Michael K. McKelvey

The appellant appealed convictions for sexual assault and sexual interference involving a minor complainant.

The appeal argued that the trial judge provided inadequate reasons, improperly scrutinized the accused’s evidence more strictly than the complainant’s, failed to address a major inconsistency arising from statements allegedly made to a friend, and failed to consider possible collusion between the complainant and the witness.

The Superior Court held that the trial judge correctly applied the credibility framework from R. v. W.D. and that appellate courts must defer to credibility findings where the judge has addressed the substance of the issues.

The court found the trial judge had recognized and analyzed the alleged inconsistencies and witness interactions and that the reasons sufficiently explained the credibility conclusions.

The convictions were therefore upheld.

The plaintiffs sought enforcement of personal guarantees executed by the defendant in relation to loans advanced to two corporations.

The defendant argued the action was statute-barred, that he did not understand he was personally guaranteeing the debt due to language difficulties, that there was no consideration for the promissory note, and that the lender’s corporate name change rendered the guarantee unenforceable.

The court rejected the non est factum defence, finding the defendant understood the nature of the documents and knowingly signed both as corporate officer and personal guarantor.

The court further held that the action was commenced within the limitation period, that consideration existed through an extension of time for repayment, and that a corporate name change did not affect enforceability of the note or guarantee.

Judgment was granted for the principal amounts owed under both guarantees with interest, subject to a small credit relating to residual corporate funds.

The plaintiff sought damages after suffering a fractured elbow while roller skating at the defendant’s rink.

The evidence established a longstanding problem with water dripping from the roof onto the skating floor, which the occupier addressed only through buckets and pylons rather than repairing the roof or closely monitoring the skating surface.

The court found the occupier breached its duty of care under the Occupier’s Liability Act by failing to adequately manage the known hazard and by failing to properly monitor the skating floor.

The plaintiff’s fall was found to have been caused by striking a displaced pylon and the presence of water on the floor.

The court rejected defences of voluntary assumption of risk but found the plaintiff contributorily negligent for failing to notice a visible pylon while skating backwards.

The applicant landlord sought a determination that the tenant was required to contribute to construction cost overruns under two offers to lease for commercial space in a shopping centre.

The agreements provided that the tenant would pay excess hard construction costs above a specified amount per square foot if such costs were approved in advance by the tenant or incurred under approved contracts.

The court held that the tenant’s prior approval of construction contracts or excess costs was a clear condition precedent to any obligation to pay cost overruns.

Because the landlord failed to obtain such approval before construction was completed, the tenant was not liable for any excess costs.

The court also held, obiter, that if liability had arisen, the cost of constructing the underground garage would have been included as part of the hard construction costs.

In a real estate commission dispute, the plaintiff brokerage sought leave to amend its statement of claim to add an additional plaintiff and defendant and to plead rectification or rescission of an assignment of a listing agreement.

The defendant brought a Rule 21 motion to strike the claim on the basis that the assignment transferred all rights to commission to another brokerage and left the plaintiff without privity of contract.

The court held that amendments should generally be permitted unless clearly untenable or prejudicial and found the proposed amendments raised legally tenable issues regarding the enforceability of the assignment agreement, limitation periods, and potential duties owed by the proposed defendant brokerage.

The court also concluded that it was not plain and obvious that the limitation period had expired.

Leave to amend and add parties was granted and the motion to strike was dismissed.

The plaintiff brought a motion under Rules 25.06, 25.10, and 25.11 of the Rules of Civil Procedure seeking to strike portions of a defendant’s Statement of Defence in a civil fraud action alleging misappropriation of corporate funds.

The court considered whether several pleaded allegations were irrelevant, speculative, inflammatory, or unsupported by material facts.

Some impugned paragraphs were allowed to remain because they were relevant to the defendant’s theory that he acted under instructions from a corporate officer.

However, other allegations containing speculation, unsupported assertions, or inflammatory descriptive terms were struck, though the defendant was granted leave to amend to properly plead material facts and comply with pleading rules, including requirements for pleading fraud with particulars.

On a motion under Rules 21.01(1)(b) and 25.11, the defendants sought to strike substantial portions of a statement of claim alleging breach of a non-solicitation covenant, inducement, vicarious liability, and misrepresentation arising from employee departures to a competitor.

The court held the plaintiff had pleaded sufficient material facts on the core liability theories, emphasizing that particulars of alleged private solicitations need not be exhaustive at the pleadings stage where key actors, targets, and timeframe are identified.

The court declined to strike claims for breach, inducement, vicarious liability, misrepresentation, disgorgement-based relief, and punitive damages, including a novel waiver-of-tort theory, as they disclosed triable issues.

However, the court struck deficient damages allegations in specified paragraphs, with leave to amend to plead supporting material facts.

A biological father brought a motion to set aside a Crown wardship order made without notice to him in child protection proceedings.

The court considered whether a biological father who did not meet the statutory definition of “parent” under the Child and Family Services Act was nevertheless entitled to notice of the Crown wardship application.

The court held that the father had a common-law entitlement to notice and that the society had failed to take reasonable steps to identify and notify him before obtaining the order.

Applying Supreme Court of Canada authority concerning procedural fairness in child protection matters, the court concluded that the wardship order was a nullity as against the father.

The order was set aside as against him only, while the child remained temporarily in the society’s care pending further proceedings.

The respondent father brought a contempt motion in a family law matter alleging that the mother breached a prior final custody order by moving the child to another municipality, enrolling the child in a new school without consultation, and failing to provide the required 60 days’ notice of relocation.

The court held that reconciliation between the parties did not terminate or invalidate the existing court order, which remained in force until varied by a further order.

The court found the mother deliberately and wilfully breached the order beyond a reasonable doubt by relocating and altering custody-related decisions unilaterally despite the father’s objections.

As a remedy, the court ordered the child returned to the original jurisdiction and restored the prior access arrangement pending any motion to change.

During a commercial trial involving allegations of fraud and conspiracy related to the declaration of a corporate dividend, the court ruled on an objection to expert testimony.

Defence counsel argued the plaintiff’s expert sought to give opinions not contained in previously served expert reports contrary to Rule 53.03 of the Rules of Civil Procedure.

The court held that an expert may explain or amplify matters latent in a report and allowed testimony on whether the dividend complied with statutory requirements under the Business Corporations Act, finding the issue sufficiently addressed in the reports.

However, the court prohibited testimony regarding what due diligence the accountant should have undertaken, as that issue was not contained in the expert reports or pleaded in the claim and would cause prejudice to the defence.