Andrew K. Lokan

The self-represented plaintiff, Paul Taylor, sued the Workplace Safety & Insurance Board (WSIB) and the Workplace Safety & Insurance Appeals Tribunal (WSIAT) for approximately $17 million, alleging bad faith, breaches of the Human Rights Code and the Charter of Rights, and various torts related to the handling of his workplace injury benefits claim.

The WSIAT brought a motion to dismiss the action as frivolous, vexatious, and an abuse of process, or to strike the pleadings for disclosing no reasonable cause of action.

The court granted the motion, finding that it lacked jurisdiction over the subject matter, the WSIAT lacked legal capacity to be sued, the action constituted an abuse of process by attempting to re-litigate issues already decided by the Tribunal, the claim failed to disclose a reasonable cause of action (including for assault and misfeasance of public office), and the claims were statute-barred.

Leave to amend the statement of claim was denied, and the statement of claim was struck in its entirety.

The defendants successfully brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action.

In this costs endorsement, the court considered whether to depart from the presumption of full indemnity costs under s. 137.1(7).

The court denied the plaintiff's request to file a further affidavit and found no reason to depart from the statutory presumption.

The court awarded full indemnity costs of $282,943.42 to the defendant Bent and partial indemnity costs of $30,000 to the defendant Lerners LLP.

The moving party (defendant) brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the responding party's (plaintiff's) defamation action.

The action arose from an email sent by the moving party to a restricted listserv of plaintiff-side personal injury lawyers, which criticized the responding party's conduct as a medical expert in preparing executive summary reports for insurance companies.

The responding party also challenged the constitutionality of s. 137.1 under ss. 7 and 15(1) of the Charter.

The court found that the email related to a matter of public interest.

The court held that the responding party failed to show there were grounds to believe the moving party had no valid defence, as the defences of substantial justification and qualified privilege were reasonably likely to succeed.

Furthermore, the public interest in protecting the expression outweighed the public interest in permitting the proceeding to continue.

The court also dismissed the Charter challenges, finding that reputation is not a free-standing right under s. 7 and that potential defamation plaintiffs do not constitute an analogous group under s. 15(1).

The motion was granted and the action was dismissed.

The Attorney General of Canada moved to dismiss an application by the Canadian Civil Liberties Association and Christopher Parsons, arguing it was moot following *R. v. Spencer* and failed to disclose a reasonable cause of action.

The application challenged sections of the *Personal Information Protection and Electronic Documents Act* (PIPEDA) concerning the collection and disclosure of personal information to government institutions without consent, alleging breaches of sections 7 and 8 of the *Canadian Charter of Rights and Freedoms*.

The court dismissed the Attorney General's motion, finding that *Spencer* did not render the application moot as it addressed a narrower issue and did not cover systemic challenges, intelligence gathering, or accountability mechanisms under PIPEDA.

The court also found that the Amended Notice of Application disclosed a reasonable cause of action, particularly regarding the lack of oversight mechanisms and the potential for arbitrary, overbroad, or grossly disproportionate infringements of Charter rights.

On a constitutional appeal, the appellants sought declarations that Métis and non-status Indians fall within Parliament’s jurisdiction under s. 91(24), that the federal Crown owes them a fiduciary duty, and that they have consultation and negotiation rights.

The Court held that Métis and non-status Indians are “Indians” under s. 91(24), restored the broader trial declaration, and rejected restricting Métis status to the Powley framework for this jurisdictional purpose.

The Court found this declaration had practical utility in ending the federal-provincial jurisdictional impasse.

The Court declined the second and third declarations as restatements of settled law lacking practical utility.

The approval holder brought a motion arguing that the Tribunal lost jurisdiction to determine the remedy for a revoked renewable energy approval because the statutory six-month time limit had expired, resulting in a deemed confirmation of the Director's decision.

In the alternative, the approval holder sought the recusal of the Tribunal panel due to a reasonable apprehension of bias.

The Tribunal dismissed the motion, finding that it had disposed of the hearing within the statutory time limit when it issued its original decision, and that the deeming provision did not apply to a remedy hearing remitted by the Court of Appeal.

The Tribunal also found no evidence to support the allegations of bias.

The appellant appealed a jury's damages award following a motor vehicle accident, arguing the awards for loss of income and future care were inordinately low and that the trial judge erred by failing to strike the jury after a student of the respondent's counsel had lunch with two jurors.

The Divisional Court dismissed the appeal, finding there was sufficient evidence for the jury to disbelieve the appellant's claimed inability to work and to accept alternative, less costly future care options.

The court also held that the trial judge did not err in failing to strike the jury, as the appellant had been offered a mistrial but explicitly opted to proceed with the same jury.

Ostrander brought a motion to narrow the scope of the issues and evidence in a remedy hearing concerning a renewable energy approval for a wind turbine project, and to strike portions of the witness statements of two experts called by the Prince Edward County Field Naturalists.

The Tribunal dismissed the motion, finding it premature to narrow the scope of the remedy hearing given its broad remedial jurisdiction and the introduction of fresh evidence.

The Tribunal also declined to strike the expert witness statements, finding the proposed evidence relevant to the remedy and responsive to the fresh evidence.

The approval holder brought a motion to define the issue to be determined in the remaining portion of the hearing and to strike portions of two witness statements.

The motion was dismissed, with reasons to follow.

The Prince Edward County South Shore Conservancy brought a motion for party status to address the remedy in an appeal of a Renewable Energy Approval for the Ostrander Point Wind Park.

The Environmental Review Tribunal dismissed the request for party status but granted the alternative request for participant status.

The Tribunal ordered that the Conservancy may participate in motions but may not bring them, with reasons to follow.

The insurer brought a motion to have an insurance coverage action tried together with an earlier negligence action arising from the same residential renovation damage.

The court held that causation of the alleged property damage was a common and critical factual issue in both actions, and that the relief claimed arose out of the same occurrence or series of occurrences.

Applying the Rule 6.01 discretionary framework and the non-exhaustive factors from prior authority, the court found that overlapping evidence, risk of inconsistent findings, and avoidance of duplicate expert and witness testimony strongly favoured a joint trial.

The motion was granted, joint procedural directions were made, and there was no order as to costs.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that rejected his claim that s. 43(1)(c) of the Workplace Safety and Insurance Act, 1997 violated s. 15(1) of the Charter.

The impugned section limits loss of earnings benefits to two years for workers injured at age 63 or older.

The Divisional Court upheld the Tribunal's decision, finding that the provision did not discriminate on the basis of age as it did not create a disadvantage based on prejudice or stereotyping.

The court further held that even if the provision violated s. 15(1), it would be saved under s. 1 of the Charter.

The application for judicial review was dismissed.

The appellant appealed a costs award following a jury trial for a motor vehicle accident.

The trial judge had added notional pre-judgment interest to the jury's general damages award before applying the statutory deductible, which resulted in the plaintiff beating the defendant's offer to settle and triggering the costs consequences of Rule 49.10.

The Court of Appeal dismissed the appeal, confirming that notional pre-judgment interest should be added to the general damages award for the purpose of determining whether a judgment is more favourable than an offer to settle.

The Court also found no error in the trial judge's holistic consideration of the offers to settle under Rule 49.13.

The appellant appealed a summary judgment dismissing the action against the respondent vehicle owner.

The driver, who was impaired and caused a fatal accident, admitted he did not have the owner's consent to drive the vehicle.

The appellant argued the motion judge erred by applying a purely subjective test for implied consent and by not directing a trial of the issue.

The Court of Appeal dismissed the appeal, finding the motion judge properly considered all evidence and credibility, and correctly concluded he could resolve the dispute on summary judgment.

The applicant union sought judicial review to quash an arbitral award that enforced a four-party settlement agreement regarding regional flying ratios.

The applicant argued the settlement agreement had ceased to operate due to a changed corporate structure and a subsequent statutorily imposed collective agreement between only two of the parties.

The Divisional Court dismissed the application, finding the arbitrator's conclusion that the settlement agreement remained in force was reasonable, and that two parties could not unilaterally amend a four-party agreement through a bilateral statutory arbitration process.

The applicant sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal denying benefits for a shoulder injury.

The applicant had previously received benefits for an elbow injury caused by repetitive stress at work.

The Tribunal concluded that the shoulder injury arose after the elbow injury and was not caused by it, nor by a workplace accident.

The Divisional Court dismissed the application, finding no error of law or palpable and overriding error of fact in the Tribunal's assessment of the medical evidence and application of the statutory presumption of causation.

The applicants sought judicial review of an interest arbitrator's interim award regarding the renewal of collective agreements.

The arbitrator concluded he had jurisdiction to interpret the Competition Act but exercised his discretion to defer those issues to the Competition Tribunal or the courts.

The Divisional Court held that the arbitrator's exercise of discretion was subject to a reasonableness standard of review.

The Court found the arbitrator's decision to defer was reasonable given the Competition Tribunal's specialized expertise, the potential ramifications beyond the parties, and the expedited nature of the interest arbitration process.

The application for judicial review was dismissed.

The defendants in a personal injury action appealed a costs award of $578,742.28 following a jury trial where the plaintiffs were awarded $144,013.07 in damages.

The defendants had made an offer to settle for $145,000 plus prejudgment interest.

The Court of Appeal found that while the offer was timely, the defendants failed to prove it exceeded the judgment due to uncertainty regarding the prejudgment interest rate.

However, the Court held that the trial judge erred by failing to consider the offer under Rule 49.13 and by ignoring the vast disparity between the amount claimed ($1.9 million) and the amount recovered.

The costs award was wholly disproportionate and was reduced to $100,000.

Three Mexican seasonal agricultural workers were terminated by their employer and repatriated to Mexico.

They sued for wrongful dismissal and alleged violations of their rights under ss. 7 and 15 of the Charter and the Canadian Bill of Rights, claiming they were 'privately deported' without procedural fairness.

The defendants brought a motion to strike the constitutional and Bill of Rights claims.

The court struck the Charter and Bill of Rights claims, finding that the pleadings did not contain sufficient material facts to support a deprivation of liberty or security of the person under s. 7, nor discrimination under s. 15.

The court also struck the contractual claims against Canada and F.A.R.M.S. as they were not parties to the employment contract.

The plaintiffs were granted leave to amend their Charter claims.

In an ongoing human rights application alleging discrimination based on place of origin and citizenship due to the employer's application of ITAR regulations, the Tribunal issued an interim decision on procedural matters.

The Tribunal limited the intervening Union's participation to written and oral submissions, denying its request to call evidence and cross-examine witnesses to avoid undue delay and repetition.

The Tribunal permitted the Canadian Civil Liberties Association to intervene regarding Charter issues.

Finally, the Tribunal ruled that extrinsic evidence from the applicant's former counsel regarding the interpretation of a prior Minutes of Settlement and Release was inadmissible, as the language of the release was clear and unambiguous.