Andrew Lewis

Five organizations brought motions for leave to intervene in an appeal concerning the constitutionality of provincial legislation that required the removal of bicycle lanes in Toronto.

The underlying judgment found the legislation violated section 7 of the Charter.

The motion judge granted leave to all five proposed interveners, but limited the scope of their interventions to specific issues such as the positive/negative rights dichotomy, the interpretation of recent section 7 jurisprudence, and the application of equality and child-interest principles to the gross disproportionality analysis.

The interveners were restricted to 10-page factums and brief oral submissions.

This is a case management decision in an appeal of a Superior Court judgment that declared section 195.6 of the Highway Traffic Act infringed section 7 of the Canadian Charter of Rights and Freedoms and could not be justified under section 1 of the Charter.

The decision addresses the timetable for the appeal and the appellants' motion to expedite the hearing.

The Court of Appeal established a detailed timetable culminating in a hearing date of January 28, 2026, balancing the public importance of the issues with the need for proper briefing and consideration of intervention requests.

The applicants challenged the constitutionality of section 195.6 of the Highway Traffic Act, which required the removal of protected bicycle lanes on Bloor Street, University Avenue, and Yonge Street in Toronto and their replacement with lanes for motor vehicle traffic.

The applicants argued that the provision violated section 7 of the Canadian Charter of Rights and Freedoms by putting cyclists at increased risk of injury and death, and that the infringement was arbitrary and grossly disproportionate to the stated objective of reducing traffic congestion.

The court found that the provision was unconstitutional, as the evidence established that removing the protected bike lanes would not achieve the stated objective of reducing congestion and would instead increase the risk of collisions and injuries for all road users.

The court also found that the government had been advised internally that the removal would not reduce congestion, yet proceeded with the legislation anyway.

The application was not moot despite subsequent amendments to the legislation, as the government retained the power and stated intention to remove the bike lanes.

The applicants sought an interlocutory injunction to restrain the implementation of s. 195.6 of the Highway Traffic Act, which requires the removal of certain protected bike lanes in Toronto.

The court found that the applicants met the test for an interlocutory injunction, including a serious issue to be tried, irreparable harm, and a balance of inconvenience favouring the applicants.

The injunction was granted, suspending the operation of the provision until the court’s decision on the constitutional application.

The applicants sought an interlocutory injunction to prevent the removal of certain bike lanes in Toronto, arguing that the removal would unjustifiably infringe the section 7 Charter rights of cyclists by exposing them to a heightened risk of injury or death.

The court found that while there was a serious issue to be tried and irreparable harm was established, the balance of convenience favoured the respondents due to the presumption that legislation serves the public interest.

The motion for an interlocutory injunction was dismissed.

The plaintiffs in a medical malpractice action sought to amend their Statement of Claim to add a proposed defendant, Dr. Sharon Koren, after the two-year limitation period under Section 38(3) of the Trustee Act had expired.

The court dismissed the motion, finding that neither the common law exception of fraudulent concealment nor special circumstances applied to extend the limitation period.

The court noted that Dr. Koren's error in sending an erroneous consult note was made in good faith and corrected promptly, and that the plaintiffs were aware of Dr. Koren's involvement well before the limitation period expired.

The court also gave little weight to the plaintiffs' counsel's affidavit due to issues of privilege waiver and hearsay.

The applicant sought the appointment of an arbitrator pursuant to an arbitration agreement in a co-ownership agreement.

The respondents opposed, arguing the applicant was no longer a party to the agreement due to a prior corporate dissolution and purported divestiture of its interest, and that the claim was statute-barred or an abuse of process.

The court granted the application, applying the competence-competence principle to hold that the arbitrator should first rule on their own jurisdiction, as there was an arguable case that the applicant remained a party and the application itself was brought within the applicable limitation period.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to show cause why their action, initiated in 2011 for copyright infringement, should not be dismissed for delay.

The court examined the plaintiffs' explanation for the 5.5-year delay, which included extensive settlement discussions and a change of counsel, and the defendants' claim of non-compensable prejudice.

The Master found that the plaintiffs provided an acceptable explanation for most of the delay, with any minor unexplained period partly attributable to the defendants' own inaction.

Furthermore, the defendants failed to demonstrate non-compensable prejudice resulting from the plaintiffs' delay.

Consequently, the motion was granted, the action was allowed to proceed, and a timetable for setting the action down for trial by September 30, 2018, was ordered.

Case management was deemed unwarranted at that time.

The Crown prosecuted Alpa Lumber Mills Inc. and its supervisor Van Kham Sichantha for failing to ensure that a rip saw machine (Rip Saw #1) was properly shielded or guarded to prevent product or material being processed from endangering worker safety, contrary to sections 25(1)(c) and 27(1)(a) of the Occupational Health and Safety Act and section 26 of Ontario Regulation 851/90.

A worker was injured when a wooden stake was ejected from the machine at high velocity and pierced his arm.

The defendants argued they had taken all reasonable care by relying on the machine's built-in safety features, regular maintenance, and worker training.

The court found both defendants guilty, holding that the hazard of ejected material was reasonably foreseeable based on the manufacturer's own warnings, and that the defendants failed to take all reasonable steps including obtaining and reviewing the correct operating manual, implementing regular inspection of anti-kickback mechanisms, and ensuring workers did not stand in front of the infeed opening.

Following a trial where both the plaintiff's claim and the defendant's counterclaim were dismissed, the court determined the issue of costs.

The court held that the defendant was entitled to costs because the plaintiff instigated the litigation.

The defendant sought over $16,000 on a partial indemnity scale.

Finding the amount somewhat disproportionate to the true amounts in issue and noting the unsuccessful counterclaim, the court fixed costs payable by the plaintiff to the defendant at $12,000 inclusive.

Following dismissal of a motion by four donor‑distributors seeking to opt back into a class proceeding after previously opting out, the court determined the appropriate costs award.

The responding party sought $28,893 on a partial indemnity basis, while the unsuccessful moving parties argued that costs should not exceed $2,500.

The court found that the motion to opt back in was misguided and largely predictable in outcome based on existing jurisprudence.

Considering the factors in Rule 57.01(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance that costs must be fair and reasonable to the unsuccessful party, the court fixed costs at $10,000 all‑inclusive payable by the unsuccessful moving parties.

Certain class members who had previously opted out of a certified class proceeding sought to opt back into the class action after a settlement was reached and a related third party claim was stayed.

They argued they were confused at the time of opting out and unaware that the third party claim against distributors might be stayed.

The court held that voluntary opt-outs may only be invalidated where there is evidence of misinformation, coercion, or other misconduct undermining the opt-out process.

No such evidence existed, and the explanation for opting out was neither credible nor legally relevant.

Emphasizing the importance of finality and integrity in the opt-out mechanism under the Class Proceedings Act, the motion to opt back into the class proceeding was dismissed with costs.

In a class proceeding settlement approval context, the court considered a motion by class counsel for approval of contingency legal fees equal to one-third of the settlement fund.

The court had initially approved a 25% fee but requested further submissions regarding the higher amount.

Upon reviewing supplementary submissions, the court concluded that contingency fee agreements fully understood and accepted by representative plaintiffs should be treated as presumptively valid.

The court reasoned that focusing on docketed time or retrospective assessments of litigation risk provides little principled guidance and undermines predictability in class action litigation.

Finding that the representative plaintiff understood and supported the fee, that the percentage was consistent with personal injury contingency norms, and that the amount was not unseemly, the court approved the full one‑third contingency fee.

Following earlier reasons dismissing most applicants’ requests for interim advancement of legal expenses from a corporation, the court addressed the costs of the applications.

The respondent corporation sought substantial indemnity costs exceeding $559,000 or alternatively partial indemnity costs, while the applicants argued that costs should remain in the cause of the underlying indemnity issue.

The court held that although the respondent was largely successful, payment of costs should be contingent on the outcome of the trial determining entitlement to indemnity.

The court fixed partial indemnity costs of $25,000 for a related motion and $165,000 for the applications, subject to specific allocations among applicants and exceptions for one successful applicant and another who withdrew participation.

Former directors, officers, and consultants of Look Communications Inc. sought interim advancement of their legal fees to defend against an action brought by Look alleging breach of fiduciary duty regarding bonus and equity cancellation payments.

The court held that s. 124(4) of the CBCA applies to actions brought directly by the corporation, requiring court approval for advancement.

The court found Look established a strong prima facie case of mala fides against the directors and officers, rebutting the presumption of good faith.

Advancement was denied for all applicants except one employee, Dolgonos, whose entitlement arose under an indemnity agreement not subject to s. 124(4).

The defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike portions of an amended statement of claim against a corporate officer personally.

The plaintiff sought damages related to her termination of employment and pleaded tort claims for intentional or negligent infliction of nervous shock and punitive damages against the officer.

The court held it was plain and obvious that the tort claims had no reasonable prospect of success because allowing them would circumvent contractual exclusion and entire agreement clauses contained in the employment agreement.

Applying principles from Supreme Court of Canada jurisprudence concerning limitation of liability clauses and privity, the court found the exclusion clause extended to the officer acting within the scope of employment.

The claims against the officer were struck in their entirety without leave to amend.