Michael K. McKelvey

The appellant, an occupational therapist, appealed a decision of the Discipline Committee finding her guilty of professional misconduct, suspending her certificate of registration for four months, and ordering her to pay $26,000 in costs.

The misconduct arose from her failure to successfully complete an ethics course mandated by a previous disciplinary order, as she failed the course due to plagiarism in her final essay.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding that the Committee reasonably concluded she committed professional misconduct and that the penalty and costs awards were within a reasonable range and discretionary bounds.

The defendant, charged with second-degree murder, sought to introduce expert psychiatric evidence on the "fight or flight" reaction and the effects of marijuana to support self-defence and provocation.

The court dismissed the application, finding an insufficient evidentiary foundation for the proposed expert testimony to be relevant and necessary to the specific facts of the case.

The court also expressed obiter doubts about the necessity of such evidence, particularly regarding the "fight or flight" response, which is generally within the common experience of a jury.

This ruling addresses the determination of trial costs following an appeal where the Court of Appeal set aside a judgment against the defendants and remitted the costs issue.

The defendants sought substantial indemnity costs, citing an oral settlement offer and the plaintiff's egregious conduct.

The court rejected the claim for substantial indemnity costs, emphasizing the requirement for written offers to settle under Rules 49.02 and 49.13, and noting that while the plaintiff's conduct was egregious, the defendants also contributed to an unhealthy relationship, making it inappropriate to single out one party for enhanced costs.

Applying Rule 57.01 factors, the court awarded partial indemnity costs to the defendants, finding them substantially successful.

Due to discrepancies and unreliability in the defendants' submitted bills of costs, the court based the partial indemnity award on the plaintiff's bill of costs as a reasonable estimate, ordering the plaintiff to pay $25,956 plus HST and $3,637.58 in disbursements.

The respondent sought leave to appeal two costs decisions.

The motion judge had declined to award costs against the applicant, who withdrew her spousal support application, due to her inability to pay.

The motion judge also declined to order costs personally against the applicant's former counsel, finding the application was not frivolous or vexatious.

The Divisional Court dismissed the motion for leave to appeal, finding the issues did not meet the high threshold for leave under Rule 62.02 and the motion judge's discretionary decisions were entitled to deference.

This was a motion for leave to appeal two costs decisions.

The appellant sought leave to appeal the motion judge's decision not to award costs against the applicant personally, citing her financial inability to pay, and not to award costs against her former counsel for allegedly initiating a frivolous application or being in a conflict of interest.

The court denied leave, finding that while there might be doubt about the correctness of denying costs based solely on inability to pay, the matter was not of sufficient importance given the applicant's circumstances.

The court also deferred to the motion judge's findings that the application was not frivolous or vexatious and that counsel was not in a conflict of interest warranting personal costs.

The defendant, Abdallah Mohamed, sought to quash his committal for trial on two counts of possession of cocaine for the purpose of trafficking, arguing insufficient evidence of knowledge and control.

The Superior Court reviewed the preliminary inquiry judge's decision, applying the limited weighing of circumstantial evidence test from *Charenski*.

The court found that the preliminary inquiry judge correctly applied the legal principles and that the combination of the defendant's presence, the unzipped satchel's location, and witness testimony suggesting drug dealing was sufficient to support an inference of knowledge and control.

The application for certiorari was dismissed.

The appellant, a lawyer, appealed a trial judgment that awarded her $10,000 in general damages for defamation but declined to award punitive damages.

The defamation occurred when a conservation officer left a voicemail for the appellant's client suggesting she was incompetent.

The Divisional Court dismissed the appeal, finding that the trial judge applied the correct test from Hill v. Church of Scientology and made factual findings supporting the conclusion that the officer's conduct was not malicious, oppressive, or high-handed.

This endorsement addresses the costs arising from three consolidated legal actions and subsequent motions following a lengthy trial.

The primary issue was whether the Estate of Albert Curé was entitled to substantial indemnity costs from Helen Kilitzoglou and Life Line Manufacturing Inc. The court found that the Estate's offers to settle did not meet the criteria under Rule 49.10(2) for cost consequences, nor did they justify substantial indemnity under Rule 57.01.

While allegations of civil conspiracy were not found to warrant substantial indemnity due to the high-conflict nature and mutual responsibility, unsubstantiated allegations of fraud regarding an $800,000 dividend and improper receiver appointment were deemed reprehensible.

Considering the divided success, with the Estate being substantially more successful overall, the court awarded the Estate 50% of its partial indemnity costs, plus a $5,000 premium for the fraud allegations.

This decision addresses three evidentiary issues raised at the commencement of a personal injury trial following jury selection.

The court considered the plaintiff's right to introduce expert opinion on pension loss, a family doctor's opinion on causation of a pre-existing back condition, and a treating psychiatrist's reports.

The court allowed the pension loss expert evidence, subject to an adjournment and potential costs, and the psychiatrist's reports, also necessitating an adjournment.

However, the family doctor's causation opinion was deemed to exceed the scope of a participant expert and was excluded due to non-compliance with Rule 53.03.

The defendant brought a threshold motion seeking a declaration that the plaintiff's personal injury claim for non-pecuniary loss was barred under s. 267.5(5) of the Insurance Act, arguing her injuries did not meet the "permanent serious impairment" threshold.

The jury had previously awarded $40,000 for general damages but no future loss of income.

The court, preferring the plaintiff's medical expert, found the plaintiff suffered from chronic pain disorder caused by the accident, constituting a permanent impairment.

While the plaintiff did not meet the employment-related impairment criteria due to successful accommodation and increased income, the court found her usual activities of daily living were seriously and permanently impaired, affecting her household management, social life, and psychological well-being.

The motion was dismissed, affirming the plaintiff met the statutory threshold.

The Crown sought to admit evidence of a Crime Stoppers tip allegedly made by the accused, Keenan Corner, in a second-degree murder trial.

The defence and Crime Stoppers argued informer privilege applied.

The court ruled that informer privilege does not apply when an accused uses the Crime Stoppers system to deflect suspicion from themselves, as such conduct would constitute a criminal offence (public mischief, obstruction of justice) and divert the privilege from its intended purpose.

The court found, on a balance of probabilities, that the Crime Stoppers call was not legitimate and was made by the accused, based on surveillance evidence and significant similarities between the tip and the accused's statements to police.

The evidence was deemed admissible, subject to a final review of its probative versus prejudicial value.

The accused, charged with second-degree murder, brought an application to exclude several statements made to police under sections 7, 8, 9, and 10 of the Charter.

The Crown brought a corresponding application to admit the statements as voluntary.

The court found that the accused's initial statements at the scene and during the first part of his police station interview were voluntary and not obtained in breach of the Charter.

However, the court found that the accused was detained during the second part of the interview, his Charter rights were violated, and the statements were involuntary due to oppressive police conduct and improper inducements.

Consequently, the second part of the interview was excluded under section 24(2) of the Charter.

Statements made following his subsequent arrest were partially admitted and partially excluded based on voluntariness.

The offender was convicted of historic indecent assault against his daughter, who was between 7 and 9 years old at the time.

The Crown sought 18 months' custody, while the defence sought a conditional sentence.

The court emphasized denunciation and deterrence for sexual offences against children by a person in a position of trust.

The court rejected the defence's request for a conditional sentence and imposed 18 months' custody followed by two years' probation, along with SOIRA and DNA orders.

The appellant appealed convictions for impaired operation and refusing to provide a breath sample.

He argued that the trial judge failed to properly assess whether the arresting officer’s belief of impairment was objectively reasonable, improperly relied on the refusal to provide a breath sample, and placed undue weight on demeanor evidence when comparing in-court testimony to video evidence.

The court held that the trial judge correctly applied the legal test for reasonable and probable grounds and that the factual findings—odour of alcohol, slurred speech, presence of alcohol, and difficulty opening the glove compartment—supported the officer’s belief of impairment.

The court also held that refusal evidence was admissible and could support an adverse inference under the Criminal Code.

The appeal court found no reversible error in the credibility findings or evidentiary assessment.

The accused brought a Garofoli application seeking to exclude evidence seized during the execution of a search warrant for his residence and vehicle, alleging that the Information to Obtain contained misleading statements, omissions, and errors that invalidated the authorization.

The court reviewed the ITO, cross‑examination of the affiant officer, and applicable principles governing review of prior authorizations.

Although the court found numerous inaccuracies and overstatements in the ITO, it concluded they resulted from carelessness rather than a deliberate attempt to mislead the issuing justice.

After excising erroneous statements and considering permissible amplification, the remaining information still established reasonable and probable grounds linking the accused to drug trafficking and connecting the residence to evidence of those offences.

The court held the search warrant was properly issued and no breach of s. 8 of the Charter occurred.

During closing arguments in a personal injury trial, defence counsel asked the jury to consider why the plaintiff did not call her treating physician or her manager as witnesses.

The plaintiff objected and brought a motion to strike the jury.

The court dismissed the motion to strike the jury but found the comments were an inappropriate invitation to draw an adverse inference.

The court held that an adverse inference was not justified because the witnesses were not in the exclusive control of the plaintiff, given modern discovery rules that provide equal access to medical and employment records.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay.

The action arose from a 2008 motor vehicle accident.

The court applied a contextual approach, finding that the plaintiff adequately explained the litigation delay, which was partly due to issues identifying the vehicle's owner and the defendants' delay in delivering pleadings.

The court accepted that the failure to set the action down was due to counsel's inadvertence, the motion was brought reasonably promptly, and the defendants did not suffer significant prejudice.

The motion to set aside the dismissal was granted.

In a personal injury jury trial arising from a motor vehicle accident, the plaintiff moved before openings to exclude surveillance obtained by the defence after discoveries and disclosed only shortly before trial.

The court held that the defence breached rules 31.09(1)(b) and 30.07 of the Rules of Civil Procedure by failing to promptly notify the plaintiff of post-discovery surveillance and by failing to serve supplementary affidavits of documents.

Applying the leave framework under rule 53.08, the court found the prejudice did not outweigh the probative value because the trial had not yet begun in substance and any prejudice could be addressed by adjournment, costs, and immediate production of the videos.

The defence was granted leave to use the surveillance for impeachment purposes only.

In this personal injury trial arising from a motor vehicle accident, the court addressed an objection to proposed opinion evidence from a treating chiropractor on whether the plaintiff still required treatment.

Applying the framework for participant experts, the court held that treating health practitioners may give opinion evidence without rule 53.03 compliance only if the opinion was formed through observation or participation in the events at issue in the ordinary exercise of their expertise.

The court further held that a party should disclose in advance opinions to be elicited from a participant expert when those opinions are not contained in the records already produced.

A voir dire was ordered on admissibility, and any resulting prejudice was addressed by permitting the defence orthopedic expert to respond without full rule 53.03 formalities.

During a trial for sexual offences against a minor, the defence cross-examined a Crown witness about a previously withdrawn criminal charge for obstructing a court proceeding.

The Crown objected to this line of questioning.

The court ruled that cross-examination on the fact of a withdrawn charge is generally impermissible as it has no bearing on credibility, though the underlying facts may be explored.

The court directed a mid-trial instruction to the jury to disregard the fact of the charge, but permitted the defence to further cross-examine the witness on the underlying facts.