Douglas K. Gray

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they discriminated against three Muslim employees by requiring them to taste pork, failing to accommodate religious holidays, and engaging in reprisals.

The applicants argued the Tribunal made unreasonable findings of fact, erred in its treatment of s. 45.1 of the Human Rights Code, and improperly ignored unsworn willsay statements.

The Divisional Court dismissed the application, holding that the Tribunal's fact-finding was reasonable, the s. 45.1 argument was not raised before the Tribunal, and willsay statements of uncalled witnesses are not evidence.

The accused was tried before a judge alone on a charge of aggravated assault arising from a single punch delivered to a fellow inmate in a correctional cell.

The court held that the resulting facial injuries, including lasting impairment affecting vision and the victim's ability to defend himself, constituted maiming within s. 268 of the Criminal Code.

Applying the W.(D.) framework and the air of reality test, the court found both consent and self-defence were raised but disproved beyond a reasonable doubt.

The court rejected the accused's account that he acted defensively during a consensual confrontation and found instead that he struck to teach the complainant a lesson.

A finding of guilt was entered.

The applicants sought a final injunction enforcing a non-competition covenant in a shareholders agreement after a former business participant returned to a competing enterprise and contacted prospective clients previously approached through the joint venture.

The court held the agreement unambiguously provided that the restrictive covenant survived the cessation of share ownership for five years, and rejected the argument that the termination clause nullified the restraint.

Applying the more generous approach to restrictive covenants in commercial agreements, the court found the five-year term and GTA geographic scope reasonable and enforceable.

The court further held that damages would rarely be an adequate remedy for breach of an enforceable negative covenant and granted injunctive relief against the respondents.

On a summary judgment motion arising from an employee's terminal illness, leave of absence, and subsequent death after an asset sale, the court rejected claims of dismissal, constructive dismissal, bad faith termination, and exemplary damages.

The court held there was no act of termination by the employer and no basis for common law damages.

However, applying the Employment Standards Act and O. Reg. 288/01, the court concluded the contract of employment had been frustrated by illness before death.

The estate was therefore entitled to statutory termination pay and severance pay.

The applicant union sought judicial review of three Ontario Labour Relations Board decisions that declared it no longer represented the employees of the respondent employer.

The union argued the Board unreasonably dismissed its allegations of employer interference without a hearing, relying on a continuing taint from a prior Board finding of interference three years earlier.

The Divisional Court dismissed the application, holding it was reasonable for the Board to require the union to plead specific, proximate facts of interference rather than relying on the historical taint, especially since the statute does not impose a reverse onus on the employer in these circumstances.

Following a trial where the plaintiffs were awarded non-pecuniary damages, the court determined the issues of prejudgment interest and costs.

The court awarded prejudgment interest at the prescribed rate of 3.0 per cent from the commencement of the action, declining the defendants' request to average the rate or shorten the period due to delay.

The court rejected the plaintiffs' claim for substantial indemnity costs, finding no justification for it, and awarded partial indemnity costs fixed at $175,000 all-inclusive.

Following a trial in a matrimonial proceeding, the court determined issues of equalization, spousal support, child support, and access.

The court found that shares held by the respondent were beneficially owned by his father and excluded them from equalization.

The court declined to grant the applicant a right of first refusal to purchase the matrimonial home, ordering its sale absent agreement.

For support purposes, the respondent's employee retention bonus was included in his 2014 income.

Spousal support was ordered at the mid-range of the Spousal Support Advisory Guidelines, as the court found the applicant's new relationship was not yet spouse-like.

Access was ordered according to the respondent's requested schedule, but made subject to the 14-year-old child's wishes.

The applicant requested that a long motion, which had been struck from the list for failing to comply with a local practice direction requiring confirmation three weeks in advance, be reinstated.

The court denied the request, noting that judicial resources had already been reallocated and emphasizing that counsel are expected to be aware of published practice directions.

The appellant appealed his summary conviction for dangerous driving and the resulting suspended sentence.

The conviction arose from a collision between the appellant's taxi cab and a moped, preceded by erratic driving including speeding, tailgating, and unsafe lane changes.

The appeal court found no material misapprehension of evidence by the trial judge, concluding that the appellant's driving constituted a marked departure from the norm.

The appeal against both conviction and sentence was dismissed.

An inmate applied for habeas corpus with certiorari in aid seeking release from segregation, quashing of disciplinary sanctions, and orders facilitating personal review of criminal disclosure while in pre-trial custody.

By the hearing, the segregation issue was moot.

The court granted leave to treat the due process complaint as judicial review, but declined certiorari because the applicant had an available appeal to the Minister under the correctional regulation.

The court also held that any alleged impairment of the applicant's ability to review disclosure and make full answer and defence should be addressed by the Ontario Court of Justice seized of the pending criminal trials.

The application was dismissed with no costs.

The court conducted a summary screening under rule 2.1 of a self-represented plaintiff’s civil claim against multiple provincial bodies, police, child protection actors, and private individuals.

The pleading sought remedies the court could not grant and failed to plead material facts connecting alleged wrongdoing to any justiciable cause of action.

Applying the rule 2.1 screening approach described in the Gao decisions, the court held the action was plainly frivolous and vexatious.

The action was dismissed, but without prejudice to the plaintiff commencing a properly pleaded new action.

No costs were awarded.

On an application to remove a family mediator/arbitrator, the court held that the arbitrator had jurisdiction to determine disputes over the child's residence and access under the amending separation agreement, which excluded only joint custody from arbitration.

However, the arbitrator's pre-arbitration statements indicated he had already concluded the mother was undermining the father-child relationship and that the residential arrangement should change.

His insistence on a rushed one-day hearing on short notice, despite counsel's unavailability, also breached the fairness requirements in the Arbitration Act, 1991.

The application was allowed and the arbitrator was removed and replaced.

The accused was tried on charges of attempted murder, possession of a loaded restricted firearm, robbery, aggravated assault, and attempted obstruction of justice following an altercation in a hotel room.

The incident occurred when the accused intervened in a dispute between a sex trade worker and a client over payment.

The court found the accused guilty of possessing a loaded restricted firearm, aggravated assault, and attempted obstruction of justice (for passing a letter instructing the worker to lie).

The accused was acquitted of attempted murder due to lack of specific intent, and robbery because the theft was completed before force was applied.

On a refusals motion arising from two related civil actions over a settlement agreement resolving a car dealership dispute, the moving parties sought production of solicitor-client communications and legal files concerning settlement negotiations.

The responding parties alleged they entered the agreement in reliance on misrepresentations and sought to set it aside, but did not plead reliance on legal advice.

The court adopted the two-part implied waiver analysis requiring that legal advice be material to the lawsuit and affirmatively put in issue by the party claiming privilege.

It held that merely placing state of mind in issue was insufficient, and that disclosure of a single email did not amount to selective disclosure waiving privilege over the broader solicitor-client communications.

The motion was dismissed.

The plaintiff bank brought a motion for summary judgment seeking recovery of $46,784.11 after it mistakenly credited mortgage payments drawn from a frozen bank account and later discharged the mortgage based on an incorrect payout statement.

The court held that the discharge of the mortgage did not extinguish the underlying debt, and allowing the defendants to retain the benefit of the bank’s mistake would constitute unjust enrichment.

The defendants’ argument based on the maxim ex turpi causa non oritur actio was rejected, as the bank’s breach of the freeze order was inadvertent and did not bar enforcement of the debt.

However, the court declined to rectify the land titles register to reinstate the mortgage because the parties could not be restored to their original position and the requested third mortgage would prejudice other mortgagees who were not parties to the proceeding.

Judgment was granted for the debt, and the defendants’ counterclaim was dismissed.

The appellant appealed convictions for assault and breach of probation arising from an incident in which he briefly touched a young complainant’s wrist while speaking with two elementary school students outside a school.

Because the complainants were under 18, counsel had been appointed under s. 486.3(1) of the Criminal Code to conduct cross-examination on behalf of the self-represented accused.

The appellant argued that the appointed counsel failed to pursue a critical defence theory that the complainants fabricated the allegation to avoid trouble with their parents for speaking with a stranger.

The court held that counsel appointed under s. 486.3 must pursue relevant and proper lines of inquiry requested by the accused, even if counsel might otherwise decline on tactical grounds.

The failure to pursue the proposed line of cross-examination deprived the appellant of a fair trial.

Rather than ordering a new trial, the court substituted findings of guilt but replaced the sentence with a conditional discharge and probation already completed.

The appellants appealed a jury verdict that assessed their damages from a motor vehicle accident at zero dollars.

The self-represented appellant argued the trial judge failed to provide adequate assistance, specifically regarding the exclusion of medical consultation notes and limitations on expert testimony due to non-compliance with the Rules of Civil Procedure.

The Divisional Court dismissed the appeal, finding the trial judge reasonably balanced his duty to assist the unrepresented litigant with the need to ensure fairness to the defendants.

In a criminal trial involving allegations of sexual misconduct against a minor, the court considered whether statements made by the accused to his former spouse and to his pastor were made to “persons in authority,” thereby requiring the Crown to prove voluntariness beyond a reasonable doubt.

The accused argued that the statements were induced after both individuals threatened to contact police.

Applying the framework from Hodgson, the court held that the test requires both a subjective belief by the accused that the listener could influence the prosecution and an objectively reasonable basis for that belief grounded in a relationship with police or prosecutorial authorities.

The evidence did not establish that the accused believed either individual was acting as an agent of the police or prosecution.

Consequently, the recipients were not persons in authority and the confessions rule did not apply.

The statements were therefore admissible.

The applicant brought a motion for contempt alleging the respondent repeatedly failed to comply with court‑ordered access exchange arrangements and sought a motion to change custody and child support orders.

The respondent brought a cross‑motion for contempt alleging breaches by the applicant.

Applying the test for civil contempt from Hobbs v. Hobbs, the court found beyond a reasonable doubt that the respondent deliberately disobeyed a clear order by refusing to deliver the child to the designated exchange location, effectively denying the applicant access for several months.

The court declined to vary custody, finding no evidence that changing the child’s residence was in the child’s best interests, but granted limited relief regarding child support arrears due to the applicant’s health‑related inability to work.

The respondent’s contempt motion was dismissed.

The defendant sought leave to amend its statement of defence to assert adverse possession and add a counterclaim claiming ownership of disputed land.

The plaintiff argued the amendment constituted withdrawal of an admission because the original defence relied on acquiescence, which would defeat an adverse possession claim.

The court held that the original pleading did not clearly amount to an admission but assumed it might and applied the test for withdrawal of admissions.

The proposed amendment raised a triable issue, the defendant provided a reasonable explanation based on newly discovered aerial photographs supporting historical possession, and no non-compensable prejudice was established.

Leave to amend the pleading and assert the counterclaim was granted.