Braxton Murphy

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.

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 court dismissed motions by the defendants to strike out the plaintiff’s statement of claim on the basis of absolute privilege.

The case concerns whether statements made in an affidavit in another proceeding, about a non-party, are protected by absolute privilege.

The court held that absolute privilege is subject to exceptions and applies only to statements made “with reference to the inquiry.” Without the full context of the affidavit and related documents, the court could not determine that the claim was bound to fail.

The court also addressed the application of absolute privilege to counsel and found no basis to treat counsel differently in this context.

Costs were awarded to the plaintiff.

This is a costs endorsement following an appeal where the appellants' appeal was allowed.

The Court of Appeal addressed the disposition of costs for a motion previously heard in the Superior Court.

The appellants sought $20,098.48 for the motion costs.

Applying s. 137.1(8) of the Courts of Justice Act, the court fixed the motion costs at the requested amount and ordered them payable to the appellants by the respondents, conditional on the appellants' success in the ongoing main action.

The court noted the respondents' original motion had a low prospect of success.

The appellants, a cat rescue operation and its director, appealed the dismissal of their defamation action under s. 137.1 of the Courts of Justice Act.

The motion judge had dismissed the action against all defendants, including non-moving parties, and awarded costs.

The Court of Appeal found that the motion judge erred by misapplying the s. 137.1 criteria, specifically by using a higher standard for assessing the substantial merit of the claim, mischaracterizing the "sting" of the defamation, relying on inadmissible hearsay, and improperly assessing the harm suffered by the appellants.

The Court also held that the motion judge erred in dismissing the action against defendants who had not brought a motion to dismiss.

The appeal was allowed, the dismissal order set aside, and the matter remitted for further proceedings.