Gavin S. MacKenzie

The Applicant sought to disqualify the Respondent's counsel, Harold Niman and Niman Gelgoot & Associates, citing a conflict of interest due to Niman's prior representation against the Applicant and her family in other family law disputes, and alleging Niman possessed confidential information.

The Applicant also argued the Respondent's retention of Niman was tactical and intended to intimidate her.

Niman brought a cross-motion to strike certain evidence from the Applicant's affidavits, including settlement-privileged communications and documents related to a complaint against Dr. Douglas Weir to the College of Physicians and Surgeons.

The court dismissed the Applicant's motion to disqualify, finding no "sufficient relationship" between the prior retainers and the current proceeding, and no evidence that Niman actually possessed relevant confidential information.

The court granted Niman's motion to strike, upholding settlement privilege and the statutory prohibition against admitting professional regulatory proceedings in civil matters.

The appellant appealed a disposition of the Ontario Review Board.

He had been granted permission to travel to Egypt but failed to return, resulting in an arrest warrant.

The Court of Appeal dismissed the appeal, noting that the appellant's absence without leave deprived the court of the necessary record to properly consider the matter.

Following a successful appeal where the appellant Estate successfully defended the respondent's claim for a one-half interest in a property, the court determined the costs for the proceedings in the court below.

The Estate sought partial indemnity costs of $169,508.

The court reduced this amount by $30,000 to account for two unsuccessful motions brought by the Estate during the litigation.

Costs were fixed at $134,478.68 payable by the respondent to the Estate.

The appellants appealed a trial judgment declaring the respondent the beneficial owner of a half interest in a family home.

The house was purchased in 1974 with title taken in the names of two adult children, as the mother did not qualify for a mortgage.

The mother paid the deposit, mortgages, and expenses using pooled family resources and rental income.

The trial judge found the mother had no money of her own and rejected her resulting trust claim.

The Court of Appeal allowed the appeal, finding the trial judge made a palpable and overriding error by conflating the mother's money with its source.

The Court held the mother was the sole beneficial owner by way of a purchase money resulting trust.

The plaintiff appealed a motion judge's decision refusing to remove counsel for the defendants due to an alleged conflict of interest.

A lawyer who had worked extensively on the plaintiff's file moved to the law firm representing the defendants.

The defendants' firm implemented an ethical screen.

The Divisional Court found that the motion judge erred by focusing on whether the firm had done everything possible to avoid disclosure, rather than whether a reasonably informed person would be satisfied that no use of confidential information would occur.

Given the close working relationship between the migrating lawyer and the defendants' counsel, the court concluded the ethical screen was insufficient to protect the integrity of the administration of justice.

The appeal was granted and the defendants' counsel was removed.

The appellant employer appealed a Small Claims Court decision awarding the respondent employee four months' pay in lieu of notice after he was terminated during his six-month probationary period.

The trial judge had relied on the employee's subjective understanding of 'probation' to find ambiguity in the employment contract.

The Divisional Court allowed the appeal and dismissed the action, holding that the trial judge erred in law by failing to apply an objective standard to contractual interpretation.

The Court affirmed that probationary employment is inherently tentative, and an employer may dismiss a probationary employee without notice if they are found unsuitable in good faith.

The appellant appealed a disposition of the Ontario Review Board ordering his detention at the Centre for Addiction and Mental Health.

He had previously been granted a conditional discharge but subsequently missed appointments, was hospitalized multiple times, used drugs, and exhibited concerning behaviour.

The Court of Appeal found that the Board's conclusion that the appellant posed a significant risk to public safety was reasonable and owed deference.

The appeal was dismissed.

The appellant, who was found not criminally responsible for violent offences in 2002, appealed the Ontario Review Board's refusal to grant her an absolute discharge.

The Board had ordered the continuation of her conditional discharge, finding she remained a significant threat to public safety due to her history of medication non-compliance, limited insight into her mental illness, and lack of a concrete follow-up plan.

The Court of Appeal dismissed the appeal, holding that the Board did not misapply the test for significant threat to public safety and that its conclusion was reasonable and supported by psychiatric evidence.

The Ontario Review Board granted the respondent an absolute discharge.

The hospital appealed, relying entirely on fresh evidence of the respondent's conduct following his release, which included resuming marijuana use, engaging in threatening behaviour, and facing new criminal charges.

The Court of Appeal admitted the fresh evidence, finding it overwhelmingly demonstrated that the respondent remained a significant threat to public safety.

The appeal was allowed and a new hearing before the Board was ordered.

The Centre for Addiction and Mental Health appealed a disposition of the Ontario Review Board dated November 21, 2014.

The Court of Appeal allowed the appeal, ordering the Board to conduct a new and expedited hearing within 60 days and make a new disposition order.

The interim disposition order dated March 30, 2015, remains in effect until the new order is made.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board lacked jurisdiction because he did not suffer from a 'disease of the mind' and challenging the constitutionality of the process under s. 672.54 of the Criminal Code.

The Court of Appeal dismissed the appeal, holding that the Board's jurisdiction is statutory and unaffected by medical assertions regarding a 'disease of the mind', which is a legal concept relevant to criminal accountability, not public safety risk assessments.

The Court also rejected the Charter arguments, noting the constitutionality of the process was settled by the Supreme Court in Winko.

The appellant son appealed a judgment setting aside the transfer of his mother's home to him based on non est factum and undue influence, and dismissing his counterclaim for equitable remedies.

The Court of Appeal upheld the trial judge's findings, noting the mother's limited English, recent widowhood, and lack of independent legal advice.

The counterclaim was properly dismissed due to the appellant's lack of clean hands and prematurity.

The appeal and a related motion were dismissed with costs.

The appellant appealed a disposition of the Ontario Review Board, which found she continued to pose a significant threat to public safety and could not be managed by a conditional discharge.

The Court of Appeal dismissed the appeal, finding the Board's conclusions were reasonable and supported by evidence, particularly given the appellant's ongoing major mental illness, medication non-compliance, and lack of insight.

The appellant appealed a disposition of the Ontario Review Board ordering her continued detention.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellant continues to pose a significant risk due to her lack of insight into her mental illness, history of non-compliance with medication, and the violent nature of the index offence.

The court concluded the detention order was the least restrictive measure to manage the risk.

The appellant, previously found not criminally responsible on account of mental disorder, appealed a disposition of the Ontario Review Board that continued his detention order at the Centre for Addiction and Mental Health.

The appellant argued the Board erred by failing to meaningfully consider a conditional discharge.

The Court of Appeal dismissed the appeal, finding the Board reasonably concluded that a detention order was the least onerous and least restrictive disposition given the appellant's need for close medical supervision, history of substance abuse, lack of insight into his mental illness, and the risk of rapid decompensation without medication.

The applicant sought to review a single judge's order refusing an extension of time to appeal an Ontario Review Board (ORB) disposition and a finding of not criminally responsible (NCR) for criminal harassment.

The Court of Appeal held that the extension of time to appeal the NCR verdict must be sought in the Superior Court, as it was a summary conviction appeal.

Regarding the ORB decision, the Court applied a relaxed test for the intent to appeal due to the applicant's mental illness, but ultimately dismissed the motion, finding the ORB made no error and its decision to detain the applicant was reasonable.

The appellant, who was found not criminally responsible for second degree murder and assault with a weapon, appealed a disposition of the Ontario Review Board.

The Board had upheld restrictions on his liberty and imposed a hybrid disposition, finding he remained a significant threat to public safety due to aggressive behaviour and non-compliance with medication.

The appellant sought an absolute discharge under s. 672.54(a) of the Criminal Code.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the Board's conclusion that the appellant remained a significant risk to public safety and that the hybrid disposition was the least restrictive and appropriate in the circumstances.

The plaintiffs brought a medical negligence action against the defendant doctor regarding care during pregnancy and delivery.

The defendant successfully moved to strike the statement of claim on the basis that it lacked sufficient particulars of the alleged negligence.

The Court of Appeal allowed the plaintiffs' appeal, holding that a plaintiff in a medical negligence action is not required to obtain an expert opinion before pleading, and that the material facts pleaded were sufficient to enable the defendant to deliver a statement of defence.

An NCR accused detained at a psychiatric hospital challenged the constitutionality of s. 672.56 of the Criminal Code, arguing that it violated s. 7 of the Charter by allowing the hospital’s person in charge to determine whether increased restrictions on liberty should trigger mandatory Review Board oversight.

The applicant argued this created a conflict of interest and reasonable apprehension of bias.

The court held that when s. 672.56 is considered within the broader statutory framework of Part XX.1, including discretionary review powers and the availability of judicial review, the scheme provides a fair process.

The notification requirement imposes a statutory duty rather than discretionary review authority.

Accordingly, the provision does not violate principles of fundamental justice.

The appellant appealed a disposition of the Ontario Review Board, challenging the scope of a no-contact provision that included the Toronto Star.

The Court of Appeal found sufficient evidence to justify the continued inclusion of the Toronto Star in the condition, noting the appellant's history of threatening and harassing behaviour targeting media agencies.

The appeal was dismissed, subject to minor modifications proposed by the respondents.