Michael K. McKelvey

The accused, a former teacher of the complainant, was tried on charges of sexual assault, sexual interference, invitation to sexual touching, and sexual exploitation arising from a sexual relationship that developed after the complainant left his class and later worked under his supervision at a drama camp.

The court accepted that a consensual sexual relationship involving intercourse existed by March 2011, but found the complainant's evidence on timing left a reasonable doubt whether the relationship began before she turned 16.

The accused was therefore acquitted on the under-16 counts.

The court nevertheless found that the relationship flowed directly from the earlier teacher-student bond and subsequent supervisory employment relationship, and that the accused remained in a position of trust or authority toward the complainant when she was 16 to 17.

A finding of guilt was entered on the sexual exploitation count under s. 153.

The applicant sought judicial review of a Licence Appeal Tribunal (LAT) decision denying her catastrophic impairment benefits.

After the decision, the applicant received an anonymous letter alleging the LAT's executive chair had changed the adjudicator's decision.

Evidence revealed the LAT had an unwritten peer review process where the executive chair reviewed draft decisions.

The Divisional Court held that this process breached the rules of adjudicative independence because consultation was imposed by a superior level of authority rather than requested by the adjudicator.

The decision was set aside and remitted for a new hearing.

The applicant's motion to set aside a previous Divisional Court order under Rule 59.06 was dismissed as an abuse of process.

The successful respondents and intervenors sought costs.

The applicant argued against a costs award, citing impecuniosity and public interest.

The court rejected the public interest argument but considered impecuniosity in determining the quantum.

The Attorney General and the Justices of the Peace Review Council were awarded $7,500 each on a partial indemnity basis.

The intervenors, the applicant's former counsel, were awarded $23,000 on a substantial indemnity basis due to the applicant's reprehensible conduct in making unfounded allegations of ineffective assistance of counsel.

The plaintiffs sought a Mareva injunction without notice against the defendants, alleging a fraudulent scheme involving the illegal dumping of industrial waste on their property.

The motion judge declined to grant the injunction without notice, citing delay and lack of direct evidence of asset dissipation.

The plaintiffs sought leave to appeal this decision to the Divisional Court.

The Divisional Court granted leave to appeal and allowed the appeal, finding that in cases of fraud, the risk of dissipation can be inferred from the circumstances of the fraud itself.

The court granted the Mareva injunction without notice against the remaining defendants, emphasizing the importance of this remedy in protecting victims of serious fraud.

The applicant, a former Justice of the Peace removed from office for misconduct, brought a motion under Rule 59.06 to set aside a previous Divisional Court order that had dismissed his judicial review application.

The applicant argued he was denied a fair hearing and alleged ineffective assistance by his former counsel.

The court dismissed the motion, emphasizing the principle of finality in litigation and finding that the applicant's complaints did not fit within the narrow exceptions of Rule 59.06 for fraud or newly discovered facts.

The applicants sought judicial review of an interlocutory decision made by the Normal Farm Practices and Protection Board regarding its internal processes.

The Divisional Court dismissed the application, holding that judicial review of interim orders is only available in exceptional circumstances to prevent fragmentation and piecemeal proceedings.

The court found no exceptional circumstances justifying intervention before the board's final decision.

Costs were awarded to the respondent receiver in the fixed amount of $2,000.

The plaintiff brought a motion for summary judgment seeking specific performance of an Agreement of Purchase and Sale for a residential property.

The transaction failed to close because the registered owner's parents claimed they were the true beneficial owners of the property under a resulting trust.

The court dismissed the motion, finding that significant credibility issues and conflicting evidence regarding the beneficial ownership of the property created a genuine issue requiring a trial.

The offender was convicted of second-degree murder by a jury after shooting his friend and drug trafficking partner multiple times with an illegal handgun.

The Crown sought 16 years of parole ineligibility, while the defence sought 10 to 12 years.

The jury recommendations ranged from 20 to 25 years.

The court considered aggravating factors, including the extreme violence, use of an illegal handgun, and post-offence conduct, alongside mitigating factors such as the offender's youth, Aboriginal heritage, expressions of remorse, and pre-trial custody conditions.

The court sentenced the offender to life imprisonment with no parole eligibility for 14 years, along with ancillary weapons, DNA, and non-communication orders.

During a jury trial for a personal injury claim arising from a motor vehicle accident, the plaintiff brought a motion to exclude portions of the defence orthopedic expert's proposed testimony.

The plaintiff objected to the expert testifying about symptom exaggeration and the theory of chronic pain syndrome (central sensitization).

Applying the Mohan and Abbey frameworks, the court allowed the expert to testify regarding symptom exaggeration, finding it within his clinical expertise.

However, the court excluded his opinions on central sensitization, ruling he lacked the necessary qualifications and his evidence failed the gatekeeper cost-benefit analysis.

The expert was also restricted from testifying about undisclosed research and cautioned to present his evidence professionally.

During a personal injury jury trial arising from a motor vehicle accident, the defendants sought to introduce surveillance videos of the plaintiff from 2013 and 2015 as substantive evidence.

The plaintiff objected, arguing the videos lacked probative value because she had already testified she could perform the recorded activities on a 'good day,' and that their admission would be prejudicial.

The court rejected the plaintiff's arguments, finding the videos relevant to assessing the degree of her impairment and concluding that their probative value outweighed any prejudicial effect.

The 2013 and 2015 surveillance videos were ruled admissible.

The appellant appealed her summary conviction for impaired driving and driving over 80.

At trial, the Crown relied on a toxicologist's report that assumed the appellant had not engaged in bolus drinking within 15 minutes prior to the incident.

The trial judge found sufficient circumstantial evidence to disprove bolus drinking and convicted the appellant.

On appeal, the appellant argued the trial judge misapprehended the evidence and reversed the burden of proof.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's factual inferences regarding the absence of bolus drinking.

The accused, charged in a shooting death, sought to introduce expert psychiatric evidence regarding the 'fight or flight' reaction to explain his perception and memory of the events.

The court dismissed the application, finding that the proposed evidence did not meet the necessity test for expert evidence.

The court held that the biological mechanics of a fight or flight response and its effects on perception are within the ordinary experience and common sense of a jury.

Furthermore, the probative value of the evidence was outweighed by the risk of usurping the jury's role and oath-helping.

The accused, charged with second degree murder, brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The total delay was 44.5 months.

After deducting defence delay and delay caused by exceptional circumstances—including unexpectedly lengthy pre-trial motions and an interlocutory appeal to the Supreme Court of Canada by Crime Stoppers regarding informer privilege—the net delay fell below the 30-month presumptive ceiling established in Jordan.

The application for a stay was dismissed.

The Crown appealed a trial judge's decision to grant a stay of proceedings under s. 11(b) of the Charter for a charge of operating a motor vehicle with a blood alcohol level over 80mg.

The trial judge had calculated the net delay at 13.5 months, which fell below the presumptive ceiling established in Jordan.

The Superior Court found that the trial judge made a palpable and overriding error in calculating the delay, which should have been approximately 11.5 months.

Furthermore, the defence failed to demonstrate that it took meaningful, sustained steps to expedite the proceedings or that the case took markedly longer than reasonably required.

The appeal was allowed, the stay was set aside, and a new trial was ordered.

During a motor vehicle accident trial, the plaintiffs objected to the admissibility of a defence psychiatrist's evidence, Dr. Robert Hines.

Initially, the objection concerned Rule 53.03, but it was withdrawn based on the *Westerhof* decision.

The court then raised a concern regarding the defence's attempt to both file Dr. Hines' reports under s. 52 of the *Evidence Act* and call him as a witness, which is contrary to established case law (*Ferraro v. Lee*, *Iannarella v. Corbett*).

Despite the defence counsel's prior involvement in *Iannarella* and the court's gatekeeping role, the defence insisted on calling the witness.

The court, exercising its discretion, allowed Dr. Hines to testify but ordered his reports removed from the jury's document brief to mitigate prejudice to the plaintiffs, while reserving the issue of costs for later consideration.

An inmate, Brian Hickey, sought a writ of habeas corpus with certiorari in aid to challenge his emergency transfer from a minimum to a medium security institution, arguing the decision was unreasonable and procedurally unfair.

The court found the transfer decision reasonable, based on credible allegations of threats against his step-father and deteriorating behaviour, which increased his public safety risk.

The court also determined that procedural fairness was met, including the proper withholding of certain information under s. 27(3) of the Corrections and Conditional Release Act.

The application was dismissed.

The applicants sought court approval for a minor's settlement arising from a dog bite incident and the appointment of a litigation guardian.

The court approved the settlement and the litigation guardian appointment but found the contingency fee agreement between the applicants and their counsel to be unfair and unreasonable due to lack of clarity, non-compliance with regulations, and inclusion of costs without exceptional circumstances.

The court reduced the counsel's fee from the proposed 33% to 20% of the minor applicant's recovery, plus disbursements and HST.

The plaintiffs moved to enforce a settlement agreement for $428,537 against the defendants.

The defendants argued their offer was terminated by a counter-offer and that enforcement would be unjust due to alleged double recovery from both shares and the monetary settlement.

The court found a binding settlement under Rule 49.07(2) of the Rules of Civil Procedure, noting that a counter-offer does not automatically terminate an original offer under the Rules.

The court also determined that the defendants failed to demonstrate a real risk of clear injustice to warrant declining enforcement, as the plaintiffs' claims extended beyond share ownership to substantial damages.

The motion to enforce the settlement was granted, and the plaintiffs were awarded $6000 in partial indemnity costs.

The defendant, Jefferey J. Mitchell, was charged with robbery, masked face, and using an imitation firearm following a bank robbery on June 5, 2015.

The sole issue at trial was the identity of the robber.

The Crown presented circumstantial evidence, including the defendant's physical description, vehicle, and clothing matching those of the robber, as well as evidence of the defendant's recent possession of dye-stained money from the robbery found at two casinos shortly after the incident.

The court applied the doctrine of recent possession and, considering the totality of the circumstantial evidence, found that the Crown had proven the defendant's identity beyond a reasonable doubt.

The defendant was found guilty on all three counts.

The applicants sought judicial review of an interlocutory decision by the Human Rights Tribunal of Ontario refusing to dismiss a human rights application under s. 45.1 of the Human Rights Code.

The respondent had alleged racial profiling during a traffic stop, an issue previously raised and dismissed in a criminal proceeding before the Ontario Court of Justice.

The Divisional Court found exceptional circumstances to review the interlocutory decision and held that the Tribunal's decision was unreasonable.

The Tribunal failed to properly apply the principles of issue estoppel and fairness as set out by the Supreme Court of Canada, relying instead on generalized public policy concerns rather than a case-specific analysis.

The application for judicial review was granted and the matter remitted to a differently constituted panel.