Andrew Lewis

The provincial legislature passed legislation to remove certain bicycle lanes in Toronto to reduce traffic congestion.

The respondents successfully challenged the legislation in Superior Court, arguing it violated section 7 of the Charter by depriving cyclists of security of the person in an arbitrary and grossly disproportionate manner.

On appeal, the Court of Appeal reversed the decision, holding that the Charter does not create a positive right to bicycle lanes and that the legislature's decision to repeal or amend prior policy choices regarding road use does not violate section 7.

The Court found the legislation was neither arbitrary nor grossly disproportionate.

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 moving parties (Ontario) sought to schedule a motion for leave to appeal and a motion to stay an earlier order on an expedited basis.

The court declined to schedule the stay motion before a single judge prior to the leave to appeal motion, noting the responding parties needed time to respond to new affidavit material and that the matter was better suited for a panel.

The court established a schedule for the exchange of materials for the leave to appeal motion to be heard in writing by a panel.

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 brought an application for judicial review seeking an order requiring the respondent ministries to conduct an environmental assessment for the redevelopment of the West Island at Ontario Place.

Shortly after the application was commenced, the provincial government passed the Rebuilding Ontario Place Act, 2023, which explicitly exempted the Ontario Place lands from the Environmental Assessment Act.

The respondents brought a motion to quash the application.

The Divisional Court granted the motion, finding it was plain and obvious the application could not succeed given the statutory exemption.

The court also declined to exercise its discretion to hear the moot issue of whether the government's conduct prior to the new legislation was unlawful.

No costs were awarded as the applicant was a public interest litigant.

The respondents moved to quash an application for judicial review brought by Ontario Place for All Inc. regarding the redevelopment of Ontario Place's West Island.

The respondents argued that the newly enacted Rebuilding Ontario Place Act, 2023 exempted the project from the Environmental Assessment Act, making the application moot or bound to fail.

The single judge of the Divisional Court declined to quash the application, finding that the issues raised significant public law concerns regarding governance and environmental protection that warranted consideration by a full panel of the Divisional Court.

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 court issued a scheduling endorsement setting a motion date for April 5, 2022.

The responding party's counsel advised that preparation was hampered because the client was incarcerated in Hong Kong.

The court formally requested the Commissioner of Correctional Services in Hong Kong to grant the solicitors enhanced access to their client to allow meaningful preparation for the motion.

The respondents brought a motion for security for costs in an application where the applicant sought the appointment of an arbitrator pursuant to a co-ownership agreement.

The respondents argued that the applicant was a nominal corporation with insufficient assets in Ontario.

The court found that the respondents met the initial onus under Rule 56.01(1)(d) and that the applicant failed to rebut it.

Applying a holistic approach, the court ordered the applicant to post security for costs in the amount of $15,000.

The defendant brought a motion for security for costs against the plaintiff, a foreign corporation suing for an unpaid invoice.

The plaintiff had previously obtained summary judgment, which was set aside on appeal solely because the application of the International Sales Conventions Act had not been considered.

The court dismissed the motion, finding it would be unjust to order security for costs given the plaintiff's prior success on the merits and the late stage of the proceeding.

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 plaintiff underwent emergency surgery performed by the defendant thoracic surgeon to repair a paraesophageal hiatus hernia.

During the operation, a bougie became stuck in the plaintiff's esophagus, and its removal caused a de-gloving injury to the esophagus.

Several weeks later, the plaintiff suffered a severe stroke.

The plaintiffs sued the surgeon for medical malpractice, alleging negligence in the performance of the surgery and that the resulting esophageal injury caused the stroke.

The court dismissed the action, finding that the surgeon met the standard of care and that the stroke was cardioembolic, caused by atrial fibrillation, and unrelated to the esophageal injury.

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 a trial arising from the sale of a restaurant business, the court dismissed both the seller's claim on promissory notes and the buyer's counterclaim for misrepresentation.

The court held the written agreement identified a corporate purchaser and, applying the parol evidence rule, rejected the assertion of a parallel oral agreement imposing personal liability on the individual defendant.

The court further found no basis to pierce the corporate veil because there was no fraudulent intent, diversion of corporate assets, or improper conduct.

The counterclaim also failed because the evidence established a misunderstanding about monthly revenues rather than fraudulent inducement.

The plaintiffs in a medical malpractice action sought leave to amend their statement of claim to substitute two identified physicians for previously named fictitious “Doe” defendants after the expiry of the limitation period.

The court considered whether the substitution constituted correction of a misnomer under Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002.

Applying the “litigation finger” test, the court held the pleadings sufficiently identified the intended physicians through details of the hospital, department, treatment period, and alleged conduct.

The court found no material prejudice arising from the delay and determined that the plaintiffs had exercised reasonable diligence in attempting to identify the physicians through medical records and inquiries.

Leave to amend and substitute the physicians for the Doe defendants was granted.