Alexander D. Kurke

The applicant, a lawyer, brought an application seeking a judicial inquiry into the conduct of opposing counsel, who had reported concerns about the applicant's mental health and competence to the Law Society of Ontario.

The applicant also sought to stay the Law Society's investigation.

The court summarily dismissed the application as frivolous under Rule 2.1.01, finding it had no jurisdiction to order a judicial inquiry and that the Law Society is the proper forum for determining a lawyer's competence.

The appellant, a former police chief, appealed his conviction for sexual assault against a subordinate officer.

He argued the trial judge erred by rejecting defence expert evidence on document sequencing of the complainant's notebook and by misapplying the W.(D.) test when assessing credibility.

The Superior Court of Justice dismissed the appeal, finding the trial judge was entitled to reject the expert evidence as unreliable and had properly applied the W.(D.) framework in finding the complainant's evidence compelling and rejecting the appellant's bare denial.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000.

The moving parties brought a motion for leave to appeal the orders of the motion judge dated October 3 and 5, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents jointly in the amount of $10,000.

The appellant brought a motion for leave to appeal the order of Gilmore J. dated July 26, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party, fixed in the amount of $7,000.

The applicant mother sought ongoing and retroactive child and spousal support after unilaterally relocating with the children from British Columbia to Ontario.

The respondent father, who incurred extraordinary expenses to exercise parenting time across the country, sought a reduction in support and the imputation of income to the applicant.

The court imputed a minimum wage income to the applicant, terminated spousal support as of December 31, 2022, and capped the respondent's income at $150,000 for child support purposes under section 4 of the Guidelines to account for his high access costs.

The respondent was ordered to pay $103,204 in retroactive child support, while the applicant was ordered to repay $8,645 in overpaid spousal support.

The moving party sought an extension of time to file an appeal from a decision of the Social Benefits Tribunal under the Ontario Disability Support Program Act, 16 or 17 days beyond the 30-day deadline.

The responding party argued there is no jurisdiction to extend the time for commencing such an appeal.

The court directed that the issue of jurisdiction to extend time be heard by a full panel of the Divisional Court, noting significant questions involving access to justice and the interplay between the ODSPA, the Courts of Justice Act, and the Rules of Civil Procedure.

This decision addresses a Stage 2 application under sections 276 and 278.93 of the Criminal Code regarding the admissibility of a complainant's prior sexual activity in a sexual assault and forcible confinement trial.

The accused sought to adduce evidence of a prior sexual encounter ("October incident") and the complainant's "comfort" level with the accused.

The Crown also sought to adduce evidence about a "FaceTime interlude" where the accused allegedly threatened to expose the complainant.

The court granted the Crown's application for the FaceTime interlude, allowing general contours but prohibiting details.

The accused's application regarding the "October incident" and "comfort" was dismissed, finding its probative value slight and substantially outweighed by the danger of prejudice and the risk of encouraging "twin myth" reasoning, which links prior sexual activity to consent or credibility.

The applicant sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

The total delay from charge to anticipated trial date exceeded the 30-month Jordan ceiling for Superior Court matters.

The Crown argued that the delay was due to exceptional circumstances, including the COVID-19 pandemic and the co-accused's need for new counsel, which necessitated an adjournment.

The applicant had opposed the adjournment and offered to proceed if severed from the co-accused.

The court found that the net delay exceeded the ceiling and that the Crown failed to rebut the presumption of unreasonableness.

While acknowledging the impact of COVID-19 and the importance of joint prosecutions, the court determined that the Crown had a duty to sever the applicant's trial when the joint prosecution compromised his s. 11(b) rights and unreasonably extended the prejudice he was suffering.

The Crown's failure to sever was deemed a failure to take reasonable steps to avoid the delay.

Consequently, the court found a breach of the applicant's s. 11(b) right and ordered a stay of proceedings.

The accused, charged with drug trafficking and related offences, brought an application for further disclosure of materials related to the Information to Obtain (ITO) for a search warrant.

The accused sought these materials to challenge the grounds for his arrest outside the searched apartment.

The court dismissed the application, finding that the requested materials, including confidential informant notes and database searches, were clearly irrelevant to the grounds for arrest and amounted to a fishing expedition.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that dismissed his eight complaints of discrimination and declared him a vexatious litigant.

The complaints primarily alleged discrimination based on ancestry and place of origin due to poor customer service.

The Divisional Court dismissed the application, finding that the Tribunal's dismissal of the complaints was reasonable as they were frivolous on their face.

The court also held that the Tribunal's process was procedurally fair and its declaration of the applicant as a vexatious litigant was justified given his history of bringing multiple meritless proceedings.

The applicant, charged with drug trafficking offences, sought standing to challenge a police search of an apartment where he was staying and the seizure of items from his person upon arrest outside.

The court applied the Edwards factors and found the applicant had no reasonable expectation of privacy in the apartment, as he was merely a houseguest with no control over the premises.

However, the court granted standing to challenge the seizure of drugs and money found on or near his person at the time of his arrest.

The self-represented appellant, an OPCA litigant, was convicted of failing to appear in court.

During his trial, the judge excluded him from the courtroom twice due to his obstructionist and pseudo-legal behaviour, invoking s. 650(2)(a) of the Criminal Code.

After the Crown closed its case, the trial judge immediately proceeded to find the appellant guilty without offering him the opportunity to make full answer and defence under s. 650(3).

On appeal, the Superior Court found that while the exclusion was justified, the failure to offer the appellant the opportunity to present a defence constituted a miscarriage of justice.

The conviction was quashed and a new trial ordered.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision finding it discriminated against a resident with disabilities by implementing a strict COVID-19 visitation policy in its congregate care setting.

The Divisional Court held the HRTO's decision was unreasonable, finding the policy was based on public health guidance rather than presumed characteristics of persons with disabilities, and thus did not constitute prima facie discrimination.

Furthermore, the court found the HRTO unreasonably concluded the applicant failed in its duty to accommodate, as it ignored the fluid nature of pandemic guidance and the reasonable alternatives offered.

The application for judicial review was allowed and the HRTO decisions were set aside.

The applicant union sought judicial review of an arbitration award that upheld the employer's random drug testing policy for safety-sensitive positions at the airport.

The Divisional Court found the arbitrator's decision unreasonable because it departed from established arbitral jurisprudence without justification.

Specifically, the arbitrator upheld the policy without any evidence of a workplace drug problem at the airport, relying instead on evidence from a different case involving a different workplace.

The application for judicial review was granted, the award was set aside, and the grievance was remitted to a new arbitrator.

The applicant union sought judicial review of an arbitration award that dismissed a grievance concerning the wage progression of an Electrical Maintenance Technician.

The arbitrator had found that the employer could require a Red Seal Ticket for advancement to the highest pay rate, despite the collective agreement being silent on the issue.

The Divisional Court quashed the award, finding it unreasonable because the arbitrator failed to meaningfully address the conflicting evidence and arguments regarding the interpretation of the collective agreement and past practice.

The matter was remitted to a new arbitrator.

The appellant appealed an order dismissing her request to remove the court-appointed Liquidator of a corporation and approving the Liquidator's accounts.

The appellant argued the Liquidator was improperly aligned with the respondent Estate and that the motion judge should have drawn an adverse inference from the lack of evidence explaining communications between them.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or his refusal to draw an adverse inference, and upheld the approval of the accounts.

The appellant sued her former family lawyer for negligence, alleging the lawyer failed to properly advise her regarding spousal support and business valuations when negotiating a separation agreement.

The motion judge stayed the civil action as an abuse of process, ruling that the appellant must first attempt to set aside the separation agreement under the Family Law Act.

The Divisional Court dismissed the appeal, confirming that the Family Law Act is a complete code for spousal support claims and the civil system should not be used to circumvent the statutory regime governing matrimonial disputes.

The appellant brought a motion before a panel of the Divisional Court to set aside the dismissal of his appeal by a case management judge.

The appeal had been dismissed for delay after the appellant repeatedly failed to comply with case management scheduling orders to perfect his appeal.

The panel dismissed the motion, finding that the case management judge had jurisdiction to dismiss the appeal without a formal motion, that filing an amended notice of appeal does not restart the time for perfection, and that there was no reasonable apprehension of bias.

The applicant sought judicial review of an Information and Privacy Commissioner decision ordering a hospital to disclose a linen services contract and a memorandum summarizing its terms.

The applicant argued the records contained financial information supplied in confidence during a bid process, exempting them from disclosure under s. 17(1)(a) of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the application, finding the Adjudicator reasonably concluded that the contract was the product of negotiations and the information was mutually generated, not supplied in confidence.