent with the position advanced in the current litigation.

The court held there was good reason to doubt the correctness of the motion judge’s approach to materiality, which focused on whether disclosure would have changed the outcome rather than whether the information should have been disclosed to provide a complete picture.

The court found the withheld information—particularly prior sworn testimony directly contradicting the current claim—was arguably material and significant.

Leave to appeal was granted and the prior costs order was stayed pending the appeal.

An execution creditor sought an order compelling a mortgagee bank to provide a mortgage discharge statement to permit enforcement of a judgment through a sheriff’s sale of the debtor’s property.

The moving party argued that the Court of Appeal’s decision in Citi Cards Canada Inc. v. Pleasance should not apply because it was decided per incuriam or was distinguishable where the creditor had unsuccessfully attempted to examine the judgment debtors.

The court held it was bound by the Court of Appeal authority, which found that mortgage discharge statements constitute personal information protected by the Personal Information Protection and Electronic Documents Act (PIPEDA).

Despite acknowledging significant practical difficulties for judgment creditors enforcing debts, the court concluded the precedent prevented ordering the disclosure.

The motion was therefore dismissed.

The appellant, a correctional officer, pleaded guilty to assaulting an inmate and was sentenced to 60 days' incarceration.

On appeal, he argued the sentencing judge erred by improperly relying on hearsay evidence when finding the assault was unprovoked and that the sentence was demonstrably unfit, contending a conditional sentence should have been imposed.

The court held the sentencing judge erred in placing the burden on the offender to prove provocation rather than on the Crown to prove the aggravating circumstance of an unprovoked assault.

However, the error did not affect the fitness of the sentence.

Given the abuse of authority against a vulnerable inmate and the need for denunciation and deterrence, a custodial sentence remained appropriate.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action relying on deemed admissions arising from the defendant’s failure to respond to a Request to Admit.

The defendant brought a cross‑motion seeking leave to withdraw the deemed admissions and an extension of time to respond, arguing the failure was inadvertent because the company had been represented by a layperson unfamiliar with the Rules of Civil Procedure.

The court applied the test governing withdrawal of admissions and accepted that the failure was inadvertent and that any prejudice could be compensated in costs.

However, the court held that the defendant failed to demonstrate a genuine issue requiring a trial.

Summary judgment was granted to the plaintiff for damages equivalent to three months’ notice.

The accused was charged with sexual interference involving a complainant under the age of consent and sexual assault involving a separate complainant.

The trial required the court to assess credibility where the accused denied any sexual conduct with the younger complainant and denied the alleged assault.

Applying the framework from R. v. W.(D.), the court assessed the evidence of multiple witnesses, including corroborative circumstantial evidence such as descriptions of the accused’s residence, tattoos, and the nature of the relationship between the accused and the younger complainant.

The court found the complainants’ evidence credible and rejected the accused’s explanations as implausible.

The Crown proved both offences beyond a reasonable doubt.

The court determined costs following a family law motion in which the respondent had served an offer to settle that mirrored the order ultimately made.

The court found the applicant failed to comply with her obligation to provide financial disclosure and refused to answer whether she intended to do so when questioned during argument.

This failure affected the substantive ruling on section 7 expenses and was a significant factor in the costs determination.

In light of the offer to settle and the applicant’s unwarranted refusal to disclose financial information, the court awarded the respondent full indemnity costs.

Costs were fixed at $2,744.45 inclusive of disbursements and HST and made payable forthwith.

The court determined the issue of costs following a family law decision in which both parties claimed entitlement to costs.

The court found that success was divided between the parties.

Although the applicant had served multiple offers to settle, the court concluded that the offers did not materially affect the costs analysis because the applicant matched only one of the offers while failing to match the others.

In the circumstances, the court exercised its discretion to decline awarding costs to either party.

The parties, who were never married, separated and signed a separation agreement giving primary residence to the applicant mother.

The respondent father later retired from the Armed Forces, moved to Sudbury, and sought custody of the children or a reduction in child support.

The applicant sought to set aside the separation agreement, claiming duress and lack of disclosure regarding the respondent's pension.

The court dismissed the application to set aside the agreement, finding it was negotiated with counsel and based on the applicant's own counterproposal.

The court also dismissed the respondent's claim for custody, maintaining the status quo to avoid disrupting the children, but ordered a review due to concerns about school absenteeism.

Child support was temporarily reduced based on the respondent's pension income, with a warning that income would be imputed if he did not secure employment.

The respondent father brought a motion to vary an existing child support order on the basis that the adult child of the marriage, who suffered from schizophrenia and was unable to work, had begun receiving benefits under the Ontario Disability Support Program Act, 1997.

The father argued that the ODSP payments should be deducted from his child support obligations retroactively.

The court held that the presumptive approach under s. 3(2)(a) of the Federal Child Support Guidelines applies to adult children unless applying the Guidelines is inappropriate.

ODSP benefits belong to the adult child and do not belong to the recipient parent, and their existence did not render the standard Guidelines approach inappropriate.

The court therefore refused to deduct ODSP benefits from child support and dismissed the motion to vary.

A contested passing of accounts involving a guardian of property appointed to manage the finances of an incapacitated parent.

The applicant challenged substantial cash withdrawals and legal expenses claimed by the guardian.

The court found the accounts wholly inadequate and concluded that the guardian had improperly withdrawn more than $120,000 from the estate and failed to maintain proper records or explanations.

The court rejected post‑hearing attempts to introduce new evidence and denied the guardian any compensation.

The guardian was ordered to repay the improperly withdrawn funds and personally pay the applicant’s costs.

The responding party brought a motion to dismiss or stay an application for child support on the basis that Ontario lacked jurisdiction and that China was the more appropriate forum.

The child and the mother resided in China, while the alleged father resided in Ontario.

The court held that under the Family Law Act, jurisdiction for a child support claim can be grounded on the respondent’s residence in Ontario even where the child lives abroad.

Applying forum non conveniens principles, the court concluded the moving party failed to establish that China was clearly the more appropriate forum.

The motion to dismiss or stay the proceeding was therefore denied and the child support claim was permitted to proceed.

The accused brought a pre‑trial application seeking to quash a search warrant issued under the Controlled Drugs and Substances Act and to exclude evidence seized during the execution of the warrant pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

The court held that the warrant authorizing the search of the residence was valid because the information from confidential informants, corroborated by police investigation, provided sufficient grounds for the justice of the peace to issue the warrant.

However, the warrant did not authorize the search of a motor vehicle located in the driveway, and the search of that vehicle constituted a warrantless search contrary to s. 8 of the Charter.

Applying the framework in R. v. Grant, the court concluded that the police acted in good faith and that the evidence, including a loaded handgun discovered in the vehicle, was highly probative.

The seized evidence was therefore admitted and the application to exclude the evidence was dismissed.

The appellant lawyer appealed a decision of the Law Society's Appeal Panel upholding the revocation of his license to practice law following criminal convictions for sexual exploitation of two minors.

The appellant argued the penalty was too harsh given his prior good character and cooperation, and that the panels erred in assessing remorse and character evidence.

The Divisional Court dismissed the appeal, finding the panels' decisions reasonable and that revocation was an appropriate penalty for sexual misconduct involving a breach of trust with young persons.

Two insurers brought motions to dismiss third party claims arising from a motor vehicle accident involving a rented vehicle and an alleged unidentified driver.

The central issue was the priority of insurance coverage under the Insurance Act where claims were made under the uninsured and unidentified motorist provisions of an automobile policy.

The court held that s. 277(1.1), which alters priority rules for leased or rented vehicles, applies only to third party liability coverage and not to uninsured or unidentified motorist claims.

Such claims remain governed by s. 277(1), which provides that the owner's policy is first loss insurance.

Accordingly, the insurer of the rented vehicle was required to respond first and the third party claims against the other insurers were dismissed.

The appellant appealed his convictions for criminal harassment and breach of recognizance following the end of his relationship with the complainant.

After being warned by police to have no contact with the complainant, the appellant left a letter at her door.

The trial judge convicted the appellant, finding the letter's contents disturbing and sufficient to cause the complainant to fear for her safety.

On appeal, the Superior Court of Justice found the verdict unreasonable, holding that the trial judge failed to properly analyze the mens rea requirement and that a reasonable trier of fact could not conclude the appellant knew or was reckless as to whether the letter would harass the complainant.

The convictions were set aside and acquittals entered.

The appellant landlord appealed a decision of the Landlord and Tenant Board ordering a 10% rent abatement for 53 tenants due to alleged failure to maintain the building and interference with reasonable enjoyment.

The Divisional Court allowed the appeal, finding that the Board member's reasons were conclusory, lacked transparency, and failed to analyze the statutory requirements under the Residential Tenancies Act.

The matter was remitted to a differently constituted panel for a re-hearing solely on the issue of the landlord's obligation to repair.

The appellant appealed a decision of the Social Benefits Tribunal finding that she was not a person with a disability under the Ontario Disability Support Program Act, 1997.

The Divisional Court held that the Tribunal's conclusion was supported by an evidentiary basis, making the issue at highest a question of mixed fact and law.

As appeals to the Divisional Court under the Act are restricted to questions of law, the court lacked jurisdiction and dismissed the appeal.

The applicant sought judicial review of the Minister of the Environment's approval of Terms of Reference for an environmental assessment regarding a transportation corridor.

The applicant argued that the Terms of Reference conflicted with the Growth Plan under the Places To Grow Act, 2005, because they did not restrict the study to the existing highway route.

The Divisional Court dismissed the application, finding that the Growth Plan did not preclude considering alternative routes and that the Minister's decision was reasonable.

During a second trial for drug trafficking, the accused challenged the admissibility of 255 kilograms of cocaine found in his tractor-trailer and certain utterances he made to police.

The court found that the search of the trailer was a warrantless search for criminal evidence, not a valid regulatory inspection under the Highway Traffic Act, and thus violated s. 8 of the Charter.

However, applying the Grant framework, the court admitted the cocaine, finding the police acted in good faith, the accused had minimal privacy interest in the trailer, and society had a high interest in adjudicating the serious charge.

The court also ruled the accused's utterances were voluntary and admissible.

The accused were charged with possession of methamphetamine and cocaine for the purpose of trafficking.

In a pre-trial application, they argued their Charter rights under ss. 8, 9, and 10 were violated during a police stop in a parking lot, and sought exclusion of the seized drugs and cell phones under s. 24(2).

The court found that the accused were arbitrarily detained and their rights to counsel were violated, rendering the subsequent searches unreasonable.

However, applying the Grant framework, the court concluded that the police acted in good faith and society's interest in adjudicating the serious charges on their merits outweighed the breaches.

The application to exclude the evidence was dismissed.