Michael K. McKelvey

Following the death of their mother, three brothers brought an action on behalf of her estate against their fourth brother, alleging he misappropriated significant estate assets including real estate, securities, and gold through joint accounts and transfers.

The defendant claimed the assets were inter vivos gifts.

The Superior Court of Justice applied the presumption of resulting trust and found the defendant failed to rebut it, noting the mother's lack of capacity due to dementia and significant inconsistencies in the defendant's evidence.

The court granted a tracing order, awarding the estate a 69.5% interest in a property purchased by the defendant with the misappropriated funds, plus monetary damages.

The defendant's counterclaims for improvident sale of the family home and return of TFSA funds were dismissed.

The moving parties brought a motion for leave to appeal the order of Healey J. dated May 21, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The moving party brought a motion for leave to appeal the order of Ferguson J. dated February 2, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

The applicant sought judicial review of a decision by the Office of the Independent Police Review Director, which upheld a police chief's finding that officers did not engage in discreditable conduct.

The officers had required the applicant to leave her parents' home at the homeowner's request, despite the applicant having registered a Certificate of Pending Litigation on the property.

The Divisional Court held that the police acted reasonably and within their discretion to prevent a breach of the peace and enforce the homeowner's rights.

The application for judicial review was dismissed without costs.

The appellant veterinarian appealed a finding of professional misconduct and a penalty decision by the College's Discipline Committee, which included a three-month suspension and a $135,000 costs award.

The misconduct related to the misdiagnosis and improper treatment of a dog's fractured paw.

On appeal, the appellant raised several procedural and constitutional arguments, including allegations of bias, unconstitutional by-laws, and failure to provide reasons by the Complaints Committee.

The Divisional Court dismissed the appeal, finding no palpable and overriding error of fact or error of law, and upheld the costs award as reasonable given the appellant's conduct during the proceedings.

The union applied for judicial review of an arbitrator's supplementary decision regarding the termination of employee benefits during the discipline process.

The arbitrator found that the employer's obligation to continue providing benefits to employees grieving their dismissal up to step three of the grievance procedure only lasted until the expiry of the collective agreement and the statutory freeze.

The Divisional Court applied the reasonableness standard of review and found that the arbitrator's decision was based on an internally coherent and rational chain of analysis.

The application for judicial review was dismissed.

The plaintiff brought a motion to set aside an order dismissing his motor vehicle accident claim for delay.

The plaintiff had been inadvertently left in the Zoom waiting room during the original motion.

The court set aside the dismissal order, finding that the plaintiff's absence was due to a technical mistake.

Reviewing the underlying motion to dismiss for delay, the court found the delay was largely attributable to the plaintiff's former counsel and the COVID-19 pandemic, was not intentional or contumelious, and did not create a substantial risk to a fair trial.

The motion to set aside was granted and a timetable was set for the action to proceed.

The plaintiff brought a motion to strike the defendant's jury notice in a motor vehicle accident action due to the suspension of civil jury trials during the COVID-19 pandemic.

The court found that the anticipated lengthy delay in scheduling a jury trial would cause significant prejudice to the plaintiff, including financial hardship and the cost of updating expert reports.

The court provisionally struck the jury notice, ordering that it be automatically reinstated if juries are being empanelled when the matter is called to trial.

The defendant, having been successful in the underlying action regarding its right to rebroadcast a 1984 interview, sought partial indemnity costs.

The plaintiff argued the defendant should be deprived of costs due to morally offensive conduct in rebroadcasting the program, which posed a safety risk to the plaintiff.

The court found no morally offensive behaviour, noting the defendant acted responsibly by removing the interview once alerted to the plaintiff's concerns.

The court awarded the defendant partial indemnity costs of $9,042.04, holding that sympathy for the plaintiff's situation is not a basis to refuse costs.

The appellant appealed a temporary order dealing with parenting time and the sale of the matrimonial home.

The appellant argued the motions judge erred by denying an adjournment, failing to consider the best interests of the children, and ignoring child support arrears.

The Divisional Court dismissed the appeal, finding no error in the motions judge's exercise of discretion given the appellant's history of delay.

The court also found the motions judge properly considered the children's best interests and the respondent's sobriety, and appropriately ordered the sale of the home due to the appellant's interference.

Following the release of reasons for judgment in a family law application, the respondent brought a motion under Rule 25(19) seeking to dismiss the application or order a new trial due to factual errors in the judgment.

The court acknowledged a minor factual error regarding the source of a down payment but found it did not alter the conclusion that there was a joint family venture and unjust enrichment.

The court also clarified the calculation of the applicant's 35% interest in the accumulated properties.

The respondent's motion was dismissed, as the remaining issues were either previously addressed or relied on new evidence that could have been adduced at trial.

In a family law proceeding, the court ordered both the applicant and the respondent to provide updated financial disclosure regarding their respective properties.

The parties were directed to exchange mortgage and line of credit statements, MPAC assessments, and details of any rental income received since December 2017.

Further submissions on the net equity of the properties were scheduled to follow the disclosure.

The applicant and respondent, unmarried cohabitants for 12 years, separated and sought division of accumulated real estate.

The applicant claimed a 50% interest in properties registered to the respondent based on unjust enrichment and joint family venture.

The court found the applicant made a modest financial contribution to the family home and contributed to the maintenance of investment properties and the family home, allowing the respondent to earn substantial income.

The court concluded the criteria for unjust enrichment and joint family venture were met and awarded the applicant a 35% interest in the family home and other properties, less the equity in a condominium owned by the applicant.

The applicant sought to amend her pleading to explicitly include a claim based on a joint family venture, which was not originally pleaded but was relied upon during the trial.

The respondent opposed the motion.

The court granted the amendment, finding that the respondent was aware of the joint family venture theory of the case throughout the proceedings, and that no limitation period issue existed for the unjust enrichment claim.

The court noted that the applicant's counsel's delay in seeking the amendment would be considered in the determination of costs.

The defendant brought a motion to amend its Statement of Defence to explicitly plead self-defence, after all evidence had been heard at trial but before final submissions.

The plaintiff opposed, arguing prejudice due to a new theory and lack of opportunity for cross-examination or recalling experts.

The court granted the motion, finding that the plaintiff was not prejudiced as the issue of self-defence had been inferentially raised in the original pleading, explicitly stated in the pre-trial memo, and discussed in the defendant's opening statement and during cross-examination of the defendant.

The court concluded that the plaintiff's counsel was well aware of the defence throughout the proceedings.

The defendant brought a motion for a nunc pro tunc order to retroactively authorize communication with his counsel during cross-examination, which was in contravention of a direct court order.

The plaintiffs opposed, denying they had consented to such communication.

The court dismissed the defendant's motion, finding that no consent was proven and, more importantly, that leave of the court was required regardless of any alleged consent, especially given the explicit court order.

The court determined that the breach would be considered when assessing the weight of the defendant's evidence, particularly concerning the alleged unlawful appropriation of gold.

A former police informant, John Doe (previously Cecil Kirby), sued the Canadian Broadcasting Corporation (CBC) for breach of contract, breach of privacy, and negligence after the CBC rebroadcast a 1984 interview in 2015.

The plaintiff alleged an oral agreement that the interview would only be shown once.

The CBC moved for summary judgment, asserting the written contract granted them full rights to the content and denying any oral agreement.

The court granted summary judgment, finding no admissible evidence to support the alleged oral agreement and that the written contract provided lawful justification for the rebroadcast, thereby dismissing all claims.

The defendants were found guilty of exercising control over the movements of a complainant to provide sexual services, receiving a material benefit, and advertising sexual services.

One defendant was also found guilty of trafficking MDMA.

The court found that while the defendants did not coerce the complainant into the sex trade, they exploited her serious drug dependency for financial gain.

The court sentenced A.M. to a global term of 24 months and M.P. to a global term of 18 months, ordered forfeiture of their cellphones as offence-related property, and granted pre-trial custody credit including for house arrest but not for curfews.

The accused applied for a review of her detention order on charges including robbery with a firearm and kidnapping, arguing a material change in circumstances based on a new release plan with two sureties and a delay in medical treatment.

The court admitted the new sureties as fresh evidence but found the accused failed to meet her reverse onus on both the secondary and tertiary grounds.

The court held that the proposed release plan could not adequately address the risk of reoffending given the accused's extensive criminal record and history of breaching bail conditions.

The application for bail review was dismissed.

The plaintiff suffered a traumatic brain injury after being hit by a golf ball hit by the defendant.

The plaintiff brought a motion to increase the damages claimed and to strike the jury notice due to anticipated trial delays caused by the COVID-19 pandemic.

The court granted the amendment to damages on consent.

However, the court dismissed the motion to strike the jury notice, adopting a 'wait and see' approach to determine if the region's new civil trial protocol could accommodate urgent civil jury trials, without prejudice to the plaintiff's right to renew the motion later.