Gavin S. MacKenzie

The appellant appealed the restitution order made at trial following a conviction for fraud.

The trial judge found the amount of fraud was at least $15,645, which was justified by the evidence.

However, the trial judge made an arithmetical error in calculating the final amount.

The Court of Appeal allowed the appeal in part, varying the restitution order to $10,845.

The appellant failed to surrender into custody as required by his release order.

Consequently, the Court of Appeal dismissed the sentence appeal as abandoned.

The Chippewas of Mnjikaning First Nation (MFN) appealed the dismissal of its action claiming a 35% share of net profits from Casino Rama.

MFN argued that its selection as the host site for the casino created a binding contract with Ontario based on its submitted proposal.

The Court of Appeal upheld the trial judge's findings that the site selection process did not constitute a binding tender or RFP process for revenue sharing, and that revenue sharing was intended to be negotiated separately among all First Nations.

The Court also rejected MFN's arguments regarding breach of fiduciary duty, misapprehension of the Aboriginal context, and reasonable apprehension of bias arising from the trial judge's interventions.

The appellant appealed an order striking her statement of claim against a defendant law firm.

The respondent conceded the motion judge erred in concluding the claim did not plead a cause of action, as the claim pleaded 'knowing assistance' in fraud and breach of fiduciary duty.

The Court of Appeal allowed the appeal, set aside the motion judge's order, and granted the appellant leave to amend the statement of claim to provide sufficient particulars regarding the law firm's actual knowledge of the trust and participation in the breach.

The plaintiffs in two medical malpractice actions against a hospital and nurses retained an expert witness who had previously been employed by the hospital and had received confidential solicitor-client information regarding the defence of the actions.

The hospital successfully moved to have the plaintiffs' counsel removed from the record.

The plaintiffs appealed.

The Court of Appeal dismissed the appeal, holding that the presumption that confidential information was imparted to the plaintiffs' counsel had not been rebutted, and that removal of counsel was the only appropriate remedy to protect the integrity of the administration of justice.

The young person appealed their robbery conviction, arguing it was unreasonable due to flawed eyewitness identification from a photographic line up and that the trial judge failed to consider exculpatory evidence.

The Court of Appeal dismissed the appeal, noting the complainant recognized the appellant from prior commercial dealings and another witness corroborated the appellant's involvement in planning the robbery.

The court also found the allegedly exculpatory evidence was not exculpatory and the trial judge was not required to mention every piece of evidence in the reasons.

The appellant appealed his convictions for assault, attempt to obstruct justice, and failure to comply with an undertaking.

He argued the trial judge erred by failing to provide a limiting instruction regarding the investigating officer's testimony about why he did not charge the complainant after she recanted her allegations.

The Court of Appeal dismissed the appeal, finding the officer's testimony explained his investigative process and did not constitute improper oath-helping.

The Crown appealed a summary conviction appeal judge's decision that overturned the accused's four sexual assault convictions.

The summary conviction appeal judge had found that the trial judge erred by failing to consider the exculpatory value of acquittals on four other counts and by limiting the cross-examination of a Crown witness.

The Court of Appeal allowed the appeal and restored the convictions, holding that the acquittals had no exculpatory value on the other counts and that the trial judge properly limited cross-examination that lacked relevance and probative value.

The appellants appealed an order regarding a solicitor conflict of interest.

Leave to appeal was granted on a narrow issue regarding remedy.

The appellants conceded that if the appeal was limited to this single issue—specifically, whether precautionary measures could be put in place after the fact, without arguing that the presumption of receipt of privileged information did not apply—the appeal could not succeed.

The Divisional Court held that the appeal was limited to the narrow ground on which leave was granted and dismissed the appeal, awarding costs to the respondents.

The appellant appealed his 16-month sentence for assaulting his spouse, arguing the sentencing judge mischaracterized the offence and imposed a sentence outside the appropriate range.

The Court of Appeal dismissed the appeal, finding no error in the judge's characterization of the prolonged, brutal assault, which included violent entry into the home, assault in front of a child, and firing an arrow as the victim fled.

The sentence was deemed fit, particularly given it was the appellant's second conviction for spousal assault.

The plaintiffs in two related medical malpractice actions sought leave to appeal an order removing their counsel of record.

The removal was ordered because plaintiffs' counsel retained an expert witness, a former hospital employee, who had previously been involved in the hospital's defence and possessed confidential, privileged information.

The Divisional Court granted leave to appeal on a single narrow issue: whether the plaintiffs should be afforded an opportunity to propose precautionary steps to mitigate prejudice before the drastic remedy of removing counsel is imposed.

The appellants sought to introduce fresh evidence on appeal, specifically a memorandum containing foundational information for the final opinion of an expert retained by the respondents.

A single judge of the Court of Appeal ordered the production of the memorandum under Rule 31.06(3).

The respondents moved to set aside this order.

The Court of Appeal granted the motion, holding that Rule 31.06(3) applies only to the discovery stage of litigation and does not entitle a party to obtain disclosure after trial, especially when the party knew of the expert's final opinion prior to trial but failed to seek discovery of the foundational information at that time.

The appellants' premises were searched pursuant to an Anton Piller order obtained by the respondents.

During the search, the respondents' solicitors seized electronic documents, some of which were subject to solicitor-client privilege.

The respondents' solicitors subsequently accessed and reviewed these privileged documents without the appellants' consent.

The appellants brought a motion to remove the respondents' solicitors of record.

The Supreme Court of Canada held that where lawyers obtain access to relevant solicitor-client confidences during an Anton Piller search, they bear the onus of rebutting the presumption of a resulting risk of prejudice.

The respondents' solicitors failed to discharge this burden and were removed from the record.

The plaintiffs brought a motion for the production of a memorandum detailing a conversation between the defendants' former counsel and their expert witness, Dr. Grafius.

The defendants claimed the memorandum was protected by litigation privilege.

The Court of Appeal held that rule 31.06(3) of the Rules of Civil Procedure must be interpreted broadly, requiring the disclosure of all foundational information for a testifying expert's report.

The court ordered the production of the memorandum, finding that litigation privilege does not protect the foundational information of an expert called to testify at trial.

The appellants appealed a costs award of $610,700.85 granted to the respondents following a successful class action certification motion.

The appellants argued the award was excessive, failed to reflect reasonable expectations, and was inconsistent with prior certification motion costs.

The Divisional Court dismissed the appeal, finding that the motion judge properly exercised his discretion, applied the overriding principle of reasonableness, and appropriately reduced the respondents' claimed costs by 40 percent to account for duplication and overkill.

The court emphasized the high level of deference owed to a case-management judge in complex class proceedings.

The applicant, a Justice of the Peace, sought judicial review of an Order in Council removing him from office following a public inquiry.

The inquiry commissioner found that the applicant had engaged in a pattern of misconduct, including denying due process and abusing judicial power in three separate incidents.

The Divisional Court applied a reasonableness standard of review and upheld the commissioner's findings, concluding that it was reasonable to hold a justice of the peace to the same high standard of conduct as a judge.

The application for judicial review was dismissed.

The defendants sought leave to appeal a costs award of approximately $600,000 granted to the plaintiffs following a successful class action certification motion.

The motion judge's award was significantly higher than any previously awarded for a certification motion.

The Divisional Court granted leave to appeal, finding that the correctness of the order was open to serious debate because the motion judge did not appear to consider the overall reasonableness of the award or the reasonable expectations of the paying party.

The court also found the issue to be of sufficient public importance, as such a high costs award could impact the development of class action law and raise access to justice concerns.

The appellants' solicitors obtained an Anton Piller order and inadvertently seized documents protected by solicitor-client privilege.

The respondents moved to disqualify the appellants' solicitors.

The motion judge dismissed the motion, but the Divisional Court allowed the appeal and disqualified the solicitors.

On further appeal, the Court of Appeal established a new test for disqualification in cases of inadvertent disclosure: whether there is a real risk that opposing counsel will use the privileged information to the prejudice of the moving party, and whether that prejudice cannot realistically be overcome by a remedy short of disqualification.

The appeal was allowed and the matter remitted to the motion judge to apply the correct test.

Bell Canada appealed a taxation order confirming costs awarded by the CRTC to public interest interveners in a rate hearing.

Bell argued that because the interveners received government funding or were represented by retained counsel, they did not actually incur expenses, and thus the award violated the principle of indemnification.

The Supreme Court of Canada dismissed the appeal, holding that while the word 'costs' carries a general connotation of indemnification, the CRTC is not bound by the strict rules applicable in courts and may take a broad view to encourage informed public participation.

The appellant challenged a municipal by-law requiring public garages to erect a fence or plant a hedge along property lines not adjacent to a street.

The municipality enacted the by-law under its authority to license and regulate public garages.

The Supreme Court of Canada held that the requirement was an invalid restriction on land use rather than a valid regulation of the licensed business, as it related to esthetic considerations and external appearance rather than the character or conduct of the business.

The appeal was allowed and the impugned provision was struck down as ultra vires.