Gregory M. Mulligan

The accused, who is HIV-positive with an undetectable viral load, was charged with three counts of aggravated sexual assault for failing to disclose her status to three different complainants before engaging in sexual activity.

For the count involving oral sex, the court found no realistic possibility of transmission and acquitted the accused.

For the count involving unprotected vaginal intercourse, the court found a realistic possibility of transmission existed despite the undetectable viral load, vitiating consent, and found the accused guilty.

For the final count, the court acquitted the accused because the Crown failed to prove beyond a reasonable doubt that a condom was not used, given the complainant's credibility issues.

Following an estate application seeking removal of an estate trustee, the parties resolved most substantive issues through minutes of settlement prior to the hearing.

The applicant obtained the respondent’s resignation as estate trustee and a release of claims against the estate, while the respondent retained proceeds of a life insurance policy paid to her as beneficiary.

The remaining dispute concerned entitlement to costs of the application.

The court found both parties achieved a measure of success through settlement and that a full hearing was unnecessary.

In the circumstances, it was appropriate that each party bear their own costs.

Following dismissal of a motion to vary a long-standing child support order after a half-day trial, the court considered costs under Rule 24 of the Family Law Rules.

The successful party sought approximately $14,684 in partial indemnity costs.

The court held that costs associated with earlier proceedings such as a settlement conference and Dispute Resolution Officer appearance could not be claimed because costs were not reserved to the trial judge.

The court also reduced travel time and mileage charges for out-of-town counsel, finding that absent evidence local counsel was unavailable such additional costs should not be borne by the opposing party.

Taking into account the respondent’s lack of preparation and the overall circumstances, the court awarded reduced costs.

The self-represented applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that terminated his supplemental benefits under s. 147(4) of the Workers' Compensation Act and replaced them with benefits under s. 147(2).

The applicant argued the Tribunal lacked jurisdiction to terminate the benefits and denied him procedural fairness by failing to provide notice or warn him of the downside risk of his appeal.

The Divisional Court dismissed the application, finding the Tribunal reasonably interpreted its home statute in determining the two benefit provisions are mutually exclusive.

The Court also found no breach of procedural fairness, as the applicant had initiated the appeal requesting the change in benefits.

At a status hearing under Rule 48.14(13) of the Rules of Civil Procedure, the defendants sought dismissal of the plaintiffs’ action for delay arising from a 2007 lawsuit relating to the purchase of a retirement home and alleged wrongdoing by vendors, real estate agents, and the plaintiffs’ former solicitor.

The court reviewed the procedural history, including delays in scheduling examinations for discovery and counsel availability, and applied the two‑part test requiring the plaintiffs to explain the delay and demonstrate an absence of prejudice to the defendants.

Although the litigation had progressed slowly and one plaintiff was medically incapable of discovery, the court found this was the first status hearing, the plaintiffs were not in breach of court orders, and a litigation timetable had been proposed.

The court concluded the plaintiffs should be given a “lifeline” to proceed.

A timetable was ordered requiring the trial record to be passed within twelve months.

The accused was charged with sexual exploitation, sexual assault, uttering threats, sexual assault against a second complainant, and mischief.

The evidence established that the accused engaged in sexual activity with a teenage complainant who resided in the household of his common-law partner and whom he treated as a father figure.

The court found that the accused occupied a position of trust or authority within the meaning of s. 153 of the Criminal Code and was therefore guilty of sexual exploitation despite the complainant being legally capable of consenting at the time.

The Crown failed to prove lack of consent for the sexual assault charge and failed to establish the alleged threats or a sexual assault against the second complainant.

The accused was also found guilty of mischief for intentionally pulling a vehicle’s parking brake while a teenager was driving.

The respondent to a motion to change child support sought a retroactive increase in support and reimbursement of s.7 expenses.

The court found that a “kitchen table” agreement reducing support was unenforceable due to lack of disclosure and legal advice.

Applying the principles in D.B.S. v. S.R.G., the court awarded retroactive child support for three years prior to the motion and imputed income to the payor after he failed to provide financial disclosure and voluntarily reduced his income.

Arrears were calculated for multiple years taking into account one child reaching the age of majority and attending post‑secondary education.

The court also ordered partial reimbursement of post‑secondary expenses and prospective contribution toward medical orthotics.

The accused was tried on a ten-count indictment alleging multiple assaults and sexual offences occurring between 1987 and 1992 against two complainants, including a child who lived with the accused while he was in a parental role.

The court assessed credibility in the context of historic allegations, applying principles from leading authorities on reasonable doubt, delayed disclosure, and evidence of adult witnesses recalling childhood events.

The court accepted the child complainant’s testimony regarding repeated sexual acts occurring during shared showers and found corroboration in surrounding circumstances and other witness evidence.

The court rejected several allegations involving the adult complainant due to inconsistencies and credibility concerns, applying a Vetrovec-type caution.

Convictions were entered on multiple counts relating to assault and sexual offences against the child complainant, while the remaining counts were dismissed.

In a motor vehicle personal injury jury trial, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act seeking to bar the plaintiff’s claim for non‑pecuniary damages.

Liability had been admitted and the jury awarded $125,000 in general damages and $150,000 for future care costs.

The court considered whether the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function within the meaning of the statutory threshold under Bill 198 (Regulation 381/03).

Evidence showed the plaintiff suffered ongoing ankle and neck problems and an exacerbation of pre‑existing clinical depression that significantly limited his daily functioning.

The court held that the combined physical and psychological impairments met the statutory threshold and substantially interfered with the plaintiff’s usual activities of daily living.

The defendants’ threshold motion was dismissed and the plaintiff was entitled to judgment in accordance with the jury’s verdict.

The plaintiff brought a motion to strike a paragraph of the defendants’ fresh as amended statement of defence asserting that the claim was statute-barred under the limitation period.

The plaintiff argued the issue had already been determined on an earlier motion and that the defendants were estopped from relitigating it.

The court held that it was not plain and obvious that the earlier endorsement constituted a final determination of the limitation issue, particularly given the limited reasons and absence of a formal order.

The court also noted that the plaintiff had taken significant fresh steps in the litigation after the defence was served and had not complied with earlier procedural timelines.

The motion to strike was dismissed, leaving the limitation defence to be determined on a fuller evidentiary record at summary judgment or trial.

The applicant brought a motion to change a prior spousal support order on the basis that his retirement constituted a material change in circumstances under s.17 of the Divorce Act.

He had voluntarily retired at age 62, reducing his income from over $200,000 to approximately $68,000 in pension income, and sought termination of his $2,000 monthly support obligation.

The court reviewed jurisprudence concerning voluntary retirement and variation of support, emphasizing that retirement alone does not automatically constitute a material change.

The court found the retirement was voluntary, undertaken for lifestyle reasons, and that the payor remained financially comfortable and had failed to plan for continuing support obligations despite rising income over many years.

The applicant therefore failed to establish a material change in circumstances warranting termination of spousal support.

The applicant sought indemnification from an insurer for defence costs incurred in a slip and fall action where the applicant had been added as an additional insured under a contractor’s liability policy.

The respondent insurer argued that the claim was statute‑barred under the Limitations Act, 2002 and that it had no duty to defend the applicant for claims outside the contractor’s policy coverage.

The court held that where there is no clear and unequivocal denial of coverage, the limitation period for a claim for indemnity for defence costs begins when the underlying action is resolved by judgment or settlement.

Applying the “true nature of the claim” analysis to the pleadings and discovery evidence, the court found the essence of the underlying action was negligence in snow and ice removal performed by the insured contractor.

As a result, the insurer owed a duty to indemnify the additional insured for its defence costs.

Sentencing following a jury verdict finding the accused guilty of dangerous driving causing serious bodily harm, failing to stop for police causing bodily harm, resisting arrest, and obstructing a peace officer after a prolonged police pursuit.

The offender fled police, drove at high speeds, evaded a spike belt, struck police vehicles during a rolling block, and caused bodily harm to an officer by running over the officer’s foot.

The court considered aggravating factors including the danger posed to officers and the public, the prolonged pursuit, and the resulting injury.

Mitigating factors included the absence of specific intent to injure, limited criminal record, psychiatric evidence of a delusional disorder possibly exacerbated by cannabis use, and compliance with strict bail conditions for several years.

The court held that the offences constituted a serious personal injury offence making a conditional sentence unavailable and imposed a custodial sentence.

The applicant mortgagee brought a motion to vary a restraint order under the Controlled Drugs and Substances Act to permit the sale of the subject property under power of sale.

The Crown consented to the sale, but the respondent owner opposed it, arguing the property had increased in value and disputing the mortgagee's claimed costs.

The court granted the motion to permit the sale, directing that the net proceeds be paid to the Crown.

The court declined to approve the mortgagee's claimed costs of over $388,000, directing that those funds be held by the Crown pending an assessment under Rule 58 and the final determination of the forfeiture proceedings.

Following a jury conviction for fraud over $5,000, the court determined the appropriate sentence for the offender who misrepresented ownership of shares in a publicly traded company and obtained $50,000 from the victim.

The court considered aggravating factors including breach of trust, premeditation, lack of restitution, and a prior similar conviction, as well as mitigating factors such as employment history, family responsibilities, and medical issues.

The offender sought a conditional sentence, while the Crown sought incarceration.

The court held that denunciation and general deterrence were paramount in fraud offences of this nature and concluded that a conditional sentence would be inappropriate.

A custodial sentence followed by probation and a restitution order was imposed.

The defendant lawyers brought a motion for security for costs and a stay of proceedings against the corporate plaintiff in a legal malpractice action.

The court granted a temporary stay due to the plaintiff's failure to file annual returns under the Corporations Information Act.

On the security for costs motion, the court found that while the corporate plaintiff had no assets, it failed to prove impecuniosity because its shareholders, who were also creditors, refused to fund the litigation but did not provide evidence that they lacked the means to do so.

The court ordered the plaintiff to post $60,000 in security for costs in three stages and stayed the action until the security is posted.

The plaintiffs sought leave to appeal an interlocutory order compelling the plaintiff to attend a defence vocational assessment with a non-health practitioner.

The central issue was whether the court has inherent jurisdiction to order such an assessment independent of section 105 of the Courts of Justice Act.

The court found conflicting authorities on this issue and determined it was open to serious debate and of general importance to the profession.

Leave to appeal to the Divisional Court was granted.

The applicant sought declarations that a transfer of pledged shares and a buy‑sell notice issued under a unanimous shareholders agreement were null and void.

The dispute arose from a promissory note and share pledge agreement relating to the purchase of shares in a private corporation.

The respondent claimed that the applicant defaulted on the promissory note, triggering its rights to transfer pledged shares and invoke a buy‑sell mechanism with a penalty provision.

The court found that no proper written notice of default had been proven in accordance with the parties’ contractual requirements.

As a result, the respondent could not rely on the penalty provision of the shareholders agreement, and the applicant’s requested declaratory relief was granted.

Following a consent resolution of an application challenging the validity of a power of attorney, the court determined the issue of costs.

The application had questioned the capacity of an elderly individual to execute a new power of attorney appointing different attorneys for property.

After reviewing evidence including a capacity assessment raising concerns about vulnerability, the court found the applicant had acted reasonably in bringing the application and in resolving the dispute by consent.

Applying principles from estate litigation jurisprudence permitting costs to be paid from the estate where reasonable concerns about capacity arise, the court ordered that both parties recover their legal costs from the incapable person's assets.

Following a family law motion determining which parent the parties’ child would reside with for school purposes, the successful party sought costs on a full indemnity basis.

The court considered the principles governing family law costs under Rule 24 of the Family Law Rules and guidance from the Court of Appeal regarding the purposes of costs.

Although the successful party sought approximately $11,920 including costs from a prior case conference, the court held that conference costs should not be included because they had not been reserved to the motions judge.

Taking into account the circumstances and submissions of both parties, the court awarded reduced costs payable from trust funds held from the sale of the matrimonial home.