Alexander D. Kurke

The decision addresses the admissibility of utterances made by the accused, M.D., to police at the time of his arrest, in the context of a 7-count indictment involving intimate partner violence and firearms offences.

The court considers whether the statements were voluntary and whether the accused’s Charter rights to counsel and silence were breached.

After reviewing the evidence and credibility of the witnesses, the court finds that the accused was properly informed of his rights, that his statements were voluntary, and that there was no improper inducement, oppression, or police trickery.

The accused’s Charter application is dismissed, and the utterances are ruled admissible.

The applicant, Chad Rolling, sought a stay of proceedings on the basis that his right to be tried within a reasonable time under section 11(b) of the Charter was breached.

The court found that, after deducting periods of delay attributable to the defence, the net delay did not exceed the 30-month ceiling established in R. v. Jordan.

The application was dismissed.

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying his claim for catastrophic impairment benefits.

The LAT had found that the appellant's physician, Dr. Ofokansi, provided only a conclusory opinion on the OCF-19 form without supporting analysis or medical data.

The appellant argued the LAT should have considered the evidence of his psychologist, Dr. Reesor.

The Divisional Court dismissed the appeal, holding that section 45 of the Statutory Accident Benefits Schedule requires a catastrophic impairment assessment to be conducted by a physician.

Since the physician's assessment was entirely conclusory and entitled to no weight, the psychologist's evidence alone was insufficient to establish the claim.

The appellant appealed a decision refusing to certify a class action against a temporary help agency for alleged employee misclassification.

The motion judge had found that the proposed common issues regarding whether the agency was an employer under the Employment Standards Act or at common law lacked sufficient commonality and required individual determinations.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that there was no systemic commonality among the putative class members' arrangements.

Leave to appeal the costs award of $333,114.05 was also denied.

The applicant sought judicial review of an HRTO decision that struck the personal respondents and dismissed his human rights application at a summary hearing.

The Divisional Court found the HRTO's decision to strike the personal respondents was reasonable, as the corporate respondent accepted vicarious liability.

However, the court held the HRTO unreasonably dismissed the application by failing to justify its conclusion that there was 'no evidence' of discrimination despite the applicant's factual assertions.

Furthermore, the HRTO breached procedural fairness by ordering a summary hearing after a previous Vice-Chair had already directed a merits hearing which had commenced.

The application for judicial review was granted and the matter remitted to the HRTO for a merits hearing.

The moving party brought a motion for leave to appeal a decision dated January 23, 2025.

The Divisional Court dismissed the motion for leave to appeal and awarded partial indemnity costs to the responding party in the amount of $3,210.33.

The moving party sought leave to appeal a decision of the Ontario Land Tribunal.

The Divisional Court dismissed the motion for leave to appeal.

No costs were awarded as the responding party did not provide a costs outline.

The applicant sought judicial review of a tribunal decision that imposed a 30-day suspension and conditions on a liquor licence rather than revoking it.

The tribunal found the licensee had breached conditions and failed to facilitate an inspection, but concluded a suspension was appropriate given the principal's health issues and lack of prior warnings.

The Divisional Court dismissed the application, finding the tribunal's penalty and reliance on the public interest were reasonable.

The moving party sought an extension of time to review a motion judge's decision under s. 21(5) of the Courts of Justice Act.

The motion judge had previously dismissed a motion to extend the time to seek judicial review of a Human Rights Tribunal of Ontario decision, finding no apparent merit to the application because the moving party lacked standing and the challenged program was protected under s. 14(1) of the Human Rights Code.

The Divisional Court panel agreed with the motion judge, finding no error in principle and a reasonable result, and dismissed the motion.

The moving parties sought leave to appeal a decision granting the responding party leave to commence an action under s. 138.8 of the Securities Act.

The Divisional Court granted leave to appeal, identifying specific questions regarding whether the motions judge erred in holding that the Court of Appeal erred in a previous decision, and whether such an error rendered the decision unsafe.

Costs of the motion were fixed at $20,000, payable in the discretion of the appeal panel.

The moving party brought a motion for leave to appeal a Superior Court of Justice decision dated June 24, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The moving parties sought leave to appeal a decision of MacLeod RSJ dated May 17, 2024.

The Divisional Court denied the motion for leave to appeal without costs.

This case involves two applications for dependant support under the Succession Law Reform Act and an application to collapse testamentary trusts.

The deceased, John Anthony Czerkas, died leaving two Wills.

His common-law spouse, Louann Culbert, and his daughter, Laura-Lea Czerkas, each sought dependant support.

Laura-Lea also sought to collapse the trusts established for her benefit in the Wills.

The court found Louann Culbert to be a dependant and granted her significant lump-sum support of $925,000, finding that the deceased had not made adequate provision for her.

The court found Laura-Lea Czerkas to be a dependant but dismissed her application for additional dependant support, concluding that the deceased had adequately provided for her in his Wills through substantial trusts.

However, the court granted Laura-Lea's request to collapse the testamentary trusts, allowing her immediate access to the funds based on the rule in Saunders v. Vautier.

The accused, Donovan McEwan, was charged with five offences: sexual assault, communicate with a person under 18 to facilitate an offence, obtain the sexual services of a person under 18, procuring, and possession of child pornography.

A sixth charge, forcible confinement, was withdrawn.

The court found the complainant's testimony credible despite inconsistencies, attributing them to drug addiction and trauma.

The court found a power imbalance due to the complainant's drug dependency on the accused, negating consent for sexual acts.

The accused was convicted of sexual assault, internet luring, obtaining sexual services of a person under 18, and possession of child pornography.

He was acquitted of procuring due to insufficient evidence that he caused or induced the complainant to offer sexual services for another.

The appellant brought a motion under s. 21(5) of the Courts of Justice Act to set aside or vary an order of a single judge of the Divisional Court requiring him to pay outstanding costs and post security for costs for his family law appeals.

The appellant sought to introduce his 2022 income tax return as fresh evidence to show a dramatically reduced income.

The Divisional Court dismissed the motion to introduce fresh evidence, applying the Palmer test.

The court also dismissed the motion to set aside the security for costs order, finding no error of law or palpable and overriding error in the motion judge's exercise of discretion.

The appellants appealed a motion judge's order requiring them to produce documents protected by solicitor-client and settlement privilege.

The underlying action involved allegations of professional negligence against the respondents regarding their representation in prior litigation.

The Divisional Court allowed the appeal, finding that the motion judge failed to provide sufficient reasons to justify the abrogation of privilege.

The lack of reasons prevented meaningful appellate review of whether privilege had been waived or if the pleadings were sufficient to destroy the privileges.

The portion of the order requiring production of the privileged documents was set aside.

The appellant developer constructed three apartment towers and subsequently registered a condominium plan converting two towers into 330 condominium units.

The Municipal Property Assessment Corporation (MPAC) issued an omitted assessment for the original property, and later issued 331 omitted assessments for the newly created condo units and the remaining multi-residential tower.

The appellant appealed to the Assessment Review Board, arguing MPAC lacked authority under s. 33(1) of the Assessment Act because the physical land had already been assessed.

The Board upheld the assessments, finding the condominium registration created new legal parcels of land.

The Divisional Court dismissed the developer's appeal, holding that the Board correctly interpreted 'land' and did not breach procedural fairness.

The applicant subcontractor sought judicial review of an adjudicator's determination under the Construction Act dismissing its claim for unpaid invoices.

The adjudicator had dismissed the claim on the basis that the contractor's invoices to the owner were not 'proper invoices', an issue neither party had raised or made submissions on.

The Divisional Court held that deciding the case on an unraised issue without allowing submissions was a breach of procedural fairness.

The application was allowed and the matter remitted to the adjudicator.

The applicant sought judicial review of an Assessment Review Board decision denying a municipal tax refund for a hotel property that was shut down for construction.

The applicant claimed relief under the demolition and vacant property provisions of the Municipal Act, 2001.

The Divisional Court dismissed the application, finding the Board reasonably concluded that the applicant failed to properly appeal the 2016 demolition decision and that the 2017 claim failed because the demolition occurred in the prior year.

The court also found no breach of procedural fairness.

The plaintiff tripped and fell at the defendant hospital, which admitted liability for the hazard.

The plaintiff claimed the physical injuries from the fall prevented her from caring for her terminally ill husband at home, forcing his return to the hospital where he died.

She sought damages for severe psychological injury (PTSD) stemming from her guilt over failing to fulfill his dying wish.

The court dismissed the claim, finding the plaintiff failed to establish factual causation, as her physical pain likely resulted from the unreasonable strain of caring for her husband alone, and her psychological symptoms were more likely attributable to pre-existing depression and complex bereavement.

The court further held that the alleged chain of causation was too remote to establish legal foreseeability.