Court File and Parties

Citation: Bourgoin Estate v. Ontario (Attorney General), 2010 ONCA 10 Date: 2010-01-11 Docket: M37708 (C50197) Court of Appeal for Ontario

Before: Simmons, MacFarland and LaForme JJ.A.

Between:

Estate of Eva Bourgoin – Deceased Appellant (Mover of Motion)

and

Attorney General of Ontario Maple Villa Long Term Care Centre Respondent (Respondent to Motion)

Counsel: Anne Marsden, for the appellant Estate of Eva Bourgoin Jim W. Smith, for the respondent Attorney General

Heard by teleconference and released orally: January 7, 2010

Motion for review of the order of Justice Eileen Gillese dated May 19, 2009.

Endorsement

[1] Our role today is to review the order of Justice Gillese dated May 20, 2009. Although we are inclined to the view that a single judge of the court could remove counsel for a particular party, we need not decide that issue. In our view, the material before Justice Gillese was not sufficient to warrant the drastic remedy of removing counsel. The moving party had not herself sworn an affidavit, nor had she filed a medical report confirming that Ms. McKay could be a trigger to her post traumatic stress disorder.

[2] In these circumstances, we see no error in the orders made by Justice Gillese permitting motions in this court to be heard in writing at Mrs. Marsden's request and preserving Mrs. Marsden's right to seek the same relief from the panel who will hear the appeal. However, we think it appropriate to also vary the order of Justice Gillese to provide that her order is without prejudice to Mrs. Marsden’s right to re-apply on further and better material either to a single judge or any panel prior to the appeal hearing. To the extent that Mrs. Marsden obtains a medical report confirming her assertions, which she should confirm under oath, we would urge the respondent to make use of its considerable resources to achieve an appropriate accommodation

[3] No order as to costs.