Bevin E. Shores

Ten groups brought motions for leave to intervene in an appeal concerning whether a municipal by-law prohibiting individuals from erecting tents or living in public parks violated sections 7 and 15 of the Charter.

The motion judge granted leave to intervene to seven groups, finding they would provide unique and helpful perspectives on issues such as Charter damages, international human rights standards, and the social context of homelessness.

Leave was denied to three groups whose proposed submissions either expanded the scope of the appeal or duplicated arguments already raised by the parties.

A case management conference was held to schedule the next steps in an appeal concerning the eviction of individuals from city parks.

The case management judge set deadlines for perfecting the appeal, filing responding materials, a motion for fresh evidence, and intervention motions.

The judge also granted the parties leave to file factums up to 12,000 words, exceeding the standard limits, due to the extensive evidentiary record involving fourteen appellants.

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 plaintiffs, a commercial landlord and property owner, brought an action against a tenant and its guarantor for damages arising from the breach and repudiation of a ten-year commercial lease.

The tenant had abandoned the premises and delivered a notice of termination, claiming the lease was frustrated by COVID-19 restrictions and that the landlord failed to timely complete agreed-upon improvements.

The court found that the lease commenced on March 1, 2020, its start date was not conditional on the completion of landlord improvements, and the tenant had repudiated the contract.

Consequently, the court dismissed the tenant's counterclaim for misrepresentation and rescission, and awarded the plaintiffs damages for lost rent, mitigation costs, and the diminution of the property's market value.

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 applicants, five individuals experiencing homelessness, sought an interlocutory injunction to prevent the City of Hamilton from enforcing a by-law prohibiting camping in city parks.

They argued that enforcement during the COVID-19 pandemic and housing crisis violated their rights under section 7 of the Charter and the Human Rights Code.

The court applied the RJR-MacDonald test.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm specific to themselves, as they had been offered or received shelter.

The court also found the balance of convenience favoured the City, citing the public interest in safe parks, the City's efforts to provide shelter and supports, and the health and safety risks associated with the encampments.

The motion for an injunction was dismissed.

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 applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs) and medical/rehabilitation benefits.

The Licence Appeal Tribunal found that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a caregiver, nor a complete inability to engage in any employment post-104 weeks, and thus denied the IRBs.

However, the Tribunal found the claimed treatment plans for chiropractic, massage, physiotherapy, and mental health therapy to be reasonable and necessary due to objective evidence of physical and psychological impairments caused by the accident.

The medical benefits and interest on overdue payments were awarded.

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.

The applicant, who was deemed catastrophically impaired following a motor vehicle accident, sought payment for four physiotherapy treatment plans.

The insurer denied the claims on the basis that the applicant had reached maximal medical recovery for his musculoskeletal injuries.

The adjudicator preferred the evidence of the insurer's medical examiners, finding that the applicant's pain complaints had a strong non-organic component and that further physiotherapy would not be beneficial.

The adjudicator also found that the insurer's notices of denial were sufficient.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The respondent insurer denied a treatment plan for physiotherapy, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the applicant suffered from chronic pain syndrome, which removed her from the MIG.

The Tribunal further determined that the proposed physiotherapy treatment plan was reasonable and necessary to provide temporary pain relief and improve function.

The applicant was awarded the $1,877.00 benefit and interest on overdue payments.

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.

The applicant sought statutory accident benefits following a motor vehicle accident.

After her representative was removed from the record due to a breakdown in the solicitor-client relationship, the applicant failed to respond to communications or participate in the proceedings.

The insurer brought a motion to dismiss the application.

The arbitrator granted the motion under Rule 70.3 of the Dispute Resolution Practice Code, finding that the applicant's failure to pursue her claims diligently constituted a withdrawal.

The application was dismissed, and the insurer was awarded $1,521.30 in expenses.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits from the insurer.

After the applicant's representative withdrew as counsel of record due to an inability to locate the applicant, the insurer requested a dismissal of the arbitration application without a hearing.

The arbitrator dismissed the arbitration due to the applicant's non-participation and ordered the applicant to pay the insurer's expenses in the amount of $2,983.97.

The arbitrator declined to award the insurer the return of its $3,000.00 assessment fee because there was insufficient evidence that the applicant failed to submit to an insurer examination or provide required materials.

The respondent was injured in a motor vehicle accident and applied for statutory accident benefits.

After the respondent disappeared, his counsel moved to be removed as representative of record.

The arbitrator allowed the withdrawal without terms and declined to deem the arbitration withdrawn.

The insurer appealed, seeking to hold the former counsel liable for legal expenses and to deem the arbitration withdrawn.

The Director's Delegate rejected the appeal regarding the withdrawal of the arbitration as premature, but accepted the appeal regarding the former counsel's withdrawal and liability for expenses.

The insurer's request for a stay of the arbitrator's decision was denied.

The applicant's representative brought a motion to be removed from the record due to a breakdown in the solicitor-client relationship, having lost contact with the applicant.

The insurer opposed the motion without terms, seeking its costs of $4,900 to be paid personally by the representative firm and requesting the arbitration be deemed withdrawn.

The arbitrator granted the representative's motion to withdraw, finding a fundamental breakdown in communication.

The arbitrator declined to order costs against the representative personally, finding the representative had authority to commence the proceeding to preserve the applicant's rights and was acting in the usual course of the practice of law under s. 282(11.3) of the Insurance Act.

The arbitrator also declined to deem the arbitration withdrawn, as the applicant did not have proper notice of that request.