Bourgoin Estate v. Ontario (Attorney General)
The material before Justice Gillese was insufficient to warrant the drastic remedy of removing counsel; permitting motions in writing at Mrs. Marsden's request was not erroneous; the order was varied to state it was without prejudice to re‑apply on further and better material, including sworn medical evidence, prior...
Source-derived case information.
- Citation
- 2010 ONCA 10
- Parties
- Appellant (mover of Motion): Estate of Eva Bourgoin - Deceased; Respondent: Attorney General of Ontario; Respondent: Maple Villa Long Term Care Centre
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 11 January 2010
- Procedural Posture
- Civil Appeal / Review of Interlocutory Order (motion Before Court of Appeal)
- Outcome
- Review dismissed in part and order varied; no order as to costs
- Legal Topics
- Removal of Counsel, Motions Heard in Writing, Reapplication on Further Material, Medical Evidence for Accommodation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Estate of Eva Bourgoin - Deceased
Appellant (mover of Motion)
Attorney General of Ontario
Respondent
Maple Villa Long Term Care Centre
Respondent
Procedural Posture
Civil Appeal / Review of Interlocutory Order (motion Before Court of Appeal)
Legal Issues
- 1 Whether a single judge may remove counsel for a party
- 2 Whether the material before the single judge was sufficient to remove or exclude counsel
- 3 Whether motions may properly be heard in writing as an accommodation
Ratio Decidendi
The material before Justice Gillese was insufficient to warrant the drastic remedy of removing counsel; permitting motions in writing at Mrs. Marsden's request was not erroneous; the order was varied to state it was without prejudice to re‑apply on further and better material, including sworn medical evidence, prior to the appeal hearing.
Court Disposition
Review dismissed in part and order varied; no order as to costs
Orders
- Order of Justice Gillese dated May 20, 2009 upheld insofar as motions may be heard in writing at Mrs. Marsden's request
- Order of Justice Gillese varied to provide that it 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
Full Case Text
Judgment text and source record
1 paragraphs
Bourgoin Estate v. Ontario (Attorney General) Collection Decisions of the Court of Appeal Date 2010-01-11 Neutral citation 2010 ONCA 10 Docket numbers C50197, M37708 Judges Simmons, Janet M.; MacFarland, Jean Louise; LaForme, Harry Smith Subject Civil Decision Content CITATION: Bourgoin Estate v. Ontario (Attorney General), 2010 ONCA 10 DATE: 20100111 DOCKET: M37708 (C50197) COURT OF APPEAL FOR ONTARIO 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) 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.