Brian John Gover

In a constitutional compliance review arising from Robinson-Superior Treaty augmentation litigation, the moving parties challenged both the Crown's engagement process and the compensation amount set after negotiations failed.

The court held that although aspects of engagement, including late disclosure of reliance on per-capita benchmarking against a related treaty settlement, caused serious relational harm, the reviewing role required deference to a range of honourable discretionary outcomes.

Applying a sui generis review framework grounded in honour of the Crown and reconciliatory justice, the court concluded the Crown's ultimate compensation determination of $3.6 billion plus agreed costs was justified in the legal and factual context.

The court therefore declined to intervene in the compensation decision while also addressing allocation issues between federal and provincial Crown responsibility in the reasons.

The applicants sought court review of legal fees claimed by six lawyers (the Legal Team) who represented the Robinson Huron Treaty Litigation Fund in litigation to enforce the Crown's obligations under the Robinson Huron Treaty of 1850.

The Legal Team claimed $510 million as a 5% contingent success fee on a $10 billion settlement.

The court found the Partial Contingency Fee Agreement was neither fair when signed nor reasonable at the time of hearing.

The court determined the Legal Team acted in conflict of interest when advising clients on their own fees and failed to ensure clients received independent legal advice.

The court assessed the fair and reasonable value of the Legal Team's services at approximately $40 million (double their billable fees of $23 million plus $6.5 million in disbursements already paid), rejecting the $510 million claim as champertous and disproportionate to the settlement amount.

The Mayor of North Bay requested an Integrity Commissioner inquiry into his own expense claims and use of a City-issued corporate credit card.

The Integrity Commissioner investigated whether the Mayor's use of the credit card for personal expenses, which were subsequently reimbursed or offset against mileage allowances, contravened the municipal Code of Conduct.

The Commissioner found no breach of Article VI regarding policy compliance, but concluded that the Mayor contravened Article XII by using City funds for personal family meals, hockey season tickets, and a golf membership, even though the funds were later repaid.

No remedial action was recommended, as the funds had already been reimbursed.

The applicants brought preliminary objections to the admissibility of two pieces of evidence in an application proceeding concerning contingent fee recognition.

The respondent law firm and lawyers sought recognition of contingent fees claimed under a Partial Contingency Agreement dated June 17, 2011.

The court ruled on the admissibility of an expert report from a former Federal Court judge and a third affidavit from one of the respondent lawyers.

The court found that expert evidence on the complexity of the case, risks involved, and results achieved was not necessary, as these matters were within the experience and knowledge of the court and were adequately addressed through extensive evidence and comprehensive legal submissions.

The court also found the expert lacked the requisite qualifications to opine on the specific topics.

The court reserved judgment on the admissibility of the third affidavit pending further consideration of its relevance.

The moving parties brought motions for leave to appeal the decision of Steele J. dated October 30, 2024.

The Divisional Court dismissed the motions for leave to appeal without costs.

The applicants sought an assessment of a $510 million partial contingency fee paid to the lawyer respondents by the Robinson Huron Treaty Litigation Fund (RHTLF) and a determination of whether the $10 billion settlement proceeds were assets of the RHTLF Trust.

The court directed an assessment of the legal fees under the Solicitors Act, finding that the First Nations were liable to pay the bills and that special circumstances warranted assessment.

The court also confirmed that the settlement proceeds are assets of the Trust.

The applicant, a residents' association, sought judicial review of a municipal council decision approving a site plan application and heritage impact assessment for a large warehouse development in a heritage conservation district.

The applicant argued the council breached its procedural by-law by reconsidering the application without notice and acted in bad faith.

The Divisional Court granted the applicant public interest standing and found the application was not moot.

However, the court dismissed the application, holding that the city did not owe the applicant a duty of procedural fairness.

While the council did breach its procedural by-law regarding notice for the reconsideration motion, the breach did not amount to illegality or bad faith sufficient to quash the decision.

The appellant lawyer was the subject of a Law Society discipline proceeding that was ultimately dismissed after 56 days of hearing.

He sought costs against the Law Society, which were denied by the Hearing Division and the Appeal Division.

On appeal to the Divisional Court, the court found that the Law Society's investigation was one-sided and procedurally unfair, and its positions on disclosure were unreasonable.

While the court upheld the finding that the proceeding was warranted at the outset, it set aside the decisions denying costs and remitted the matter to a new panel to determine whether the appellant is entitled to costs wasted by the Law Society's undue delay, negligence, or other default.

The appellant, Hummel Properties Inc., appealed a lower court decision that dismissed its application to quash interim control by-laws enacted by the Town of Niagara-on-the-Lake.

The by-laws prohibited the subdivision of land, including condominium creation, and were challenged on grounds of illegality (not relating to "land use" under the Planning Act, infringing s. 38(7) by applying a second interim control by-law, and illegal process) and bad faith.

The Court of Appeal found that the by-laws were illegal because they purported to control land division, not land use, and violated s. 38(7) by applying a second interim control by-law to the same land.

The court also found errors in the application judge's assessment of the process and bad faith.

The appeal was allowed, the by-laws quashed, and the matter remitted to the Superior Court for a trial on damages for negligent misrepresentation and misfeasance in public office.

Batchewana First Nation sought to be joined as a necessary party plaintiff or, alternatively, for leave to intervene as an added party plaintiff in the Robinson Superior Treaty action, which concerns claims for augmented annuities.

The motion was dismissed.

The court found that Batchewana, a beneficiary of the Robinson Huron Treaty, was not a necessary party to the Superior action, as its claim for augmented annuities based on "just claims" to lands within the Superior Territory was inconsistent with its prior position in the Huron action and did not directly relate to the Superior Treaty's interpretation or compensation.

The court also found that Batchewana did not meet the criteria for intervention and that its proposed intervention would cause undue delay and prejudice to the complex, multi-stage litigation.

The Auditor General of Ontario sought declarations that it had the authority under the Auditor General Act to compel grant recipients, specifically Laurentian University, to provide information and records subject to solicitor-client, litigation, or settlement privilege for audit purposes.

Laurentian University argued that the Act did not contain the clear and unambiguous language required to abrogate such fundamental privileges.

The court dismissed the Auditor General's application, holding that sections 10 and 27.1 of the Auditor General Act did not explicitly or unambiguously confer the power to compel disclosure of privileged information, and that privilege cannot be abrogated by inference.

The applicant, an immigration lawyer, sought judicial review of Legal Aid Ontario's decision to remove him from its immigration and refugee panel due to billing irregularities.

The applicant argued the decision was unreasonable and procedurally unfair because he was denied an oral hearing.

The Divisional Court dismissed the application, finding the decision maker's reliance on admitted billing errors to establish a pattern of violations was reasonable.

The court also held that the administrative nature of the decision and the statutory scheme did not require an oral hearing, as the decision was based on admitted facts rather than credibility findings.

The applicants in a constitutional application requested leave to file factums exceeding the 30-page limit prescribed by the Practice Direction.

The Attorney General opposed the request.

The court denied the request, emphasizing that the 30-page limit is a serious policy intended to focus counsel on the issues, and that leave is exceptional and granted sparingly.

The court noted that since there was still a week before the factums were due, counsel had sufficient time to produce shorter, more focused versions.

The moving party sought an extension of time to review interlocutory rulings and a costs order made by a judge who had previously denied their motion for leave to appeal a Land Planning Appeal Tribunal decision regarding a new hospital site.

The Divisional Court dismissed the motion, finding that the interlocutory rulings merged with the final decision denying leave, rendering them moot.

The court held that the proposed review was an abuse of process attempting to collaterally attack a final decision, and that the costs order was well within the motions judge's discretion.

The applicant sought judicial review of a decision by the Chief Electoral Officer to refer complaints to the Attorney General as apparent contraventions of the Elections Finances Act.

The Divisional Court dismissed the application, finding that the decision did not affect the legal rights, interests, property, privileges, or liberty of any person.

Applying the Court of Appeal's reasoning in PC Ontario Fund, the court held the decision was not susceptible to judicial review and did not engage section 2(b) Charter rights.

The moving party, a residents association, sought leave to appeal a decision of the Local Planning Appeal Tribunal (LPAT) that dismissed its appeals against the City of Windsor's approval of an Official Plan Amendment and Zoning By-law Amendment.

The amendments facilitated the location of a new regional acute care hospital.

The moving party argued the LPAT erred in law regarding emergency services policies, First Nations consultation, climate change impacts, and the assessment of expert evidence.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the LPAT's decision on any question of law.

The court also ordered the moving party to pay partial indemnity costs, despite recognizing it as a public interest litigant, because the motion lacked merit and it would be unfair to shift the costs to the municipal taxpayers and the hospital.

A case management conference was held to set procedural directions for a motion for leave to appeal a Local Planning Appeal Tribunal decision.

The court ordered the hearing to proceed via video conference and provided detailed instructions for the electronic filing of documents, factums, and compendiums.

In a professional discipline hearing, the member admitted allegations involving sexual impropriety with a patient who was also an employee, and longstanding sexual harassment and degrading conduct toward staff in a dental practice.

The panel found professional misconduct proven on the member’s admissions and the agreed statement of facts.

Applying the public-interest standard governing joint submissions on sanction, the panel accepted a joint submission for reprimand, immediate revocation of the certificate of registration, and $10,000 in costs.

The panel held that revocation was necessary for public protection, denunciation, deterrence, and maintenance of public confidence in the profession.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

A pharmacist challenged the Ontario College of Pharmacists' jurisdiction to prosecute discipline charges after the College failed to comply with mandatory statutory timelines for processing a written complaint under section 25 of the Health Professions Procedural Code.

Instead, the College accepted the complainant's withdrawal and proceeded with a registrar-initiated investigation under section 75.

The Divisional Court quashed the charges, finding the College lost jurisdiction through non-compliance.

The Court of Appeal reversed, holding that written complaints may be withdrawn when the College agrees and the matter proceeds through another statutory process with full procedural safeguards.

The court balanced the public interest in regulating the profession against the accused member's fair hearing rights, finding no procedural unfairness or prejudice to the respondent.