Brent Kettles

Greenpeace Canada brought an application for judicial review seeking a declaration that the Ontario government unlawfully cancelled the cap and trade program without following the public consultation requirements of the Environmental Bill of Rights (EBR).

The Minister had claimed an exemption under the EBR, arguing that the recent general election was a substantially equivalent process of public participation.

The Divisional Court found that the election was not substantially equivalent and the government failed to comply with the EBR.

However, the application was dismissed because the government subsequently passed valid legislation repealing the cap and trade program and barring proceedings, rendering the requested declaratory relief of no practical effect.

The Crown defendants moved to strike the plaintiff's civil claim alleging negligence, Charter breaches, and bad faith arising from the Crown's intervention in a private prosecution and the OIPRD's handling of a police complaint.

The Superior Court of Justice granted the motion and struck the claims without leave to amend.

The court found the claims against the Crown were barred by issue estoppel and prosecutorial immunity, while the claims against the OIPRD constituted an impermissible collateral attack and were barred by statutory immunity under the Police Services Act.

The respondents brought a motion to quash an application for judicial review on the basis of mootness.

The underlying application challenged the Minister's decision to invoke an exception under the Environmental Bill of Rights, bypassing public consultation for revoking the cap and trade program by claiming the recent provincial election was a substantially equivalent process.

The Divisional Court dismissed the motion to quash, finding that the scope of the Minister's exception power remains a live controversy despite the subsequent repeal of the relevant legislation.

The court further held that even if the matter were moot, it would exercise its discretion to hear the application to provide clarity on the statutory exemption.

The Ontario government cancelled an electric car subsidy program but extended it for a two-month transition period.

The applicant, Tesla Motors Canada ULC, was explicitly excluded from this transition program by a condition limiting it to "franchised automobile dealerships." Tesla sought judicial review, arguing the exclusion was arbitrary, unlawful, and made for an improper purpose without procedural fairness.

The court found the decision to exclude Tesla was arbitrary, unrelated to the stated policy goal of protecting small to mid-sized dealers, and constituted an egregious exercise of discretion for an improper purpose.

The court quashed the minister's decision to implement the transitional program.

Electricity ratepayers brought an action seeking damages and declaratory relief concerning the sale of shares in Hydro One, alleging that the Premier and Ministers acted in bad faith to reward political donors and obtain further donations to the Ontario Liberal Party.

The motion judge struck out the claim under Rule 21, finding it was not justiciable as it concerned core policy and the pleadings were inadequate to support an inference of bad faith.

The appellants appealed, arguing the motion judge erred in assessing the facts in isolation, misconstruing material facts, and failing to accept pleaded facts as true.

The Court of Appeal dismissed the appeal, holding that the appellants' allegations were insufficient to plead bad faith and that accepting such a pleading would undermine the immunity afforded to core policy decisions.

The proposed intervenors, former appellate counsel for the applicant, brought a motion to be added as parties to the applicant's Rule 59.06 motion, which sought to set aside a previous Divisional Court order based on allegations of ineffective assistance of counsel.

The applicant consented to the intervention but sought to restrict the intervenors from seeking costs or making submissions on underlying legal issues.

The court granted the intervention with full party rights, declined to impose the requested restrictions, and awarded costs of the motion to the intervenors.

The plaintiffs, Hydro One ratepayers, brought an action for misfeasance in public office against the Premier and Ministers of Finance and Energy regarding the privatization of Hydro One.

They alleged the sale was motivated by improper purposes to reward Liberal Party benefactors.

The defendants moved to strike the claim.

The court granted the motion, finding the decision to sell Hydro One shares was a core policy decision authorized by the Electricity Act, 1998, and thus immune from judicial review in a civil tort action absent bad faith, which was not adequately pleaded.

The applicant filed a human rights application alleging discrimination by the Office of the Public Guardian and Trustee on the basis of place of origin, disability, and family status during a guardianship application process.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

The Tribunal found that the applicant failed to point to any evidence linking the alleged unfair treatment, such as delays and requests for specialized identification documents, to a prohibited ground of discrimination.

The application was dismissed for having no reasonable prospect of success.

The appellant appealed the dismissal of an application challenging the Crown's assumption of a private prosecution and subsequent withdrawal of charges against a police officer for alleged assault in custody.

The appellant had commenced a private prosecution against Constable Labreche, and after a prima facie case was found, the Crown intervened to assume carriage.

The appellant challenged this intervention in the Superior Court, alleging breach of Charter rights and bias.

The application was dismissed.

The Crown subsequently withdrew the charge.

The appellant brought a second application asserting constitutional challenges to the legislative regime permitting Crown intervention.

The Court of Appeal dismissed the appeal on the basis of issue estoppel, finding that both applications raised identical issues regarding the Crown's decision to take over the prosecution and the appellant's exclusion from it.

The applicant sought a conditional stay of proceedings pending the appointment of state-funded counsel, arguing indigence and the necessity of counsel for a fair trial given the serious and complex charges.

The Crown opposed, alleging lack of financial transparency and prudence.

The court dismissed the application, finding that the applicant failed to discharge the heavy burden of proving indigence, having not provided sufficient financial documentation, made reasonable sacrifices, or prioritized legal fees over other expenditures.

The applicant sought declarations that s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorney’s Act were unconstitutional, and to set aside the Attorney General's intervention and withdrawal of a private prosecution.

The court dismissed the application, finding that the issues raised had already been judicially determined in prior proceedings (a recusal application and an extension of time to appeal), and therefore the doctrine of issue estoppel applied.

Costs were awarded against the applicant.

The Attorney General for Ontario sought judicial review of an arbitration award between CUPE Local 27 and the Greater Essex County District School Board, arguing the arbitrator erred in interpreting s. 177 of the Education Act.

The Divisional Court dismissed the application for the reasons given in a related Stated Case (2016 ONSC 2361), finding the result was the same regardless of whether the standard of review was correctness or reasonableness.

Costs of $5,000 were awarded to CUPE Local 27.

The Minister of Education brought a Stated Case asking the Divisional Court to determine whether the Education Act permits school boards to pay for life insurance and health benefits for retired employees over 65 years of age.

The Minister argued that the Act only permits payments to current employees and that specific statutory authority is required for such expenditures.

The Court held that while ss. 177(3) and 177(4) do not authorize these payments, other sections of the Act, including ss. 58.5(1), 170(1)18, 171(1)3, and 177(1), when read together and in context, provide the necessary authority.

The Court found that school boards have the power to negotiate and pay for post-retirement benefits as part of employee compensation packages.

The applicant sought an order for state-funded counsel under the Canadian Charter of Rights and Freedoms, section 7, for a child protection trial where the Children's Aid Society sought a supervision order.

The applicant's section 7 rights to security of person were engaged because the proposed supervision order would significantly restrict her parental role, force her to become a single parent, and subject her family to ongoing state intrusion.

The court found the applicant was indigent and ordered the state to provide counsel, establishing that section 7 protections extend beyond cases involving loss of custody to include highly intrusive supervision orders.

The applicant, charged with fraud over $5,000, sought reconsideration of a prior decision denying a stay of proceedings pending the appointment of state-funded counsel under a Rowbotham order.

The court reconsidered the issue after receiving additional evidence regarding the proceeds of the applicant’s home sale and psychiatric evidence concerning his ability to represent himself.

Although the court accepted that the applicant appeared indigent and lacked access to the sale proceeds, the psychiatric evidence remained insufficient and procedurally deficient to establish that he could not conduct his own defence.

The applicant failed to properly introduce expert evidence or provide adequate foundation for the medical opinions.

The court concluded the applicant had not met the requirement that counsel was necessary to ensure a fair trial.

The accused, charged with fraud over $5,000, sought a conditional stay of proceedings unless the Attorney General provided publicly funded counsel pursuant to a Rowbotham order.

Legal Aid had denied coverage and characterized the accused’s financial disclosure as incomplete and not credible.

The court considered whether counsel was necessary for a fair trial and whether the accused was indigent.

The judge found the case was not beyond the accused’s abilities and that he was familiar with the underlying transactions, could use an interpreter, and had previously managed a significant business enterprise.

The court also found the accused was not forthright about ownership and proceeds from the sale of a home and therefore failed to establish indigence.

The request for a Rowbotham order was dismissed.

The applicant sought prerogative relief challenging the Attorney General’s decision to intervene in and assume carriage of a private prosecution against a police officer for alleged assault during an arrest.

The applicant alleged bias and abuse of process, arguing that Crown counsel’s handling of prior charges against him and the disclosure of a police video demonstrated partiality.

The court held that the Attorney General has authority to intervene in private prosecutions and that such prosecutorial decisions fall within core Crown discretion, subject to review only for abuse of process.

The evidence relied on by the applicant was largely hearsay and insufficient to establish a reasonable apprehension of bias or abuse of process.

The court found no improper conduct in the Crown’s disclosure practices or earlier settlement discussions.

The applicant alleged that the respondent doctor sexually harassed her by unnecessarily exposing her breast during a physical examination for chronic pain.

The respondent doctor testified that examining the pectoralis muscles was medically necessary to assess her condition.

An expert witness in pain management supported the respondent's methodology as meeting the standard of practice.

The Tribunal found that the applicant failed to establish discrimination or harassment on the basis of sex, accepting the medical necessity of the examination.

Application dismissed.

The appellant appealed a probation term imposed following guilty pleas to criminal harassment, multiple counts of mischief under $5,000, breaches of recognizance, possession of a prohibited weapon, and assault with intent to resist arrest.

The sentencing judge had imposed a ten‑month conditional sentence followed by three years’ probation.

The appellant argued that the probation period should be reduced to one year and that the sentencing judge failed to properly consider mitigating factors including guilty pleas, pretrial custody, and rehabilitation prospects.

The court held that appellate intervention requires an error in principle or a demonstrably unfit sentence and found that the sentencing judge properly considered the mitigating factors and reasonably emphasized deterrence and protection of the victims.

The sentence, including the maximum probation period, was upheld.

The applicant alleged racial discrimination in the provision of medical services after the respondent's receptionist's boyfriend uttered racial slurs at him, and the respondent subsequently discontinued the doctor-patient relationship.

The Tribunal found that the respondent could not be held vicariously liable under s. 46.3 of the Human Rights Code for the boyfriend's actions, as the boyfriend was not an agent acting in the course of employment.

The Tribunal also found that the discontinuation of the doctor-patient relationship was not tainted by racial discrimination, but was a response to the applicant's unreasonable and inappropriate behaviour towards the receptionist.

The application was dismissed.