Douglas K. Gray

An application was brought seeking appointment as guardian of property and guardian of the person for an elderly individual alleged to be suffering neglect while living with two children who held powers of attorney.

A capacity assessment confirmed the individual was incapable of managing property and personal care.

The court considered whether guardianship was necessary under the Substitute Decisions Act, 1992, given the existence of valid continuing powers of attorney.

The court held that guardianship should not be imposed where an adequate, less restrictive alternative exists and where strong evidence of misconduct by attorneys is absent.

Because the allegations of neglect were disputed and could not be resolved on the affidavit record, and because the evidence did not establish that the incapable person’s interests were being harmed, the court declined to disturb the existing arrangements.

The plaintiff sought certification of a class proceeding on behalf of operators of Sears Hometown Stores who entered into standard Dealer Agreements with the defendants.

The claim alleged that the contractual arrangements constituted franchise relationships under the Arthur Wishart Act (Franchise Disclosure), 2000, triggering statutory disclosure obligations and a duty of fair dealing, and alternatively alleged breach of contract, breach of the duty of good faith, and unjust enrichment arising from the defendants’ compensation structures, advertising practices, and direct sales into dealers’ market areas.

The court applied the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 and found that the pleadings disclosed viable causes of action, the proposed class was identifiable, and the claims raised common issues concerning the defendants’ standardized contractual practices and compensation structure.

The court further held that a class proceeding was the preferable procedure and that the proposed representative plaintiff was adequate despite not currently operating a store and lacking resources to satisfy potential costs awards.

The action was certified as a class proceeding with revised common issues.

The applicant sought to vary a week‑on/week‑off parenting arrangement so that the child would primarily reside with her.

The dispute centred on allegations that the child was unhappy during time spent with the respondent and required emotional space to address her feelings.

The court considered the status quo principle but found special circumstances justified altering the existing arrangement.

Relying in part on evidence from the child’s counsellor and the child’s expressed wishes, the court ordered that the child reside with the applicant and spend time with the respondent in accordance with the child’s wishes.

A parenting assessment under s. 30 of the Children’s Law Reform Act was also ordered.

Following a scheduled review of custody and access arrangements in a high‑conflict family law matter, the court considered updated evidence including affidavits, a clinical investigator’s report from the Office of the Children’s Lawyer, and counselling records.

The court addressed preliminary issues including whether unpaid costs should bar a party from further participation and whether privileged interview notes obtained inadvertently should be returned and destroyed.

Assessing the best interests of the children, the court found significant evidence of parental alienation by the respondent affecting the youngest child’s perceptions of the applicant.

The court determined that maintaining the existing shared arrangement risked further damage to the child’s relationship with the applicant.

Custody was therefore confirmed with the applicant, with the youngest child ordered to primarily reside with the applicant and the respondent receiving alternate‑weekend access.

Following a successful family law motion, the court addressed costs.

The successful party sought full recovery costs while the unsuccessful party argued for no costs or a nominal award.

Applying Rule 24(11)(b) of the Family Law Rules, the court considered the reasonableness of the parties’ conduct.

The court found that communications from the responding party’s counsel contained inappropriate accusations and unnecessarily escalated the dispute.

As a result, the court awarded full recovery costs with a punitive element to mark its disapproval of the behaviour.

The plaintiff moved for summary judgment seeking the return of a $50,000 deposit after refusing to close a real estate transaction, alleging a misrepresentation regarding the maturity date of an assumed mortgage.

The defendant argued the motion was premature because the action proceeded under Rule 76 (simplified procedure) and discovery steps had not yet occurred, preventing the defendant from obtaining documents and evidence potentially showing the plaintiff affirmed the contract after learning of the misrepresentation.

The court held that, particularly under the simplified procedure where cross‑examination on affidavits is restricted, fairness requires that parties have a meaningful opportunity to obtain documentary and discovery evidence before responding to a summary judgment motion.

The court found that the defendant had not yet been able to put its best foot forward and that there remained a genuine issue requiring trial regarding potential affirmation of the contract.

The summary judgment motion was therefore dismissed without prejudice.

The appellant appealed an order declaring a Notice of Garnishment served on a law firm invalid and unenforceable.

The Divisional Court found that the motions judge erred in law by holding that funds in the lawyers' trust account were not subject to garnishment, as the funds were advanced to satisfy a mortgage debt and could have been withdrawn by the debtor.

However, the court upheld the motions judge's decision based on his equitable discretion, finding no error in his conclusion that the garnishment was an oppressive step in the context of the family dispute.

The appeal was dismissed.

The tenants appealed a decision of the Landlord and Tenant Board on review, which had reversed an earlier order dismissing the landlords' application to terminate the tenancy for personal use.

The original Board Member found the landlords' notice was not given in good faith and that they were in serious breach of their responsibilities.

The reviewing Board Member found the original member erred by considering the reasonableness of the landlords' motives.

The Divisional Court allowed the appeal, holding that the reviewing member unreasonably restricted the meaning of 'good faith' by excluding consideration of motives, and unreasonably failed to address the landlords' serious breach of responsibilities.

The original order dismissing the termination application was restored.

The respondent father brought a motion to stay an Ontario application for child support on the basis that he resided in Florida and that Ontario should decline jurisdiction under forum non conveniens or require the claim to proceed under the Interjurisdictional Support Orders Act.

The court applied the real and substantial connection test and held that the child’s ordinary residence in Ontario constituted a sufficient presumptive connecting factor to ground jurisdiction.

Relying on Court of Appeal authority, the court found that the Interjurisdictional Support Orders Act does not displace jurisdiction under the Family Law Act but provides an alternative procedure.

The respondent failed to demonstrate that Florida was a clearly more appropriate forum.

The motion to stay the Ontario proceeding was dismissed.

The accused was tried for three counts of robbery using a firearm and one count of breach of probation arising from a home invasion robbery.

The evidence established that the accused and an accomplice attended the victims’ apartment intending to steal property and assault the occupant, while another participant wielded a sawed‑off shotgun.

The court rejected the accused’s claim that he was unaware of the firearm and accepted evidence from multiple witnesses that the firearm had been displayed and discussed beforehand.

Applying party liability under s. 21 of the Criminal Code, the court held that the accused knowingly participated in a common plan to commit a robbery in which a firearm would be used.

The accused was therefore convicted of three counts of robbery with a firearm and breach of probation.

The plaintiff lender sought to enforce a second mortgage arising from a refinancing scheme involving the defendants’ former matrimonial home.

The self-represented defendant argued that the registered purchaser held title as a bare trustee for him and that the second mortgage had been executed without his knowledge and was therefore not binding.

The court rejected this evidence, finding the defendant had full knowledge of the financing structure and had participated in arranging the second mortgage.

Email correspondence and surrounding circumstances demonstrated that he acknowledged the debt and promised repayment after default.

The court held the second mortgage was valid and enforceable and ordered that the proceeds of sale held in trust be released to the plaintiff lender.

The defendant brought a motion at a status hearing to dismiss the plaintiffs' medical malpractice action for delay.

The action was commenced in 2000 and the statement of defence was filed in 2002, resulting in an 11-year delay before the status notice was issued.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, noting that the test under Rule 48.14 is disjunctive and requires both a reasonable explanation and a lack of non-compensable prejudice.

The action was dismissed.

A defendant brought a motion to dismiss an action alleging fraudulent conveyance and to discharge a certificate of pending litigation registered against a matrimonial home.

The moving party argued that the claim was barred by a prior full and final release executed after settlement of related debts.

The court held that interpretation of the release required consideration of the surrounding circumstances and could not be determined without a trial, so dismissal of the action was refused.

However, the court found that the release was a material fact that should have been disclosed when leave to register the certificate of pending litigation was obtained.

Because of this non-disclosure, the certificate of pending litigation was discharged.

In an undefended family law motion to change a prior support order, the respondent resided in the United States and had been personally served in Georgia by a private process server.

The court considered whether the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applied to family law proceedings governed by the Family Law Rules.

The court held that family law proceedings are civil matters and therefore the Convention applies, and its procedures are mandatory when service occurs in a contracting state.

The court concluded that service by a certified Georgia process server complied with Article 10(c) of the Convention.

Having found valid service and no response from the respondent, the court allowed the applicant to proceed with an undefended trial and granted the requested relief.

The applicant brought a motion seeking a finding of contempt against the respondent for allegedly breaching a consent access order relating to the parties’ children.

Although affidavit evidence conflicted on most alleged breaches, the court found that the respondent had withheld access for approximately two weeks and that her justification for doing so lacked credibility.

Despite concluding that the elements of civil contempt could have been established beyond a reasonable doubt for that incident, the court declined to make a formal contempt finding.

Emphasizing that contempt in family law matters is a remedy of last resort, the court determined that the circumstances did not warrant such a sanction at that time.

The motion was dismissed, though the respondent’s conduct would be considered on the issue of costs.

The accused were charged with multiple offences following the theft of two motor vehicles and a subsequent police apprehension where officers fired approximately 60 shots at the vehicles.

The accused argued for a stay of proceedings, alleging their Charter rights were violated due to racial profiling and excessive use of force by the police.

The court found no evidence of racial profiling and concluded the police force, while perhaps objectively excessive in hindsight, was a reactive response to a perceived threat to their lives, thus not violating section 7 of the Charter.

The court acquitted the accused of assault with a weapon and attempted murder, finding the Crown failed to prove intent to strike the officers, but convicted the accused of dangerous driving, failing to stop at the scene of an accident, and theft-related charges.

A non‑party developer sought a protective order restricting disclosure of its financial and project financing documents produced in litigation concerning a municipal RFP process.

The moving party argued the information was confidential and that disclosure to a competitor should be limited to counsel and experts and sealed from the public record.

Applying the test in Sierra Club of Canada v. Canada (Minister of Finance), the court held the evidence did not establish a real and substantial risk of harm or a sufficiently important commercial interest.

The court emphasized the open court principle and the public interest in transparency where allegations of political influence and misconduct in a municipal procurement process were raised.

The motion for a protective and sealing order was dismissed, though the court ordered reciprocal disclosure of equivalent financial documents relating to the plaintiff’s proposal.

A high‑conflict custody dispute involving three children where the parents made mutual allegations of parental alienation and sexual abuse.

After extensive evidence, including testimony from police, child protection authorities, medical professionals, and an Office of the Children’s Lawyer clinical assist, the court found no deliberate sexual abuse and concluded the allegations were largely influenced by the responding parent.

The court determined that the views of the older children favouring residence with the applicant were independently formed, while the younger child’s views were likely influenced by the responding parent.

Applying the best interests test under the Children’s Law Reform Act, the court awarded the applicant sole custody of all three children.

Access for the responding parent to the older children was to occur according to their wishes, while a structured transitional schedule was ordered for the younger child, with counselling and a future judicial review.

The applicant sought a declaration requiring its insurer to pay legal defence costs in a wrongful dismissal action brought by a former employee.

The insurance policy excluded indemnity for wrongful termination damages but contained an endorsement providing up to $100,000 in legal defence costs for claims including wrongful termination, subject to a deductible.

The insurer refused coverage, arguing the claim involved intentional conduct and was excluded by policy terms and the fortuity principle.

The court held that the pleadings contained at least a possibility that the claim fell within coverage and therefore triggered the insurer’s duty to defend.

The insurer was ordered to pay the applicant’s defence costs relating to the wrongful dismissal claim, subject to the deductible and policy limits.

A mortgagee applied to pay surplus sale proceeds from a power of sale into court where competing claims existed between joint mortgagors and an execution creditor.

One respondent had filed a consumer proposal under the Bankruptcy and Insolvency Act and argued the execution creditor’s writ could not attach to her share of the surplus due to the statutory stay.

The court held that a writ of execution filed with the sheriff constitutes an encumbrance and a subsequent encumbrancer under s. 27 of the Mortgages Act.

Accordingly, the execution creditor had to be paid from the surplus before any residue became payable to the mortgagors.

The remaining residue was divided equally between the joint owners.