Gregory M. Mulligan

On a Small Claims Court appeal, the appellant challenged the pre-trial dismissal of a $25,000 medical negligence claim arising from alleged negligent treatment causing loss of vision in one eye.

The appeal judge held that the deputy judge improperly treated a Rule 12.02 motion as a summary judgment motion and erred in dismissing the claim based on the appellant's failure to produce expert reports within timelines set at settlement conferences.

The court found the pleading itself was not inflammatory, a waste of time, a nuisance, or an abuse of process, and that dismissal on this basis denied natural justice.

The appeal was granted and the matter remitted to Small Claims Court for a hearing.

In a dispute arising from the sale of development land subject to a 27-lot draft plan of subdivision, the vendor alleged breach of fiduciary duty and contract after its dual real estate agent became an undisclosed shareholder of the purchaser before closing.

The court found the agent and brokerage owed fiduciary duties, failed to provide the written disclosure required by the Real Estate and Business Brokers Act, and were required to disgorge the commissions paid on closing.

The court also awarded the vendor the disputed $100,000 vendor take-back mortgage credit paid into court, with 7% simple interest, but refused claims to subsequent commissions and punitive damages.

On the counterclaim, the purchaser recovered mortgage refinancing and related legal costs caused by the vendor's lack of cooperation, but failed on broader claims for development and road costs; punitive damages of $10,000 were awarded against the vendor and its principal for misconduct surrounding an ex parte certificate of pending litigation.

In a family law motion, the respondent sought removal of the applicant's solicitor after the respondent's former counsel joined that solicitor's firm.

Applying the conflict principles from MacDonald Estate and McKercher, the court accepted that an ethical wall had been established but held that the broader concern was whether a reasonably informed member of the public would be satisfied that confidential information would not be used.

In the family law context, where clients disclose highly personal strategic information, the court found that the appearance of conflict remained.

The motion was granted and the solicitor was removed from the record.

Costs of $6,000 were awarded to the moving party.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol level over the legal limit, arguing that an investigative detention in a private parking lot was unlawful and that the trial judge misapprehended the evidence.

The court held that while random Highway Traffic Act stops do not apply on private property, the officer was entitled under common law investigative detention powers to act on reasonable suspicion.

The officer's observations of unusual vehicle movements after 2:00 a.m. in a bar area, combined with public safety concerns and the possibility of medical distress or impairment, provided an objectively grounded basis for detention.

The appeal was dismissed.

At a status hearing in a simplified procedure action arising from an alleged failed business venture, the defendants sought dismissal for delay after the plaintiff took no steps for more than two years following the close of pleadings.

The court held that the transitional provision in Rule 48.14(12) required application of the former version of Rule 48.14 because the status hearing had been scheduled before January 1, 2015.

Applying the Court of Appeal's status hearing jurisprudence, the court found the plaintiff's explanation for delay inadequate and noted the absence of any steps to advance the action.

The action was dismissed.

The applicant sought judicial review of a FSCO Delegate's decision upholding an arbitrator's finding that his entitlement to WSIB benefits precluded him from receiving statutory accident benefits (SABS).

The applicant argued the insurer was estopped from relying on his suspended licence to deny benefits and that the arbitrator erred in interpreting the onus under s. 59(2) of the SABS Schedule.

The Divisional Court dismissed the application, finding the Delegate's decision reasonable.

The insurer did not mislead the applicant, and the applicant failed to discharge his onus to prove his civil action was not commenced primarily for the purpose of claiming SABS.

The appellant appealed a Small Claims Court judgment awarding damages to the respondent for injuries sustained in a workplace altercation.

The deputy judge had relied on a Workplace Safety and Insurance Appeals Tribunal decision, which found the appellant was the aggressor, to establish liability.

On appeal, the Divisional Court held that the deputy judge erred in law by failing to make an independent finding on liability, as the Tribunal had explicitly left that determination to the court.

The Divisional Court also found the deputy judge erred by dismissing the appellant's counterclaim without providing reasons.

The appeal was allowed, and the matter was remitted to the Small Claims Court for a new trial before a different judge.

Following a two-day family trial between self-represented former spouses, the court determined retroactive and prospective child support, spousal support, and equalization of net family property.

The court found the applicant had not made reasonable efforts toward self-sufficiency and imputed stepped-up income to her beginning when shared parenting commenced.

Using that imputed income and the respondent’s annual earnings, the court recalculated support, found a net spousal support overpayment offset by child support owing, and ordered future support at reduced levels.

The court also adjusted competing chattel valuations, accepted the respondent’s pension valuation with revisions, and ordered an equalization payment together with distribution of trust funds from the sale of the matrimonial home.

In a commercial property boundary dispute, the applicant sought declarations of ownership over a disputed strip of land and authority to relocate a chain link fence to the surveyed property line.

The respondent argued the application was barred by abuse of process due to earlier litigation between predecessors in title and alternatively relied on adverse possession under the Real Property Limitations Act.

The court held that the respondent had not established the required ten years of adverse possession before the land was converted to Land Titles Qualified, and that s. 51(1) of the Land Titles Act barred acquisition of adverse interests thereafter.

The earlier action concerned easement and access issues, not ownership of the disputed lands, so the application was not an abuse of process.

Declaratory and injunctive relief were granted, with implementation delayed for sixty days.

The accused brought a pre‑trial application seeking permission to challenge prospective jurors for cause due to extensive pre‑trial publicity surrounding a homicide prosecution.

The parties agreed on five proposed voir dire questions addressing jurors’ exposure to media coverage and potential pre‑formed opinions, but disagreed on a sixth question referencing the alleged dismemberment of the deceased.

The court considered the distinction between prejudice against the accused and generic prejudice arising from the nature of the offence, as discussed in appellate authorities.

The judge held that the sixth question constituted an impermissible offence‑based question and that the presumption of juror impartiality had not been displaced.

The challenge for cause was permitted but the proposed sixth question was excluded.

Pre-trial evidentiary ruling in a homicide prosecution concerning the admissibility of photographs of the deceased taken prior to death.

The Crown sought to introduce several social photographs to show the victim’s physical stature and to humanize the victim before the jury.

The defence argued the photographs lacked probative value and risked eliciting sympathy from the jury, offering instead to concede the victim’s size and stature through an agreed statement of facts.

Applying the probative value versus prejudicial effect analysis from established authorities, the court concluded that one photograph had limited but legitimate probative value and minimal prejudicial effect.

The court permitted the Crown to introduce a single photograph depicting the victim’s small stature, subject to appropriate jury instructions.

The applicant sought judicial review of an arbitration award that ordered her to repay a $209,912 lump sum to her former employer.

The arbitrator found that the applicant breached the confidentiality provision of a grievance settlement agreement by referencing the payment in a self-published book.

The Divisional Court dismissed the application, finding that the applicant lacked standing because the union had not failed in its duty of fair representation.

Furthermore, the court held that the arbitrator reasonably concluded the repayment provision was a valid forfeiture clause, not an unconscionable penalty, and that the applicant had clearly breached the confidentiality terms.

The defendant sought leave to appeal an interlocutory order that permitted a student-at-law to be present as a passive observer during a defence in-home future care costs assessment of the plaintiff, and that denied the defence expert's request to conduct a functional capacity evaluation.

The Divisional Court dismissed the motion for leave to appeal, finding that the motions judge properly exercised his discretion under Rule 33.

The court held there were no conflicting decisions on the matter and no reason to doubt the correctness of the order to warrant granting leave under Rule 62.02(4).

The offender was found guilty of multiple firearms offences, including possession of a loaded, fully automatic machine pistol with an obliterated serial number, while subject to a weapons prohibition order.

The offender discharged his counsel prior to sentencing and proceeded self-represented with amicus assistance.

The court applied recent appellate jurisprudence to grant enhanced pre-sentence custody credit despite the offender's prior record.

A global sentence of 6 years and 2 months was imposed, reduced by 24 months of pre-trial credit, leaving 4 years and 2 months to serve.

The applicant father brought a motion for summary judgment seeking a final order for sole custody of the parties' daughter, with no access to the respondent mother, due to concerns of parental alienation.

The mother opposed the motion, arguing there were genuine issues for trial, including the right to cross-examine the father's expert psychiatrist.

The court dismissed the motion for summary judgment regarding custody, finding that a trial was necessary to determine if the alienation had been overcome by the daughter's exclusive residence with the father over the past year.

The court continued the temporary sole custody order and fixed an uncontested spousal support overpayment at $15,635.

Following a family law motion involving requests to set aside a separation agreement, pursue equalization, and address child and spousal support, the parties reached temporary minutes of settlement increasing child support and adjourning other issues.

The respondent sought costs of $7,500 on a partial indemnity basis for preparation addressing limitation issues and the attempt to set aside the separation agreement.

The court found that significant preparation by the respondent related to issues that could not properly be determined on a short motion and that were effectively abandoned for the motion hearing.

Considering the limited success of the applicant and the access to justice concerns surrounding unresolved support and equalization issues, the court awarded partial costs to the respondent.

Costs were made payable upon determination or settlement of the outstanding issues unless the applicant abandoned her claims earlier.

The moving party sought to set aside a default judgment entered after failing to file a defence to a civil claim alleging liability arising from corporate dealings and alleged fraud, misrepresentation, and breach of trust.

The court applied the test for setting aside default judgment, considering promptness of the motion, explanation for the default, the existence of an arguable defence, prejudice to the parties, and the interests of justice.

Although there was delay in bringing the motion, the court found the moving party had an arguable defence because the pleadings did not clearly connect the individual defendant to the contractual obligations or alleged misconduct.

The court concluded that it would be unjust to allow the default judgment to stand.

The judgment was set aside on the condition that the moving party pay the respondent’s costs thrown away.

Following a successful motion setting aside a prior contempt order, the applicant sought full recovery costs of approximately $12,959.66.

The respondent argued that no costs should be awarded because the matter concerned setting aside a contempt finding and the respondent was required to attend to assist the court, or alternatively that the bill was disproportionate.

The court held that the applicant was completely successful and that the respondent could have consented or taken a non-opposition position to avoid the hearing.

Applying modern costs principles emphasizing partial indemnification, encouragement of settlement, and discouragement of unnecessary litigation, the court found full indemnity costs unwarranted but awarded partial costs.

Costs of $5,500 all inclusive were ordered payable by the respondent to the applicant.

Following a motion concerning the validity of an infant settlement within a global personal injury settlement, the court addressed costs.

The plaintiffs had successfully obtained an order setting aside the global settlement after it was discovered that required judicial approval of the infant settlement had never been sought.

The failure arose from the plaintiffs’ former counsel breaching an undertaking to obtain approval, while defence counsel failed to follow up on the undertaking.

The court concluded that both sides bore responsibility for the procedural failure that rendered the settlement vulnerable.

In the circumstances, the court ordered that each party bear their own costs.

The plaintiff brought a motion to set aside registrar’s orders dismissing two personal injury actions as abandoned under Rule 48.15(1) after the claims were not served within the prescribed time.

The delay resulted from the plaintiff’s lawyer being misled by a former law clerk who falsely indicated the claims had been served and allegedly concealed dismissal notices.

Applying the factors articulated in Habib v. Mucaj and Reid v. Dow Corning Corp., the court considered the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendants.

The court found the delay was not deliberate, the motion was brought promptly once the issue was discovered, and the defendants failed to demonstrate actual prejudice.

The registrar’s dismissal orders were set aside and service of the statements of claim was validated.