Michael K. McKelvey

The appellant physician in a medical malpractice action appealed a motion judge's decision denying leave to file late-served causation and damages expert reports under Rule 53.08.

The motion judge had applied a strict conjunctive test, finding no reasonable explanation for the delay despite acknowledging a lack of prejudice.

The Divisional Court allowed the appeal, holding that the motion judge erred by failing to apply a balanced approach that considers the overall interests of justice, as established in recent jurisprudence.

The Court found that the delay was not tactical, did not prejudice the respondents or delay the trial, and that denying leave would disproportionately prejudice the appellant's ability to defend the action on its merits.

The applicant sought judicial review of WSIAT decisions that dismissed his appeals regarding the quantification of his benefits for a workplace knee injury.

The applicant raised numerous procedural and substantive objections, including allegations of Charter and human rights violations, bias, and unreasonable findings of fact.

The Divisional Court applied the reasonableness standard and dismissed the application, finding that the WSIAT's procedures were fair, its jurisdictional findings were correct, and its factual determinations were reasonable given the evidence and the applicant's refusal to participate in an oral hearing.

The defendants appealed a decision regarding the delivery of expert reports.

The Divisional Court allowed the appeal and granted the defendant leave to deliver the expert reports of Dr. Turcotte on causation and Professor Hyatt on damages.

Reasons for the decision were to follow.

As agreed by the parties, no costs were ordered.

Following a ruling dismissing the applicants' claim for breach of a condominium purchase agreement but ordering the return of their deposit, the respondent sought substantial indemnity costs of $247,926.68.

The court awarded partial indemnity costs, finding no reprehensible conduct by the applicants to justify an elevated scale.

The court further reduced the costs award to account for divided success, the respondent's delay in returning the deposit, excessive hourly rates charged by senior counsel, and unexplained discrepancies in the respondent's bill of costs.

The applicants were ordered to pay $88,799.46 inclusive of disbursements and HST.

The accused was charged with possession of fentanyl for the purpose of trafficking.

He brought a Charter application alleging excessive force during his arrest, failure to promptly advise him of the reasons for his arrest, unlawful search of his satchel, and failure to record the arrest.

The court dismissed the Charter application, finding the police officers' evidence credible that the accused resisted arrest, justifying the force used and the delay in advising him of the reasons.

The search of the satchel was deemed a lawful search incident to arrest.

On the trial of the charge, the court rejected the accused's testimony, finding he was in possession of the satchel containing 94.98 grams of fentanyl.

Relying on expert evidence, the court concluded the fentanyl was possessed for the purpose of trafficking and found the accused guilty.

The applicants sought judicial review of a Financial Services Tribunal decision that refused to renew their mortgage broker licences and imposed $70,000 in administrative penalties.

The Divisional Court declined to review the licensing decision, finding that the applicants had an adequate alternative remedy through a statutory right of appeal, which they had failed to perfect.

Applying a reasonableness standard, the court upheld the administrative penalties, concluding that the Tribunal's findings regarding the applicants' failure to cooperate and the economic benefit derived from delaying the proceedings were amply supported by the evidence.

The application for judicial review was dismissed.

The accused were charged with multiple offences arising from a violent home invasion where masked intruders assaulted the occupants and demanded money while armed with firearms.

The intruders fled in a stolen vehicle, leading to a police pursuit and their subsequent arrest in a wooded area.

The court relied on circumstantial evidence, including DNA on discarded gloves, flight from police, and the accused's presence in the getaway vehicle, to find both accused guilty as co-principals or aiders to robbery, break and enter, disguise with intent, and various firearms offences.

The appellant challenged a tribunal decision holding that several sets of condominium board minutes were adequate under the Condominium Act.

The Divisional Court held that the appeal was limited to questions of law under s. 146(2), reviewed on a correctness standard, and found no error in the tribunal's articulation or application of the governing principles from prior tribunal jurisprudence.

The court concluded that the alleged omissions largely raised governance complaints rather than defects in the sufficiency of minutes, and that the most compelling examples still did not show inadequacy.

The appeal was dismissed with agreed costs payable to the respondent.

The appellant moved under s. 21(5) of the Courts of Justice Act to review a single judge's order lifting a stay of an eviction order pending appeal.

The stay had been lifted because the appellant failed to comply with interim payment terms requiring him to pay ongoing compensation and arrears.

The Divisional Court dismissed the review motion, finding no reviewable error in the case management judge's exercise of discretion.

The court held that tenants and unauthorized occupants must pay ongoing compensation and make meaningful payments towards arrears to maintain a stay pending appeal.

The moving party brought a motion for leave to appeal a December 2025 decision of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding parties.

The moving party brought a motion for an extension of time and for leave to appeal a lower court decision.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, awarding $4,000 in costs to the responding party.

The moving party brought a motion for leave to appeal the decision of the lower court judge.

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

The moving party brought a motion for leave to appeal the costs portion of a Small Claims Court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $2,500 to the responding party.

The moving parties brought a motion for leave to appeal a January 30, 2026 decision.

The Divisional Court granted the motion for leave to appeal without costs and ordered that the appeal be expedited, directing the parties to attend a case management teleconference to set a schedule.

Costs ruling following a jury trial in which the plaintiff succeeded on a malicious prosecution claim but failed on wrongful arrest and excessive force claims.

The jury awarded $63,900 in damages, which exceeded the plaintiff's Rule 49 offer to settle.

The court applied a 20% reduction to counsel fees to reflect divided success, deducted $20,000 for the use of two senior counsel, and disallowed expert disbursements of $19,700 related to the unsuccessful claims.

The court rejected a distributive costs approach and held that the plaintiff was entitled to substantial indemnity costs from the date of the Rule 49 offer, awarding total costs of $180,220.70.

The court issued a costs endorsement following a judicial review application.

The parties had previously submitted an agreement on costs, which the court had inadvertently overlooked.

Pursuant to the agreement, the applicant was ordered to pay the respondent $8,000 in costs thrown away, with no costs awarded for the judicial review application itself.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision refusing to reconsider a default judgment.

The default judgment was issued after the applicant's former counsel failed to respond to Tribunal communications, despite the applicant having previously participated in the proceedings.

The Divisional Court found the Tribunal's reliance on a deeming rule to penalize the applicant for its lawyer's negligence was unreasonable, as it failed to conduct a contextual analysis.

The application was granted, the Tribunal's decisions were quashed, and a new hearing was ordered.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision certifying the respondent union to represent a bargaining unit of operating engineers.

The employer challenged the Board's decision to exclude four working forepersons from the bargaining unit.

The Board had applied the 'majority-of-time' test because the forepersons supervised mixed crews, concluding the employer failed to prove they spent the majority of their time performing or supervising bargaining unit work on the application filing date.

The Divisional Court dismissed the application, finding the Board's choice and application of the test were reasonable and consistent with its specialized expertise in construction industry labour relations.

The appellant, a former real estate broker whose license was revoked, appealed and sought judicial review of a Licence Appeal Tribunal decision denying his reapplication for registration.

He argued the Tribunal breached procedural fairness by denying his requests for a summons, an adjournment, and allegedly preventing him from recording the hearing.

The Divisional Court dismissed the appeal, finding the Tribunal properly exercised its discretion in denying the irrelevant summons and the last-minute adjournment.

The court noted the appellant was explicitly granted permission to record the hearing but failed to retain a reporter, and his deliberate choice to leave the hearing meant he failed to meet his evidentiary onus.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board not to proceed with a review of his complaint against a physician.

The complaint related to the physician's application to the Consent and Capacity Board regarding the applicant's roommate.

The Board dismissed the request for review as frivolous, vexatious, and an abuse of process, noting the applicant appeared to be using the process to pressure the physician for financial compensation.

The Divisional Court found the Board's decision reasonable and dismissed the application for judicial review.