Michael K. McKelvey

The Crown sought to admit a statement made by the defendant, Hakeem Mohamed, to police, while Mohamed sought to exclude it on grounds of involuntariness and Charter breaches (s. 10(a) and 10(b)).

The court found that police comments constituted an implied threat, rendering part of the statement involuntary.

Additionally, the police failed to inform Mohamed of his full jeopardy regarding potential firearm charges, breaching his s. 10(a) and 10(b) Charter rights.

Applying the Grant factors, the court concluded that the entire statement should be excluded from evidence.

The plaintiff brought a motion for contempt against the defendant Frank Fiorini for alleged breaches of court orders dated October 19 and November 10, 2010, related to the disclosure and non-removal of construction equipment.

The motion was initially brought in 2010, adjourned, struck in 2011, and resurrected in 2018.

The court dismissed the motion due to the plaintiff's seven-year delay, the plaintiff's prior indication that contempt had been purged, and the failure to prove the breach beyond a reasonable doubt.

The court emphasized that contempt motions are a last resort and should not be used merely to enforce judgments when other means have failed.

The offender, a former teacher, was convicted of sexual exploitation of a former student.

The sexual relationship began when the victim was 16 and lasted for two years, resulting in a pregnancy and abortion.

The Crown sought a five-year sentence based on the breach of trust, while the defence sought 15 to 18 months.

The court weighed the severe impact on the victim against the offender's lack of criminal record, low risk of recidivism, and expressions of remorse.

The court sentenced the offender to 30 months' incarceration, less credit for pre-trial custody and restrictive bail, along with ancillary orders including a DNA order, weapons prohibition, and a 20-year SOIRA registration.

Sentencing following convictions on an agreed statement of facts for two counts of procuring persons under 18 to provide sexual services for consideration and two counts of making child pornography.

The offender recruited vulnerable underage complainants from a group home, used promises of drugs and money, photographed them for internet advertisements, and planned to place them into prostitution, but police intervened before any prostitution occurred or images were posted.

The court held that denunciation, deterrence, and separation from society predominated in sentencing child sexual exploitation offences, while applying the totality principle to consecutive sentences required by statute.

A global six-year penitentiary sentence was imposed, less three days' pre-trial credit, together with all requested ancillary orders.

The appellant, Suzana Kovacevic, brought a motion for the recusal of Justice McKelvey from her appeal seeking to set aside a peace bond.

The appellant alleged bias based on the judge's rulings regarding witness cross-examination, perceived delays, mispronunciation of her name, and refusal to assign another judge.

The appellant also asserted that the judge lacked the necessary life experience to understand the case.

The Crown opposed the motion.

The court dismissed the recusal motion, finding no reasonable apprehension of bias.

The accused, charged with importing heroin, applied for a stay of proceedings under s. 24(1) of the Charter, alleging breaches of his s. 7 rights while in pre-trial custody.

The court found that the correctional facility failed to provide adequate medical care for a severe foot fracture, resulting in permanent injury, and unlawfully placed the accused in administrative segregation for 79 days without proper justification or review.

Concluding that the state's conduct was egregious and offensive to societal notions of fair play and decency, the court held that this was one of the clearest of cases where a stay of proceedings was warranted to protect the integrity of the justice system.

The plaintiffs sought summary judgment for damages arising from the defendant's repudiation of an agreement of purchase and sale for real property.

The defendant raised several defenses, including failure to tender, false bidding war, unjust enrichment, and failure to mitigate damages, and requested a stay of execution pending a third-party claim against her real estate agent.

The court granted summary judgment to the plaintiffs, finding no genuine issue requiring a trial, dismissing all defenses, and refusing to stay the judgment.

The plaintiffs purchased a home in 2008 that subsequently experienced significant water infiltration problems.

They sued multiple parties, including the original builders and The Corporation of The Township of Clearview, alleging negligent construction and failure to inspect/enforce the Building Code.

Clearview Township brought a motion for summary judgment, arguing the action against it was statute-barred by the Limitations Act, 2002.

The court dismissed Clearview's motion, finding that the plaintiffs had raised a triable issue regarding the discoverability of the latent structural defect, as they had reasonably relied on various professionals who did not identify a structural defect until an engineer's report in May 2015.

Following a jury trial where the plaintiff was awarded $62,500 in general damages for injuries sustained in a rear-end motor vehicle accident, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act.

The court reviewed the medical evidence and surveillance footage, noting inconsistencies in the plaintiff's testimony and evidence of her ability to perform daily activities.

The court concluded that the plaintiff failed to prove her injuries substantially interfered with her usual activities of daily living.

The defendants' motion was granted, barring the plaintiff's claim for non-pecuniary loss.

In a personal injury claim arising from an alleged assault, the defendant sought to introduce eight surveillance videos of the plaintiff.

The plaintiff opposed, arguing irrelevance and the tort of intrusion upon seclusion.

The court admitted three videos (#1, #5, and #8), finding them relevant to the toxic relationship between the parties, the plaintiff's credibility, and the contextual circumstances leading to the alleged assault.

The remaining five videos were excluded due to lack of relevance.

The court also determined that the admitted videos did not constitute the tort of intrusion upon seclusion, as there was no reasonable expectation of privacy for actions directed at the defendant's home or observable by other neighbours.

The moving party physician brought a motion under s. 19 of the Health Care Consent Act for authorization to administer anti-psychotic medication to the respondent pending his appeal of a Consent and Capacity Board decision.

The respondent, who was found not criminally responsible and detained at a psychiatric hospital, suffered from a delusional disorder and exhibited threatening behaviour.

The court found that the statutory criteria were met, as the respondent's condition was deteriorating, the treatment would likely improve his condition, the benefits outweighed the risks, and it was the least restrictive option.

The motion was granted.

N.J., a patient found not criminally responsible, appealed a Consent and Capacity Board decision finding him incapable of consenting to treatment for a delusional disorder.

Dr. Corriveau, N.J.'s attending physician, brought a motion under s. 19 of the Health Care Consent Act, 1996, seeking authorization to administer anti-psychotic medication pending the appeal.

The court granted the motion, finding that the statutory criteria for urgent treatment were met, including a likelihood of substantial improvement with treatment, deterioration without it, benefits outweighing risks, and the treatment being the least restrictive and necessary before the appeal's final disposition.

The plaintiff sought damages for injuries from a motor vehicle accident.

Following a jury verdict that awarded modest general damages, the defendants brought a threshold motion seeking a declaration that the plaintiff's claim for non-pecuniary loss was barred under the Insurance Act.

The court considered the plaintiff's significant pre-existing arthritic condition and the medical evidence on causation.

The court found that the plaintiff failed to establish that the motor vehicle accident caused a permanent serious impairment meeting the statutory threshold, largely due to the pre-existing condition and the jury's modest award.

The defence motion was granted.

The defendants sought leave to introduce surveillance evidence for substantive purposes in a jury trial arising from a motor vehicle accident.

The plaintiff opposed, arguing late disclosure and prejudice.

The court found the defendants breached disclosure obligations under Rules 30.09 and 33.06, particularly regarding waiver of privilege when the evidence was provided to a medical expert.

Applying Rule 53.08, the court determined that significant prejudice to the plaintiff, including impacts on settlement considerations and trial strategy, could not be cured by an adjournment.

Leave to use the surveillance evidence for substantive purposes was denied, though its use for impeachment was not challenged.

The applicant sought an order to relocate an existing access easement over its property, which was owned by the respondent, to enable a larger commercial development.

The respondent opposed the relocation.

The court examined the statutory provisions for modifying or discharging conditions or covenants annexed to land under the Conveyancing and Law of Property Act and the Land Titles Act.

It emphasized the narrow judicial discretion to intervene, particularly when the servient owner demonstrates any prejudice.

The court found that the proposed relocation would cause potential prejudice to the respondent due to increased traffic congestion from parking on both sides of the easement and potential adverse impacts on its mortgage financing.

Consequently, the application to relocate the easement was dismissed.

The defendants brought a motion to exclude the plaintiff's second orthopedic expert, Dr. Daniel Ogilvie-Harris, arguing that his testimony duplicated that of the plaintiff's treating physician, Dr. Robert Luba, and citing prior judicial comments regarding Dr. Ogilvie-Harris's alleged bias.

The plaintiff sought to admit both experts, asserting distinct contributions and the need for a Rule 53 expert to challenge the defence's expert.

The court dismissed the defendants' motion, allowing both Dr. Luba to testify as a participant expert and Dr. Ogilvie-Harris as a Rule 53 expert.

The court found that Dr. Ogilvie-Harris's opinion offered significant differences, including addressing the Insurance Act threshold and challenging the defence expert, and ruled that allegations of bias should be addressed in a voir dire.

In a motor vehicle accident action, the plaintiff objected to the defence's expert medical evidence from Dr. Finkelstein, arguing the expert relied on inadmissible surveillance video.

A voir dire was held to determine admissibility.

The court ruled that Dr. Finkelstein could testify, but with conditions: no comment on surveillance in examination-in-chief, and the plaintiff could cross-examine on activities disclosed in evidence or directly on the surveillance (with defence re-examination rights).

The court balanced the probative value of the expert evidence against the potential prejudice from the inadmissible surveillance, noting the expert's opinions were largely independent of the video and foundational facts were already in evidence.

This decision addresses a threshold motion brought by the defendants in a motor vehicle accident claim.

The plaintiff, Barry O'Brien, sought damages for injuries sustained, including a pilon fracture of his left ankle, depression, PTSD, and an exacerbation of low back symptoms.

A jury had previously awarded general damages and past loss of income but no future loss of income.

The defendants argued that the plaintiff's injuries did not meet the 'permanent serious impairment' threshold under s. 267.5(5) of the Insurance Act, RSO 1990, c I.8, and Regulation 461/96, thereby barring his claim for non-pecuniary loss.

The court, while considering the jury's verdict, independently assessed the medical and other evidence.

It concluded that the plaintiff's left ankle fracture resulted in a permanent serious impairment of an important physical function related to his employment, substantially interfering with his ability to continue heavy labour, especially considering the future deterioration due to arthritis.

However, the court found that the impairment did not substantially interfere with most of his usual activities of daily living.

Consequently, the defence's threshold motion was dismissed.

The defendant, Town of Gravenhurst, brought a motion to amend its third-party claim against Ontario to include new allegations of negligence related to a two-year driving prohibition for careless driving, distinct from the original claim concerning medical suspensions.

The court found the proposed amendments constituted a new cause of action.

Applying the recent Court of Appeal decision in Mega International Commercial Bank (Canada) v. Yung, the court confirmed that the discoverability principle applies to claims for contribution and indemnity under s. 18 of the Limitations Act, 2002.

Given the insufficient evidentiary record to determine when the new claim could have been reasonably discovered, the court allowed the amendment, preserving Ontario's right to plead a limitation period defence at trial.

The accused challenged the constitutionality of the mandatory minimum five-year sentence for procuring a person under 18 to provide sexual services under s. 286.3(2) of the Criminal Code, arguing it violated s. 12 of the Charter.

The court considered reasonable hypothetical scenarios, particularly one involving a youthful sex trade worker who was herself exploited and manipulated, recruiting a 17-year-old friend without financial gain.

The court found that in this hypothetical, an appropriate sentence would be two to 2.5 years, making the five-year mandatory minimum grossly disproportionate and thus a violation of s. 12.

The violation was not justified under s. 1 of the Charter due to a failure of minimal impairment.

The mandatory minimum sentence was declared of no force or effect.