M. McKelvey

In a medical malpractice action arising from hernia procedures, the defendants brought a motion during trial to exclude certain evidence the plaintiff sought to introduce.

The plaintiff sought to admit decisions from the College of Physicians and Surgeons of Ontario (CPSO) regarding his complaint, as well as anonymous online reviews of the defendant physician.

The court ruled the CPSO documents were strictly inadmissible under s. 36(3) of the Regulated Health Professions Act.

The court also excluded the online reviews, finding they were hearsay and did not meet the necessity and reliability requirements of the principled exception.

The accused was convicted of aggravated assault, robbery with a firearm, forcible confinement, and break and enter following a violent home invasion.

The court weighed the severe aggravating factors, including the trauma inflicted on the victims and the use of an imitation firearm, against mitigating factors such as the accused's limited criminal record and strict bail conditions.

Applying the principle of parity with co-accused who pleaded guilty, the court sentenced the accused to 5 years' imprisonment, less 8 months' credit for pre-trial custody and house arrest.

Following a trial where the plaintiff contractor obtained judgment for unpaid services, the parties could not agree on costs.

The plaintiff sought substantial indemnity costs based on an offer to settle.

The court found the offer did not trigger Rule 49.10 consequences because it was ambiguous regarding costs and, when properly calculating pre-judgment interest, the judgment was slightly less favourable than the offer.

The court awarded the plaintiff partial indemnity costs of $32,000 plus disbursements, taking into account proportionality, the defendants' partial success on a set-off, and a deduction for a mediation fee incurred due to the plaintiff's cancellation.

The self-represented Indigenous offender was sentenced for discharging a restricted firearm, possessing a loaded restricted firearm, and possessing a firearm while prohibited.

The offences occurred while the offender was on parole and involved firing multiple shots from a vehicle in a public place.

The court weighed the serious aggravating factors, including a lengthy criminal record and prior firearms prohibitions, against mitigating factors such as a difficult childhood, efforts at rehabilitation, and harsh pre-trial custody conditions.

A global sentence of 7 years was imposed, which was reduced to approximately 2.6 years of net additional custody after applying enhanced credit for pre-sentence custody, Charter breaches, and harsh lockdown conditions.

The accused was charged with multiple firearm offences after discharging a stolen handgun from a vehicle in a public parking lot.

He admitted to possessing the loaded restricted firearm without a license and while bound by prohibition orders, but argued he lacked the mens rea for the discharge offence due to extreme cocaine intoxication akin to automatism.

The court held that discharging a firearm under s. 244.2(1) is a general intent offence.

The accused failed to establish the defence of automatism, as he did not call expert evidence and his actions demonstrated an operating mind.

The accused was found guilty on three counts, with the fourth stayed under the Kienapple principle.

The applicant, charged with firearm offences, applied for a stay of proceedings alleging multiple Charter breaches during his arrest and subsequent detention.

The court found no breaches regarding the use of force during arrest, right to counsel, or bail delay.

However, the court found breaches of s. 8 for an unreasonable strip search, and s. 12 for excessive force by correctional staff following a suicide attempt and prolonged administrative segregation.

Despite these breaches, the court declined to grant a stay of proceedings, concluding that the breaches were not among the 'clearest of cases' and should instead be considered at sentencing if the applicant is convicted.

The appellant appealed his summary convictions for breach of recognizance and resisting a peace officer, arguing the trial judge erred in dismissing his Charter applications.

The appeal judge found that the trial judge erred in law by placing the onus on the defence to establish a section 8 Charter breach for a warrantless search.

The appeal judge concluded that the police violated the appellant's section 8 rights by seizing his wallet to obtain identification for a CPIC check during an investigative detention.

Applying section 24(2) of the Charter, the court excluded the identity evidence, allowed the appeal, set aside the convictions, and entered acquittals.

The plaintiff and defendant were neighbours involved in a long-standing dispute that culminated in a physical altercation.

The plaintiff sued for assault, battery, and intentional infliction of mental suffering.

The court found that the plaintiff was the aggressor and that the defendant's actions were justified as self-defence, as the force used was reasonably necessary and proportionate.

The plaintiff's action was dismissed, though damages were provisionally assessed.

The court determined the final damages and costs following a trial decision that awarded the applicant a 35% interest in the family home and other properties owned by the respondent.

The court calculated the net equity of the properties, finding the respondent owed the applicant $367,198.21.

The court also awarded the applicant partial indemnity costs of $46,383.87, which included a 20% reduction due to delays and adjournments caused by the applicant's failure to properly plead a joint family venture until late in the proceedings.

Following the death of their mother, three brothers brought an action on behalf of her estate against their fourth brother, alleging he misappropriated significant estate assets including real estate, securities, and gold through joint accounts and transfers.

The defendant claimed the assets were inter vivos gifts.

The Superior Court of Justice applied the presumption of resulting trust and found the defendant failed to rebut it, noting the mother's lack of capacity due to dementia and significant inconsistencies in the defendant's evidence.

The court granted a tracing order, awarding the estate a 69.5% interest in a property purchased by the defendant with the misappropriated funds, plus monetary damages.

The defendant's counterclaims for improvident sale of the family home and return of TFSA funds were dismissed.

The plaintiff brought a motion to set aside an order dismissing his motor vehicle accident claim for delay.

The plaintiff had been inadvertently left in the Zoom waiting room during the original motion.

The court set aside the dismissal order, finding that the plaintiff's absence was due to a technical mistake.

Reviewing the underlying motion to dismiss for delay, the court found the delay was largely attributable to the plaintiff's former counsel and the COVID-19 pandemic, was not intentional or contumelious, and did not create a substantial risk to a fair trial.

The motion to set aside was granted and a timetable was set for the action to proceed.

The plaintiff brought a motion to strike the defendant's jury notice in a motor vehicle accident action due to the suspension of civil jury trials during the COVID-19 pandemic.

The court found that the anticipated lengthy delay in scheduling a jury trial would cause significant prejudice to the plaintiff, including financial hardship and the cost of updating expert reports.

The court provisionally struck the jury notice, ordering that it be automatically reinstated if juries are being empanelled when the matter is called to trial.

The defendant, having been successful in the underlying action regarding its right to rebroadcast a 1984 interview, sought partial indemnity costs.

The plaintiff argued the defendant should be deprived of costs due to morally offensive conduct in rebroadcasting the program, which posed a safety risk to the plaintiff.

The court found no morally offensive behaviour, noting the defendant acted responsibly by removing the interview once alerted to the plaintiff's concerns.

The court awarded the defendant partial indemnity costs of $9,042.04, holding that sympathy for the plaintiff's situation is not a basis to refuse costs.

Following the release of reasons for judgment in a family law application, the respondent brought a motion under Rule 25(19) seeking to dismiss the application or order a new trial due to factual errors in the judgment.

The court acknowledged a minor factual error regarding the source of a down payment but found it did not alter the conclusion that there was a joint family venture and unjust enrichment.

The court also clarified the calculation of the applicant's 35% interest in the accumulated properties.

The respondent's motion was dismissed, as the remaining issues were either previously addressed or relied on new evidence that could have been adduced at trial.

In a family law proceeding, the court ordered both the applicant and the respondent to provide updated financial disclosure regarding their respective properties.

The parties were directed to exchange mortgage and line of credit statements, MPAC assessments, and details of any rental income received since December 2017.

Further submissions on the net equity of the properties were scheduled to follow the disclosure.

The applicant and respondent, unmarried cohabitants for 12 years, separated and sought division of accumulated real estate.

The applicant claimed a 50% interest in properties registered to the respondent based on unjust enrichment and joint family venture.

The court found the applicant made a modest financial contribution to the family home and contributed to the maintenance of investment properties and the family home, allowing the respondent to earn substantial income.

The court concluded the criteria for unjust enrichment and joint family venture were met and awarded the applicant a 35% interest in the family home and other properties, less the equity in a condominium owned by the applicant.

The defendants were found guilty of exercising control over the movements of a complainant to provide sexual services, receiving a material benefit, and advertising sexual services.

One defendant was also found guilty of trafficking MDMA.

The court found that while the defendants did not coerce the complainant into the sex trade, they exploited her serious drug dependency for financial gain.

The court sentenced A.M. to a global term of 24 months and M.P. to a global term of 18 months, ordered forfeiture of their cellphones as offence-related property, and granted pre-trial custody credit including for house arrest but not for curfews.

The accused applied for a review of her detention order on charges including robbery with a firearm and kidnapping, arguing a material change in circumstances based on a new release plan with two sureties and a delay in medical treatment.

The court admitted the new sureties as fresh evidence but found the accused failed to meet her reverse onus on both the secondary and tertiary grounds.

The court held that the proposed release plan could not adequately address the risk of reoffending given the accused's extensive criminal record and history of breaching bail conditions.

The application for bail review was dismissed.

The plaintiff brought a motion to strike the jury notice in a motor vehicle accident action, arguing that civil jury trials would be unavailable for the foreseeable future due to the COVID-19 pandemic and that a jury would not represent a cross-section of the community.

The court dismissed the motion, adopting a 'wait and see' approach to allow the newly implemented Central East Region protocol for civil trials to evolve.

The court found no evidence that jury composition had deteriorated and held that striking the jury based on anticipated delay was premature.

The plaintiff suffered a traumatic brain injury after being hit by a golf ball hit by the defendant.

The plaintiff brought a motion to increase the damages claimed and to strike the jury notice due to anticipated trial delays caused by the COVID-19 pandemic.

The court granted the amendment to damages on consent.

However, the court dismissed the motion to strike the jury notice, adopting a 'wait and see' approach to determine if the region's new civil trial protocol could accommodate urgent civil jury trials, without prejudice to the plaintiff's right to renew the motion later.