Gavin S. MacKenzie

The plaintiffs brought a motion seeking a declaration that the defendant waived litigation privilege over a 'Proffer' document provided to the Attorney General of Canada for national security vetting under s. 38 of the Canada Evidence Act.

The court held that while the document was created for the dominant purpose of litigation, the defendant's stated intention of using it to promote trial efficiency constituted a waiver of privilege vis-à-vis the trial judge.

The court ordered the unredacted Proffer to be provided to the judge and established a comprehensive trial protocol, including the appointment of amicus curiae and advance vetting of sensitive evidence, to balance national security concerns with trial fairness.

The Law Society sought costs of $16,000 following the dismissal of the lawyer's appeal against findings of professional misconduct and the dismissal of the Law Society's cross-appeal on penalty.

The lawyer argued the costs were unreasonable and sought a reduction to $10,000, contending the cross-appeal was unwarranted.

The Tribunal found the Law Society's costs claim reasonable, noting it had already discounted its actual costs to reflect the unsuccessful cross-appeal.

The Tribunal ordered the lawyer to pay $16,000 in costs within 90 days.

The Lawyer appealed a finding of professional misconduct and a nine-month suspension for acting without instructions to prevent her client's family from removing him from life support, filing a misleading affidavit, and acting in a conflict of interest.

The Law Society cross-appealed, seeking revocation of the Lawyer's licence.

The Appeal Division dismissed both appeals, finding that the hearing panel did not err in its application of the Groia test or the CUPE abuse of process doctrine, and that the nine-month suspension was an appropriate penalty given the seriousness of the misconduct.

International medical graduates appealed the dismissal of their breach of contract action against the Royal College of Physicians and Surgeons of Canada.

The appellants sought a declaration that they had passed the Royal College's 2020 qualifying psychiatry exam and were entitled to certification for independent practice.

The trial judge dismissed the action, finding that the Royal College's 6.5% downward adjustment of exam scores was psychometrically justified.

The Court of Appeal found the trial judge's reasons were insufficient because she failed to meaningfully engage with contradictory expert evidence, did not address the breach of contract claim, and did not analyze whether the parties had entered into an enforceable contract or whether the Royal College breached its duty of good faith performance.

The appeal was granted and a new trial was ordered.

The moving party brought a motion for leave to appeal a Superior Court of Justice decision dated June 24, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The applicant, Marian Elizabeth Breukelman, sought costs on a partial indemnity basis after successfully defending a motion by the respondent, Dario Antonio Miret, to remove her lawyers for an alleged conflict of interest.

The court, M.D. Faieta J., assessed the costs considering factors such as the applicant's success, the complexity and importance of the issues, the respondent's failure to make an offer to settle, and the reasonableness of the time claimed by multiple counsel.

The court found the motion complex and important, and that the respondent failed to meet his obligation to settle.

While acknowledging the use of multiple counsel, the court found the total time claimed excessive and adjusted the costs downward.

The respondent husband brought a motion to disqualify the applicant wife's counsel (Tanya Road) and her sister's counsel (Rahul Shastri) in family law and related civil proceedings.

The motion was based on the fact that the respondent's former legal assistant, Olivia Valente, had subsequently been employed by Ms. Road.

The court applied a flexible, case-specific approach to the MacDonald Estate test for non-legal staff, finding that Ms. Valente's role at the former firm was purely administrative and that effective ethical screens were implemented at Ms. Road's firm.

The court concluded that a reasonably informed person would be satisfied that no confidential information would be used to the prejudice of the respondent and dismissed the motion.

The defendants sought costs personally against the plaintiff's counsel following a mistrial.

The mistrial was declared due to the plaintiff's counsel's failure to disclose a conflict of interest involving her husband's medical assessment company, which retained the plaintiff's expert witnesses and significantly marked up their invoices.

The court found that the counsel's conduct frustrated and interfered with the administration of justice, noting her lack of candour and failure to adhere to representations previously made to the Law Society.

The court ordered the plaintiff's counsel to personally pay the costs of the mistrial.

The appellants, gynecologic oncologists, appealed a Superior Court decision that dismissed their application seeking continued funding from the Academic Medical Organization of Southwestern Ontario (AMOSO).

AMOSO, an unincorporated not-for-profit, had decided to discontinue their funding.

The appellants argued breach of contract and sought a contractual remedy or alternative dispute resolution, asserting they were third-party beneficiaries of a funding agreement.

The application judge dismissed their claim, finding no contractual right and that AMOSO's decision-making process was fair.

The Court of Appeal upheld the dismissal, confirming that the appellants were not parties to the agreement, nor were they intended third-party beneficiaries, and that the court's review of AMOSO's discretionary decision was limited to procedural fairness, which AMOSO had met.

The appellants, a family, sued a hospital and medical professionals for medical malpractice after their son suffered a severe brain injury at birth.

The trial judge discharged the jury mid-trial and then dismissed the action.

On appeal, the Court of Appeal for Ontario found that the trial judge failed to provide adequate reasons for discharging the jury, which is a fundamental right.

The reasons were conclusory, did not explain which comments were prejudicial, or why corrective instructions would be insufficient.

The appellate court could not meaningfully review the decision.

Consequently, the appeal was allowed, and a new trial was ordered.

The appellant, Trevor Caruso, appealed a disposition order from the Ontario Review Board (ORB) which found him not criminally responsible (NCR) and ordered his detention due to schizophrenia and various substance use disorders.

The ORB concluded he posed a significant threat to public safety, citing aggressive behaviour when unwell, a compulsive link between substance use and criminal behaviour, and a history of absconding.

The Court of Appeal affirmed the ORB's finding that the appellant remained a significant threat, largely upholding the ORB's reliance on uncharged violent incidents (carjacking, syringe incident) as evidence of risk, while noting that reliance on mere facts of restraint or reported fear without further inquiry was insufficient.

The Court also upheld the ORB's determination that the detention order was the least onerous and restrictive disposition, given the appellant's flight risk, the critical need for daily oral medication, and the high risk of violence if untreated and at large.

The appeal was dismissed.

The appellant, Canada Christian College (CCC), appealed a Divisional Court decision that dismissed its application for judicial review.

CCC challenged the Minister of Training, Colleges and Universities' decision not to recommend proclamation of legislation that would grant CCC university status and degree-granting rights, following a negative recommendation from the Post-Secondary Education Quality Assessment Board.

The Court of Appeal affirmed the Divisional Court's findings, holding that the Minister's decision to refer CCC's application to the Board was within his authority (intra vires) and that his subsequent decision to delay proclamation was reasonable and not an unlawful attempt to override the Legislature's will.

The Court also found no breach of procedural fairness, clarifying the limits of ministerial discretion regarding legislative proclamation.

The appeal was dismissed with costs awarded to the respondents.

The appellant, N.H., appealed a decision of the Consent and Capacity Board which found him incapable of consenting to medical treatment for a mental disorder (antipsychotic medication and/or electroconvulsive therapy).

The Board's decision was based on N.H.'s inability to appreciate the reasonably foreseeable consequences of his treatment decisions due to his mental illness, despite understanding the relevant information.

The Superior Court of Justice reviewed the Board's decision on a standard of palpable and overriding error, finding that the Board's conclusion regarding N.H.'s lack of appreciation was amply supported by the evidence, including his inconsistent testimony about his mental illness.

The appeal was dismissed, affirming the Board's finding of incapacity.

The appellant, under the supervision of the Ontario Review Board since 2009 for serious offences, appealed the Board's disposition maintaining his detention at Ontario Shores.

He argued the detention order was not the least onerous or restrictive, seeking a conditional discharge or a rehearing.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable, particularly its rejection of a conditional discharge due to the appellant's continued need for professional supervision and history of relapse.

The court affirmed that the Board is not required to address every piece of evidence in its reasons.

The appellant appealed a disposition of the Ontario Review Board that ordered his detention in a secure forensic unit, arguing for a hybrid order allowing the hospital discretion over placement.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable given the uncontested evidence that the appellant remained a significant threat to public safety and posed a high risk of absconding.

The appellant, Princes Gates GP Inc. (PG), appealed a trial judgment finding it liable for breach of contract and bad faith termination of agreements with the respondent tenant, 2505243 Ontario Limited (250), a food services provider.

The trial judge awarded 250 reliance damages and employee compensation damages.

PG argued errors in findings of improper termination, refusal to assist with the Canada Emergency Commercial Rent Assistance Program (CECRA), bad faith, and damages calculation.

The Court of Appeal dismissed PG's appeal, upholding the trial judge's findings that PG's actions contributed to 250's inability to pay rent, their refusal to assist with CECRA was unjustified, and their termination was in bad faith by misleading 250 while secretly negotiating with a new provider.

The court also affirmed the reliance damages award and the employee compensation damages.

The appellant, found not criminally responsible on account of mental disorder in 2003, appealed the Ontario Review Board's disposition that continued his detention at a forensic psychiatric hospital.

He sought an absolute or conditional discharge, arguing the Board failed to apply the "significant threat" test and consider all relevant factors for a necessary and appropriate disposition.

The Court of Appeal dismissed the appeal, finding the Board properly applied the "significant threat" test and reasonably concluded that a detention order was required given the appellant's ongoing mental illness, lack of insight, and risk of aggression, despite some progress.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

This is an appeal from a Divisional Court decision that upheld a trial judge's refusal to enter judgment in accordance with a jury verdict in a medical malpractice case.

The jury found the defendant physicians negligent and that their negligence caused the plaintiff's severe disabilities.

The trial judge ordered a new trial, finding the jury's answers on causation insufficient.

The Court of Appeal allowed the appeal, holding that the trial judge erred in refusing to enter judgment.

The court emphasized the high standard for setting aside jury verdicts and the presumption that juries understand and apply judicial instructions, even if their answers are conclusory.

The judgment of $14.9 million in damages was reinstated.

The appellant, found not criminally responsible on account of mental disorder, appealed the Ontario Review Board's decision to continue his detention in forensic custody without including a provision for community living privileges.

The appellant argued this disposition was not the least onerous or restrictive.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable given the appellant's significant risk to public safety, history of elopement and substance abuse, and the expert medical opinion that community living was not feasible at that time.