Bevin E. Shores

The Court of Appeal for Ontario considered whether it could hear an appeal of two interlocutory orders together with an appeal of a final order in a Charter challenge by 14 unhoused individuals against the City of Hamilton.

The interlocutory orders excluded physician evidence and demographic data relevant to the Charter claims.

The Court held that because the interlocutory and final orders were so interrelated, leave to appeal the interlocutory orders would inevitably have been granted, and thus the appeals could be heard together.

The motion to strike the grounds relating to the interlocutory orders was dismissed.

The applicants, 14 homeless individuals, sought a declaration that the City of Hamilton's enforcement of its Parks by-law from August 2021 to August 2023 breached their Charter rights under s.7 (life, liberty, security of the person) and s.15 (equality), and sought damages.

The applicants argued they were prevented from staying overnight and forced to move daily due to insufficient accessible shelter beds.

The court found that applicants were not prevented from staying overnight and declined to extend Charter protection to allow indefinite daytime encampments, disagreeing with prior jurisprudence (Victoria v. Adams, Waterloo v. Persons Unknown) on the basis that encampments are inherently dangerous and unsanitary, and the City's actions were not in bad faith.

The court also found no s.15 violation, as homelessness is not an enumerated or analogous ground, and the by-law did not differentially treat disadvantaged groups.

The application was dismissed.

The Corporation of the City of Windsor sought to continue an injunction against "Persons Unknown" who were blocking the Ambassador Bridge.

The court had previously granted an interim injunction.

The City argued that protesters continued to breach municipal by-laws and the prior court order, and there was a risk of continued blockades.

The court found that the City established a strong prima facie case of by-law breaches and defiance of the prior order.

Applying the test for statutory injunctions under s. 440 of the Municipal Act, 2001, the court granted a permanent injunction, emphasizing the public interest in upholding the rule of law and that Charter rights do not protect unlawful conduct.

The plaintiff, Marnic Geldhof, brought a motion to compel a representative of the defendant Economical Mutual Insurance to reattend an examination for discovery and answer refused questions.

The defendants resisted, claiming litigation/settlement privilege over the information.

The core issue was whether communications, including a "without prejudice" letter, lost their privilege when the plaintiff alleged they formed a contract.

The court held that the plaintiff was entitled to question the defendant's representative about communications related to the terms and existence of the alleged contract, but general investigative notes and file contents remained privileged.

The motion was partially granted.

The defendant, Gore Mutual Insurance Company, brought a motion to consolidate two actions (CV-19-108 and CV-19-109) commenced by the plaintiffs, David Coon and Susan Leslie Coon.

Both actions arose from property damage due to a tree falling and subsequent flooding.

The first action ("Coverage Action") concerned the denial of an insurance claim for a destroyed rental unit, based on contractual interpretation.

The second action ("Negligence Action") related to the defendant's alleged negligent instruction to stop mitigation efforts, leading to further property damage.

The court applied Rule 6.01 of the Rules of Civil Procedure and a detailed 17-factor test for consolidation, finding that despite common parties and originating incident, the legal issues and heads of damages were distinct.

The motion for consolidation was dismissed, with the court ordering that the actions be tried together or one after the other as determined by the trial judge.

Costs were awarded to the plaintiffs.

The applicant church suffered a fire loss and submitted a claim to its insurer.

The insurer obtained quotes for repair, and the applicant hired a quantity surveyor to critique the insurer's scope of work.

The insurer refused to cover the surveyor's fees, arguing the policy only covered professionals 'required by the Insurer'.

The court found the policy language ambiguous and applied general rules of contract construction.

The court held that the policy covered professional fees incurred by the insured to obtain particulars of the loss, as those particulars were required by the insurer.

The application was allowed and the insurer was ordered to pay the surveyor's fees.

An appeal concerning whether the abuse of process doctrine prevented Federated from leading evidence that a driver was insured at the time of an accident, despite a prior conviction for driving without insurance.

The driver's vehicle had been insured by Intact, which claimed it had cancelled the policy before the accident.

A priority dispute between the insurers proceeded to arbitration.

The arbitrator permitted Federated to lead evidence that Intact had not followed required cancellation procedures, meaning the driver was in fact insured.

The application judge reversed this decision, but the Court of Appeal allowed the appeal and restored the arbitrator's order, holding that the abuse of process doctrine did not prevent relitigation in these circumstances.