Alexander D. Kurke

The applicant railway company sought judicial review of an arbitration award that upheld a union grievance concerning work jurisdiction.

The arbitrator found that the applicant improperly assigned yard service work to a road service conductor-only crew, contrary to the collective agreement.

The Divisional Court applied the reasonableness standard of review and concluded that the arbitrator's interpretation of the collective agreement and application to the specific facts was intelligible, transparent, and justified.

The application for judicial review was dismissed.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy and ordering their eviction for failing to comply with a previous Board order.

The previous order required the tenants to remove items, including a fence made of sticks and pinecones, from the common area adjacent to their unit.

The tenants argued they were denied procedural fairness, the Board was biased, and the Board applied the wrong legal test.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness as the landlord was entitled to apply for eviction without notice under section 78 of the Residential Tenancies Act after the tenants breached the conditions of the previous order.

The court also found no evidence of bias and held that the Board's findings of fact were reasonable and supported by the evidence.

The moving parties brought a motion for leave to appeal the order of Desotti J. dated July 30, 2020.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, costs were awarded to the responding party in the amount of $2,200.

The plaintiff sued the estate of a deceased businessman, alleging he made an oral personal promise to pay a $330,432 debt owed to the plaintiff by an insolvent company he controlled.

The plaintiff claimed it provided consideration by forbearing from litigation and continuing to supply parts.

The court dismissed the claim, finding that the deceased only explained his intention to recapitalize the company from the sale of another business, which did not constitute a binding contract or personal guarantee.

Furthermore, the court found no consideration was given, as the deceased never requested forbearance from litigation.

The appellant appealed a motion judge's decision staying her application for sole custody of an Indigenous child under the Children's Law Reform Act.

The child was placed with the appellant pursuant to a Customary Care Agreement under the Child, Youth and Family Services Act.

The motion judge stayed the custody application under section 103 of the CYFSA, finding that the customary care agreement ousted the custody application.

The Superior Court dismissed the appeal, holding that while section 103 may not strictly apply to customary care agreements, the legislative intent of the CYFSA prioritizes customary care for Indigenous children, and the court's inherent jurisdiction under section 106 of the Courts of Justice Act properly supported the stay.

The applicant brought a motion for a stay of proceedings, arguing that the delay to trial exceeded the 30-month ceiling under s. 11(b) of the Charter.

The central issue was whether the delay clock started when the information was sworn or seven months later when the applicant was arrested.

The court held that the clock begins upon arrest if the accused is unaware of the charges.

After deducting defence-caused delays, the net delay was under 30 months.

The application was dismissed.

The accused was tried on a three-count indictment alleging sexual interference, invitation to sexual touching, and sexual assault involving a child complainant during a sleepover at the home of the complainant's friend.

The central issue was credibility and reliability, with the defence asserting that the incident never occurred and that the complainant had never slept over at the residence.

Applying the burden of proof principles in Lifchus and the credibility framework in W.(D.), the court accepted the complainant’s detailed evidence, rejected the denials of the accused and supporting defence witnesses, and found that the corroborative evidence supported the complainant on key surrounding circumstances.

Findings of guilt were entered on all three counts.

The applicant sought a bail review after being detained on secondary and tertiary grounds for serious charges including attempted murder and numerous firearm offences.

The applicant argued for release based on an improved bail plan incorporating an ankle bracelet and the health risks posed by the COVID-19 pandemic in custody.

The court found that neither the ankle bracelet nor the general risks of COVID-19 constituted a material change in circumstances sufficient to overcome the significant public safety and confidence in justice concerns, especially given the sureties' prior inability to control the applicant.

The application for bail review was dismissed.

The applicant sought a bail review after being detained on primary, secondary, and tertiary grounds for multiple charges including assault, sexual assault, and breach of probation.

The applicant argued the Justice of the Peace erred in rejecting the initial surety and that new circumstances, including a revised release plan with a second surety, ankle bracelet monitoring, and the COVID-19 pandemic, warranted release.

The court dismissed the application, finding no error in the initial surety rejection and that the new plan, despite the pandemic, did not sufficiently address the flight risk, likelihood of re-offending, or maintain confidence in the administration of justice.

The accused was charged on a five-count indictment with three allegations of sexual assault, a charge of assault causing bodily harm, and another charge of simple assault against the complainant, his former track athlete and later wife.

The court applied the W.(D.) test for credibility and reliability, noting the significant time lapse since the incidents.

The court dismissed two sexual assault counts (Counts 1 and 5) due to insufficient detail and conflicting accounts, which raised reasonable doubt.

However, the court found the accused guilty beyond a reasonable doubt on one count of sexual assault (Count 2) related to an incident at a hotel when the complainant was 16, rejecting the accused's evasive testimony.

The court also found the accused guilty on one count of assault causing bodily harm (Count 4) for pushing the complainant down stairs, causing her hand to go through glass, and on one count of assault (Count 3) for twice forcing her naked out of their apartment in winter conditions.

The court emphasized the accused's manipulative and controlling behavior throughout the marriage as corroborative evidence of his animus.

The employer applied for judicial review of an arbitrator's decision allowing a union grievance over Accidental Death benefits.

A firefighter died of lung cancer, an occupational disease presumed work-related under the Workplace Safety and Insurance Act.

The employer's insurance carrier denied the claim based on an illness/disease exclusion clause.

The arbitrator found the collective agreement obligated the employer to provide Accidental Death benefits, which at law includes occupational diseases, and that the insurance policy's exclusion could not diminish this bargained benefit.

The Divisional Court applied the Vavilov reasonableness standard and dismissed the application, finding the arbitrator's interpretation of the collective agreement and the insurance policy was justifiable, transparent, and intelligible.

The applicants, jointly charged with historical sexual offences, brought applications for a stay of proceedings alleging unreasonable delay under s. 11(b) of the Charter.

The total delay was approximately 35 months.

The court deducted periods of defence-caused delay, reasonable judicial reserve time, and exceptional circumstances arising from one applicant's Legal Aid application process.

After deductions, the net delay for both applicants fell well below the 30-month Jordan ceiling.

As the applicants failed to demonstrate a sustained effort to expedite the proceedings, the applications were dismissed.

The applicant and respondent separated in 2014 and have twin boys.

The applicant sought retroactive and ongoing child support, arguing the respondent was intentionally underemployed, and requested contribution to the children's rep hockey expenses under section 7 of the Federal Child Support Guidelines.

The court imputed income to the respondent for 2016 and 2019, finding he was intentionally unemployed in 2016 to assist a new partner.

The court ordered the respondent to pay child support arrears, ongoing support, and a capped contribution to the children's rep hockey expenses, balancing the children's interests with the respondent's modest means.

The appellant insurer appealed a License Appeal Tribunal reconsideration decision that found the insurer provided inadequate reasons for denying the respondent's treatment plans and requesting an insurer's examination under the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, holding that the Executive Chair reasonably concluded the original adjudicator erred in law by accepting boilerplate reasons.

The court affirmed that an insurer must provide meaningful reasons to permit an insured to decide whether to challenge a denial.

The applicant insurer sought judicial review of a FSCO Director's Delegate decision which held that the insurer's notice letters seeking repayment of income replacement benefits were invalid.

The insurer had attempted to claw back overpayments after the respondent became eligible for CPP benefits.

The Divisional Court dismissed the application, finding it was reasonable for the Delegate to conclude the notices were defective for claiming beyond the 12-month statutory cap and for failing to be substantially correct.

The insurer was ordered to refund the clawed-back monies with interest.

The Crown defendants moved to strike the plaintiff's civil claim alleging negligence, Charter breaches, and bad faith arising from the Crown's intervention in a private prosecution and the OIPRD's handling of a police complaint.

The Superior Court of Justice granted the motion and struck the claims without leave to amend.

The court found the claims against the Crown were barred by issue estoppel and prosecutorial immunity, while the claims against the OIPRD constituted an impermissible collateral attack and were barred by statutory immunity under the Police Services Act.

The appellant appealed his conviction for operating a motor vehicle with over 80 mgs of alcohol in 100 mls of blood ("Over 80"), asserting breaches of his ss. 8 and 10(b) Charter rights and insufficient trial judge reasons.

The court dismissed the appeal, finding no breach of the section 8 Charter right regarding the "forthwith" Approved Screening Device (ASD) demand, and either no breach or only a technical breach of the section 10(b) right to counsel, which would not warrant exclusion of evidence under s. 24(2).

The court also found the trial judge's reasons sufficient regarding reasonable and probable grounds for arrest"as soon as practicable" breath testing, and the destruction of dash-pad notes.

The appellant appealed his conviction for sexual assault, arguing unreasonable delay under s 11(b) of the Charter, lack of consent, and insufficient identification evidence.

The summary conviction appeal court dismissed the Charter and consent grounds but found that the trial judge erred in relying on DNA evidence because the Crown failed to properly authenticate the hospital records and establish the chain of custody for the rape kit.

As the trial judge relied heavily on this inadmissible DNA evidence to establish identity, the conviction was quashed.

However, because there was other circumstantial identification evidence, a new trial was ordered rather than an acquittal.

The third party, Her Majesty the Queen in Right of Ontario, represented by the Ministry of Natural Resources and Forestry (MNR), brought a motion for summary judgment to dismiss a third-party claim by the defendant, 2065943 Ontario Ltd. The defendant's claim alleged negligence against the MNR related to signage and property maintenance in a provincial park, following an incident where the plaintiff was injured.

The MNR argued that the claim was one of occupiers' liability, requiring notice within ten days under the Proceedings Against the Crown Act (PACA), which the defendant failed to provide.

The court found that the defendant's claim was indeed an occupiers' liability claim, subject to the strict 10-day notice period, and that the defendant's arguments regarding discoverability, negligence vs. occupiers' liability, and lack of prejudice to the Crown were unpersuasive.

The motion for summary judgment was granted, and the third-party claim against the MNR was dismissed.

The accused was charged with child luring and making child pornography involving his 13-year-old daughter.

The daughter took photographs of herself in a bra and panties, which she sent to her father, allegedly at his suggestion for modelling work.

The court found that the photographs, while inappropriate, did not meet the legal definition of child pornography as they lacked a dominant characteristic of sexual purpose or intent to cause sexual stimulation.

Regarding the child luring charge, the court found the accused's conduct selfish and underhanded in encouraging his daughter to take and send photos and to conceal these communications from her mother.

However, the Crown failed to prove beyond a reasonable doubt that the accused's purpose was to facilitate the making of child pornography or that he repeatedly pressured her via telecommunication.

Consequently, the accused was found not guilty on both counts.