Michael K. 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 plaintiff, Zorida Chrysostom, brought a medical negligence action against the defendant physicians and health system, alleging failure to diagnose cauda equina syndrome during her emergency department visit.

The court found that two defendant physicians, Dr. Mann and Dr. Kempenaar, fell below the standard of care by failing to adequately inquire about and document saddle anaesthesia, a cardinal symptom of cauda equina syndrome.

The court also concluded, on a balance of probabilities, that the plaintiff did suffer from cauda equina syndrome at the time of the initial visit, which would have necessitated earlier emergency surgery and improved her outcome.

Damages were agreed upon, and the judgment focused on liability.

Sigfrid Stahn was convicted by a jury of impaired operation of a motor vehicle causing death.

The incident occurred on July 4, 2020, when Stahn, while impaired, veered into oncoming traffic on Highway 12, colliding with Mr. Guenter Naumann, who subsequently died.

Stahn had a significant criminal record, including two prior impaired driving convictions (1985, 1989) and a lengthy history of Highway Traffic Act infractions.

The court considered victim impact statements detailing the profound grief of the Naumann family.

Applying sentencing principles under the Criminal Code, particularly denunciation and general deterrence, and reviewing relevant case law (R. v. Muzzo, R. v. Altiman, R. v. Fracassi), the court identified aggravating factors including Stahn's prior record and apparent lack of remorse.

Mitigating factors were limited.

The Crown sought a 9-year custodial sentence and a 15-year driving prohibition, while the defence sought 6 years and a 10-year prohibition.

The court sentenced Stahn to 8 years imprisonment, an 11-year driving prohibition following release, and ordered a DNA sample.

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.

The appellant, B.V., appealed his conviction for assault and intermittent jail sentence.

The appeal raised three grounds: the trial judge's alleged error in placing the burden on the defence to establish a motive to fabricate, the finding that the force used was not de minimis, and the rejection of the s. 43 Criminal Code defence of corrective force.

The court dismissed the appeal, finding that the de minimis doctrine did not apply given the context of inter-familial aggression and psychological harm, and that the force was not for corrective purposes but motivated by anger.

The court also found that any error regarding the burden of proof for motive to fabricate was harmless and did not affect the outcome.

The plaintiff, a former General Manager, brought a motion for summary judgment for wrongful dismissal, seeking damages for reasonable notice, lost fringe benefits, expense reimbursement, and moral damages.

The defendants conceded joint responsibility for damages and expense reimbursement but disputed the notice period, mitigation, and moral damages.

The court assessed the reasonable notice period at seven months, dismissed the defendants' mitigation arguments due to lack of evidence, and awarded moral damages of $15,000 due to the employer's bad faith conduct during termination, including failure to provide written notice, delayed ESA payments, and unfulfilled severance promises.

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.

This criminal trial concerned a home invasion where the defendant, Bin Chen, was charged with aggravated assault (later reduced to assault causing bodily harm), robbery with a weapon, unlawful confinement, and break and enter with intent to commit robbery.

The Crown relied on circumstantial evidence and the common purpose doctrine under s. 21(2) of the Criminal Code, as the complainants could not identify the intruders.

The court found that the Crown proved beyond a reasonable doubt that a home invasion occurred and that the alleged offences were committed.

Based on video surveillance, DNA evidence linking co-accused, and the defendant's presence at a planning meeting and the scene, the court inferred that the defendant was actively engaged in the home invasion as one of four intruders.

The defendant was found guilty on all four counts.

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 plaintiff builder sued the defendant homeowners for the unpaid hold-back on a custom home construction contract.

The homeowners counterclaimed, arguing the contract was a fixed-price agreement and that the builder negligently underestimated the 'cash allowance' items, resulting in significant cost overruns.

The court held that the cash allowances were estimates and the homeowners were responsible for the overages, noting they had signed change orders approving the extra costs.

The court dismissed the negligent misrepresentation claim for lack of evidence on the standard of care and found the homeowners' claims barred by promissory estoppel.

The builder was awarded the hold-back amount, subject to a set-off for the homeowners' costs in staining the house, which the court found was the builder's responsibility under the contract.

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 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 respondent sought to re-open a previous hearing to advance a constitutional challenge to the Township's zoning by-law, asserting the property is unceded Indigenous territory.

The initial application by the Township for demolition of buildings on the respondent's property had been granted, but the order had not yet been signed, issued, or entered.

The respondent had been self-represented at the original hearing.

The court granted the motion to re-open, finding it was in the interests of justice given the respondent's prior unfamiliarity with court rules, the novelty of the constitutional issue, the lack of prejudice to the applicant (as no enforcement steps had been taken), and the fact that the original order was not yet finalized, allowing for broader judicial discretion.

The applicant brought applications for judicial review challenging the City of Guelph's decisions to remove three anti-abortion advertisements from its public buses.

The City had relied on rulings by Ad Standards, which found the advertisements to be misleading and demeaning to women.

The Divisional Court held that the City's decisions were unreasonable because it failed to conduct the balancing exercise required by the Doré/Loyola framework, which requires weighing the City's legislative objectives against the applicant's section 2(b) Charter right to freedom of expression.

The matter was remitted back to the City for reconsideration.

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.

Following a judge-alone criminal trial arising from an encounter at a wedding reception, the court applied the W.(D.) framework to conflicting evidence about consensual sexual activity, alleged slapping, alleged choking, and alleged sexual assault causing bodily harm.

The court rejected the accused's evidence but found it did not raise the matter because the Crown still failed to prove the charges beyond a reasonable doubt on the evidence accepted.

The complainant was found generally credible, but the court identified significant frailties and inconsistencies in her recall, particularly concerning chronology, consent to oral sex, and the alleged injuries.

The court also found the corroborative medical and lay evidence insufficiently reliable to establish the alleged injuries or the alleged choking and sexual assault beyond a reasonable doubt.

All counts were dismissed and an acquittal entered.

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.

The appellant appealed an application judge's order requiring it to vacate a gas bar premises.

The application judge had found a month-to-month commercial tenancy existed and ordered vacant possession.

On appeal, the Divisional Court found the application judge erred by resolving disputed material facts regarding whether the appellant had an ownership interest in the property rather than a tenancy.

The appeal was allowed and the application was converted to an action to proceed to trial.

The appellant appealed a Licence Appeal Tribunal decision denying claims for physiotherapy and an in-home assessment under the Statutory Accident Benefits Schedule.

The insurer had failed to respond to the treatment plans within the required 10-day period under s. 38(8).

The Divisional Court held that the adjudicator erred by requiring the expenses to be reasonable and necessary, as s. 38(11) mandates payment for expenses incurred during the default period and acts as consumer protection legislation.

The appeal was allowed, the insurer was ordered to pay the in-home assessment and applicable physiotherapy expenses, and the issue of a special award was remitted to a new adjudicator.