Gavin S. MacKenzie

Following a successful motion by certain defendant insurers seeking a declaration that their law firm could continue acting despite the arrival of a lawyer who had previously acted for the opposing party, the court addressed the issue of costs.

The unsuccessful party argued that the motion arose from circumstances created by the law firm’s hiring decision and that each party should bear its own costs, or alternatively that the amount sought was excessive.

The court applied the principles governing costs under s.131.1 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, emphasizing fairness and reasonableness rather than strict indemnification.

Although the successful defendants claimed approximately $59,800, the court found that amount excessive for a half‑day motion.

Costs were fixed at $42,000 payable within 30 days.

The defendants brought a motion for a declaration that an ethical screen implemented by their counsel of record was sufficient to prevent the disclosure of the plaintiff's confidential information after a lawyer who previously represented the plaintiff joined the firm.

The plaintiff brought a cross-motion to disqualify the firm due to a conflict of interest.

The court applied the test from MacDonald Estate v. Martin and considered the Law Society's guidelines for ethical screens.

Finding that the firm had implemented timely and comprehensive institutional measures, the court concluded that a reasonably informed person would be satisfied that no use of confidential information would occur.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

The appellant appealed a disposition order of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that the Board's reasons justified the disposition and were supported by medical evidence.

The Court noted that a conditional discharge could be possible in the future if the appellant accepts the proposed hospital treatment.

The appellant appealed a disposition of the Ontario Review Board ordering her detention at the Centre for Addiction and Mental Health with discretion to permit her to live in the community.

The Court of Appeal dismissed the appeal, finding no error by the Board.

The disposition was based on a joint submission and supported by uncontradicted psychiatric evidence that the appellant posed a significant risk to public safety.

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

It was uncontested that the appellant posed a significant threat to public safety, precluding an absolute discharge.

The Court of Appeal found the Board's conclusion that a detention order was the least onerous and least restrictive disposition was fully supported by the evidence and free of legal error.

Fresh evidence indicated the appellant was incapable of consenting to treatment, making a conditional discharge unavailable.

The appeal was dismissed.

Appeal under Part XX.1 of the Criminal Code from an Ontario Review Board disposition.

The appellant sought an absolute discharge, but the court held the disposition was reasonable, supported by the evidence, and involved no error of law or miscarriage of justice.

Relying on the attending psychiatrist's evidence, the Board had properly found that the appellant continued to pose a significant threat to public safety.

Deference was owed to the Board's risk-management decision, and the appeal was dismissed.

The appellant, Ante Mihaljevich, appealed a disposition of the Ontario Review Board under Part XX.1 of the Criminal Code.

The Court of Appeal noted that the appellant abandoned the appeal.

The Court allowed the appeal and held that the law firm breached the duty of loyalty by accepting a retainer directly adverse to a current client without consent, then breaching duties of commitment and candour by dropping existing retainers and failing to disclose.

The bright line rule against concurrent adverse representation applies to related and unrelated matters, subject to limited scope constraints.

The matter was remitted for redetermination of remedy focused on maintaining public confidence in the administration of justice.

The appellants appealed an order declaring that their medical malpractice action against the hospital defendants had been settled.

The motion judge had found that the appellants' offer to consent to a dismissal was contingent on the remaining defendants undertaking not to allege negligence against the hospital defendants, and that this undertaking had been fulfilled.

The Court of Appeal allowed the appeal, finding that the appellants had revoked their offer in writing before the remaining defendants purported to fulfill the undertaking.

As the offer was withdrawn before the condition precedent was met, no settlement was reached.

The appellant appealed his convictions for uttering a threat to cause death, criminal harassment, and breach of probation.

He argued that the trial judge erred in the jury charge regarding the defence theory, the independence of confirmatory evidence, the examples of confirmatory evidence provided, and the instruction on post-offence conduct.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's instructions to the jury.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal quashed the appeal as moot because the appellant's underlying finding of not criminally responsible (NCR) had already been reversed on a separate appeal.

The appellant hospital appealed a jury verdict finding it liable for medical malpractice resulting in an infant's permanent brain injury (cerebral palsy) due to oxygen deprivation during birth.

The jury found the attending nurse breached the standard of care by failing to use electronic foetal monitoring and failing to properly perform intermittent auscultation.

The Court of Appeal dismissed the appeal, holding that there was sufficient expert evidence to support the jury's findings on both the breach of the standard of care and causation, and that the verdict was not plainly unreasonable.

The youth appellant was convicted of sexually assaulting a five-year-old child.

At trial, credibility was the central issue, and the appellant denied the allegations.

The trial judge convicted the appellant, finding the complainant's evidence compelling and rejecting the appellant's denial as one of convenience.

On appeal, the Court of Appeal found the trial judge's reasons inadequate.

The reasons failed to explain how the trial judge reconciled problems with the complainant's evidence or why the appellant's evidence did not raise a reasonable doubt.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for aggravated assault, arguing the trial judge provided inadequate reasons and misapprehended the evidence of the complainant's sister regarding an alleged admission.

The Court of Appeal dismissed the appeal, finding the trial judge adequately scrutinized the sister's testimony and did not assign it undue prominence given the formidable circumstantial evidence of identity.

The court also found no misapprehension of evidence regarding the appellant's acknowledgement of involvement in the altercation.

The appellant was convicted of manslaughter, criminal negligence causing death, and failing to provide the necessaries of life after her severely developmentally delayed sister starved to death while locked in her basement.

She was sentenced to nine years' imprisonment.

On appeal, she argued the trial judge provided insufficient reasons regarding expert evidence, failed to properly consider the mental elements of the offences, and imposed a sentence that offended the parity principle compared to her husband's conditional sentence.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons sufficient, the mental elements properly established, and the disparity in sentences justified by the appellant's role as primary caregiver and lack of remorse.

The appellants appealed an order requiring them to execute a specific release and indemnity in favour of the respondent bare trustees before the trustees would convey certain lands.

The Court of Appeal found that the release requested by the respondents was broader in scope than the release provided for in the underlying trust agreement.

The appeal was allowed, and the order was varied to require the appellants to execute a release only in the terms set out in the trust agreement.

The applicant, a former Justice of the Peace, applied for judicial review of a Commissioner's report and an Order in Council removing him from office for judicial misconduct.

The misconduct involved inappropriate in-court treatment of an unrepresented litigant and out-of-court attempts to improperly influence an investigation into his conduct.

The Divisional Court found the Commissioner's recommendation for removal was reasonable given the severity of the misconduct and the need to restore public confidence in the administration of justice.

The application was dismissed, and fresh evidence of the applicant's improved health and character did not alter the outcome.

The appellants appealed the dismissal of their medical malpractice action against a hospital, nurses, and doctors following the birth of a child who suffered severe brain damage due to oxygen deprivation prior to an emergency Caesarean section.

The trial judge dismissed the action, finding that while there were shortfalls in care, the cause of the oxygen deprivation was unknown and therefore not caused by the defendants' negligence.

The Court of Appeal allowed the appeal and ordered a new trial on liability, holding that the trial judge erred in law by deciding the issue of factual causation before determining whether the standard of care was breached, and that the trial judge's reasons were insufficient to explain why the plaintiffs' theory of liability was rejected.

The appellant appealed her conviction, arguing the trial judge erred in using her false statements in a Family Court affidavit as circumstantial evidence of guilt and misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding ample evidence supported the trial judge's conclusion that the appellant concocted portions of her affidavit to cast suspicion away from herself.

The court also found no material misapprehensions of the evidence.

Following the dismissal of the appellant's appeal regarding a claim to Casino Rama profits, the successful respondents sought costs on a full or substantial indemnity scale, citing the appellant's conduct and shifting theories.

The Court of Appeal declined to award elevated costs, finding the appellant's conduct was not reprehensible, scandalous, or outrageous.

Costs were awarded on a partial indemnity scale, fixed at $250,000 for the Chiefs of Ontario and OFNLP, and $75,000 for Ontario.