Michael K. McKelvey

During a trial for sexual offences against a minor, the Crown objected to the defence's anticipated cross-examination of the complainant's father, arguing the defence failed to put its theories of fabrication to the complainant during his cross-examination, violating the rule in Browne v. Dunn.

The defence conceded the violation but argued the complainant should be recalled to testify.

The court held that recalling the vulnerable 14-year-old complainant would subject him to an unreasonable burden and risk giving the evidence disproportionate attention.

Instead, the court ordered that a special instruction be given to the jury regarding the defence's failure to cross-examine the complainant on these issues.

The applicant moved to reopen a lengthy estate trial after reasons had been released, seeking to adduce further evidence concerning home repair deficiencies, updated estimates, and post-judgment capital expenses under a cohabitation agreement.

The court held that prior comments concerning responsibility for capital expenses after the third anniversary of the deceased's death were obiter because that issue was not among the agreed issues ultimately tried.

Applying the fresh evidence principles governing reopening of a trial, the court found the proposed evidence could have been obtained through reasonable diligence before trial and that reopening would unduly prolong already extensive litigation.

No miscarriage of justice was established, and the motion was dismissed.

The plaintiffs and defendants both sought leave to appeal a motion judge's decision regarding a summary judgment motion in a professional negligence claim arising from a fraudulent mortgage transfer.

The motion judge had dismissed the plaintiffs' motion for summary judgment and declined the defendants' request to dismiss the action, citing the lack of expert evidence on the standard of care for paralegals performing electronic registrations.

The Divisional Court dismissed both motions for leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the motion judge's decision, which appropriately concluded that a trial with expert evidence was required in the interests of justice.

The appellant brought a motion for leave to appeal a costs order of $12,500 made against him in a family law proceeding.

He argued that leave was not required because he was seeking a set-off, and that the motion judge erred in assessing success, failing to consider his inability to pay, and failing to provide a mathematical calculation for the award.

The Divisional Court dismissed the motion, finding that leave was required, the motion judge made no errors in principle, and the proposed appeal did not raise matters of general public importance.

In a personal injury action arising from a motor vehicle accident, the plaintiffs brought a motion to exclude surveillance evidence obtained by the defendant.

The defendant had disclosed a surveillance video from October 2012 well in advance of trial but failed to disclose additional surveillance from 2013 and 2014 until shortly before trial, contrary to an undertaking given at discovery.

The court held that although the defendant breached its disclosure obligations, the October 2012 surveillance could still be admitted as substantive evidence and for impeachment because it had been disclosed long before trial and both parties’ experts had reviewed it.

The later surveillance footage could not be relied upon by the defendant but remained available for the plaintiffs’ use.

Any potential prejudice could be addressed through supplemental expert reports or an adjournment.

Following a jury conviction for sexual assault, the court imposed sentence for an offence involving sexual intercourse with an adult complainant who was significantly incapacitated by alcohol and/or drugs.

The court determined that the jury’s verdict necessarily implied that sexual intercourse occurred but found the Crown had not proven beyond a reasonable doubt that the offender administered a drug to facilitate the assault.

The evidence established that the offender took advantage of a vulnerable and intoxicated complainant and escorted her from a bar to his home where the assault occurred.

Aggravating factors included the complainant’s incapacitation, the serious and lasting emotional harm caused, and the offender’s exploitation of vulnerability.

Balancing mitigating factors including community contributions and health issues, the court imposed a 30‑month penitentiary sentence with mandatory DNA, weapons prohibition, and sex offender registration orders.

The plaintiff sought leave under Rule 48.04 of the Rules of Civil Procedure to bring a summary judgment motion to dismiss the defendants’ counterclaim after the action had already been set down for trial.

The plaintiff also requested that the defendants’ affidavit evidence be struck because the affiant had not been cross‑examined.

The court declined to strike the affidavit, finding no unjustified refusal to attend for cross‑examination.

Applying principles of proportionality and case management, the court held that a summary judgment motion would not be the most efficient procedure, risked duplicative proceedings and inconsistent factual findings, and could delay the scheduled trial.

Leave to bring the summary judgment motion was therefore refused.

The court determined costs following a motion in which the plaintiff sought to add additional defendants and obtain substituted service.

The insurer declined to provide addresses for the proposed defendants while disclosing their identities, citing confidentiality, which necessitated the plaintiff bringing the motion.

The court found that the motion could have been avoided had the insurer facilitated proper service earlier.

However, because the motion also sought production of police records, it was not fair to burden the defendant with all costs.

The court reduced the plaintiff’s claimed partial indemnity costs and ordered a modest costs award payable by the insurer.

In a construction dispute over a roofing contract, the plaintiff contractor sought payment of an outstanding balance while the defendants counterclaimed alleging defective workmanship and water damage.

During trial, a voir dire was conducted to determine the admissibility of defence expert reports served after a court‑ordered deadline and partially based on destructive testing conducted outside the presence of the plaintiff’s expert.

The court granted leave to admit a late-served expert report concerning building design because the delay caused no prejudice and did not delay the trial.

However, the court excluded opinion evidence derived from destructive testing performed after the plaintiff’s expert had left the premises, finding the testing occurred contrary to a prior court order requiring the plaintiff’s expert to be able to attend.

The court held that the probative value of such evidence was outweighed by its prejudicial effect due to the unfairness created by unilateral testing.

Following the sudden death of a successful furniture manufacturer, his common-law spouse and his daughters from a previous marriage engaged in extensive litigation.

The spouse, who operated her own furniture business from the same premises as the deceased's failing company, sued the daughters, the estate, and various professional advisors for breach of contract, civil conspiracy, and unlawful interference with economic relations after the deceased's company was placed into bankruptcy and her access to equipment was interrupted.

The court dismissed the conspiracy and interference claims, finding the defendants acted reasonably to manage the insolvency, but awarded the spouse $72,520 for breach of a handwritten lease and equipment agreement.

In related applications, the court upheld a change of life insurance beneficiary executed by the deceased before his death and enforced the terms of a cohabitation agreement, allowing the spouse to remain in the family home and ordering the estate to pay $84,106.25 for property maintenance and capital expenses.

Following dismissal of a motion seeking removal of the plaintiffs’ solicitor of record and the litigation guardian, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs or, alternatively, higher partial indemnity costs, arguing they were successful on the motion and that serious allegations had been made against their counsel.

The court found the result reflected divided success because issues concerning the litigation guardian were addressed only after the motion was brought, and there had been significant management deficiencies by the plaintiffs’ solicitor during the litigation.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure and the conduct of the litigation, the court substantially reduced the costs claimed.

Partial indemnity costs of $10,000 inclusive of HST and disbursements were awarded to the plaintiffs.

The plaintiff factoring company sued the defendant transportation company and its principal for breach of a factoring agreement and personal guarantee.

The defendants counterclaimed for intentional interference with economic relations, alleging the plaintiff unlawfully seized funds and ruined their business relationship with a major client after the factoring agreement had been orally terminated.

The court found that promissory estoppel precluded the plaintiff from relying on the terminated factoring agreement.

However, the defendant still owed $200,000 for third-party invoices assigned to the plaintiff.

On the counterclaim, the court found the plaintiff liable to the corporate defendant for intentional interference with economic relations, awarding $175,000 in damages at large, but dismissed the principal's personal claims as derivative.

Sentencing for aggravated assault where the accused struck the complainant during a confrontation between boaters on a crowded lake.

The blow resulted in catastrophic injury, leaving the complainant permanently blind in one eye.

The court weighed aggravating factors including the permanent nature of the injury and the offender’s prior criminal record, against mitigating factors such as the spontaneous nature of the incident, absence of a weapon, and expression of remorse.

The court held that intermittent sentences for aggravated assault are reserved for limited circumstances such as youthful or first-time offenders with strong rehabilitation prospects.

A custodial sentence was required to emphasize denunciation and general deterrence.

The plaintiff moved for summary judgment in a breach of contract action and delivered an additional affidavit shortly before the hearing after the defendant had cross-examined the plaintiff’s initial affiant.

The defendant objected to the late affidavit and alternatively sought leave to file responding affidavit evidence.

The court held that Rule 39.02 of the Rules of Civil Procedure only restricts further affidavits from a party who conducted the cross-examination, which did not apply to the plaintiff.

However, the court exercised its discretion to grant the defendant leave to file a responding affidavit because the new affidavit addressed weaknesses revealed during cross-examination.

The plaintiff’s affidavit was admitted and the defendant was permitted to respond.

The corporate plaintiff sought leave to appeal an order requiring it to post $62,000 as security for costs in a negligence and breach of fiduciary duty action against solicitors involved in a business sale transaction.

The applicant argued that the motions judge erred in finding the corporation was not impecunious, failed to assess the merits of the claim, and did not adequately address delay in bringing the security motion.

The court held that modern jurisprudence permits consideration of a corporation’s ability to obtain funding from shareholders or creditors when assessing impecuniosity and found no conflicting authority warranting appellate clarification.

It further held that the motions judge properly exercised discretion by considering fairness to the defendants and the evidentiary record.

Leave to appeal was refused because there was no reason to doubt the correctness of the decision and the issues lacked broader importance.

The moving party sought to set aside an assessment officer’s report and certificate assessing a solicitor’s account arising from legal services in litigation involving a family dispute over powers of attorney.

The court held that a motion opposing confirmation of a certificate under the Solicitor’s Act is in the nature of an appeal and generally limited to the evidentiary record before the assessment officer.

New affidavit evidence alleging lack of retainer, conflict, and solicitor negligence was excluded because it had not been before the assessment officer and no motion to admit fresh evidence was brought.

The court further found no jurisdictional error in the assessment officer proceeding with the assessment and no error in principle in calculating the assessed fees.

The motion to set aside the assessment was dismissed.

During a blended voir dire in a prosecution for possession for the purpose of trafficking and possession of proceeds of crime, the Crown sought to admit a videotaped police interview with the accused.

The court assessed whether the Crown had proven beyond a reasonable doubt that the statement was voluntary under the common law confessions rule.

The evidence showed the interviewing officer repeatedly suggested that providing information was required for the accused’s bail report and failed to provide a police caution informing the accused that statements could be used against him at trial.

Considering the inducement relating to bail and the absence of a caution, the court found a reasonable doubt about voluntariness.

The statement was ruled inadmissible.

The moving party sought an order removing the plaintiffs’ solicitors of record and removing the mother as litigation guardian in a personal injury action arising from a snowmobile accident involving a minor.

The motion alleged a conflict of interest between the minor plaintiff and her mother, who was also a plaintiff and alleged to have contributed to the accident by failing to ensure the child wore a helmet.

The court acknowledged that a potential conflict had existed and that counsel had been inattentive in aspects of the litigation, including allowing counterclaims against the mother to proceed to default.

However, the now-adult plaintiff had received independent legal advice and confirmed that she wished to continue with the same counsel and did not intend to pursue any claim against her mother.

Applying the objective test of whether a reasonably informed member of the public would conclude that removal was required for the proper administration of justice, the court held that disqualification was not warranted.

The accused was charged with aggravated assault following a confrontation between boaters on Lake Couchiching during a busy holiday weekend.

The complainant suffered a severe eye injury resulting in permanent loss of vision after being struck during the altercation.

The accused denied striking the complainant and asserted that he approached the other boat only after being invited, raising issues of consent and identity of the assailant.

Applying the principles in R. v. W.(D), the court rejected the defence evidence, accepted the testimony of eyewitnesses, and concluded that the accused intentionally applied force by striking the complainant in the face after climbing onto the complainant’s boat.

The court found the complainant did not consent to any physical confrontation and that the force used objectively carried the risk of bodily harm.

The Crown proved the elements of aggravated assault beyond a reasonable doubt.

Following a lengthy marriage, the parties disputed equalization of net family property, child support, and claims of constructive trust.

The court resolved numerous valuation issues including alleged loans from the respondent’s mother, the value of the matrimonial home and cottage, pensions, vehicles, and other assets.

The court rejected allegations that the respondent had diverted funds to his mother to defeat equalization, finding instead that most earlier loans had been legitimately repaid and that approximately $151,000 remained owing as of separation.

The matrimonial home was valued at $410,000 and the cottage at $655,000, with a discounted contingent capital gains tax liability recognized.

Constructive trust claims by both parties were dismissed, with the court emphasizing that the statutory equalization regime under the Family Law Act should normally govern property division between married spouses.