Catherine D. Aitken

The appellant appealed a preliminary decision of the Health Services Appeal and Review Board, which held that it lacked jurisdiction to declare a provision of the Ministry of Health and Long-Term Care Appeal and Review Boards Act constitutionally invalid.

The Divisional Court dismissed the appeal, finding that section 6(3) of the Act explicitly removes the Board's jurisdiction to inquire into or decide the constitutional validity of an Act or regulation.

However, the Court clarified that the Board retains jurisdiction to consider whether the application of the statutory regime or the respondent's policies infringe the appellant's Charter rights.

The appellant appealed a trial decision dismissing its claim for damages in negligence or breach of contract resulting from commercial carpet cleaning.

The Divisional Court held that the trial judge's refusal to draw inferences of negligence from circumstantial evidence was open to him and did not constitute a palpable and overriding error.

The appeal was dismissed.

The applicant brought an application for judicial review challenging the vires of Ontario Regulation 552 under the Health Insurance Act, arguing that its provisions regarding out-of-country medical treatment contravened the Canada Health Act.

The applicant abandoned any constitutional or Charter challenges.

The Divisional Court dismissed the application, following the precedent in Collett v. Ontario (Attorney General).

The court held that the consequence of failing to satisfy the Canada Health Act criteria is a matter of intergovernmental consultation and within the discretion of the Governor in Council, rendering the issue non-justiciable and the challenge premature.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her discrimination complaints as an abuse of process.

The Tribunal found that the applicant had fabricated letters from co-workers to support her claims and lacked credibility.

The Divisional Court held that the Tribunal's decision was reasonable, well within its power to control its own process, and protected by a highly deferential standard of review.

The application for judicial review was dismissed with costs.

The moving party brought a motion to quash an application for judicial review of a decision by the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario.

The Divisional Court granted the motion, holding that the applicant must follow the established legislative process and exhaust alternative remedies before seeking judicial review.

The application was quashed without prejudice to the applicant's right to bring a new application for judicial review against the Health Professions Appeal and Review Board within sixty days.

A construction company brought a motion for summary judgment seeking damages after its employee fraudulently forged company cheques and deposited them into a third party’s bank account.

The employee forged signatures on twelve cheques and deposited them into the cohabiting partner’s account, from which most funds were withdrawn.

The court held that the tort of conversion is one of strict liability and that depositing funds belonging to another into an account without legal entitlement constitutes conversion, regardless of the account holder’s innocence or lack of knowledge of the fraud.

Summary judgment was granted against both the employee and the account holder for the remaining loss.

The court also declared that the employee’s liability arose from fraud and misappropriation while acting in a fiduciary capacity and would not be released in bankruptcy.

The plaintiffs brought a motion seeking an interlocutory injunction restraining the defendants from interfering with or evicting them from commercial premises used to operate an auto repair garage.

In the alternative, they sought interim relief from forfeiture of a commercial lease after failing to exercise an option to renew within the contractual deadline.

The court held that although there were serious issues to be tried concerning the lease terms and the parties’ conduct, the plaintiffs failed to establish irreparable harm if the injunction was not granted.

The court also found that the tenant had not demonstrated diligent efforts to comply with the lease renewal provisions and therefore did not meet the requirements for relief from forfeiture.

The motion was dismissed.

Following summary judgment in favour of a mortgagee on a first mortgage, the court determined costs arising from the motion and the broader action.

The mortgagee sought substantial costs against the mortgagors and guarantor, while the defendants sought costs against a second mortgagee whose summary judgment motion dismissing their third party claims failed.

The court held that the mortgagee was entitled to costs but found the amounts claimed excessive and reduced them, allocating portions jointly and severally among the defendants.

The court also found the second mortgagee acted unreasonably in bringing a summary judgment motion involving credibility issues and ordered substantial indemnity costs in favour of the guarantor.

Requests to stay enforcement of the summary judgment and costs orders pending related insurance litigation were denied.

The Crown brought a pre‑trial application under s. 486.1 of the Criminal Code seeking permission for support persons to accompany three witnesses while testifying.

The defence consented to support persons for two witnesses with acknowledged mental disabilities but opposed the request for a third witness, arguing insufficient evidence of disability or necessity.

The court considered the statutory presumption under s. 486.1(1) and the discretionary standard under s. 486.1(2), including factors such as the witness’s age, the nature of the offence, and the witness’s relationship with the accused.

The court found no evidence that the third witness suffered from a mental or physical disability or required support to provide a full and candid account.

The application was granted for the two witnesses under s. 486.1(1) but denied for the third witness under both subsections.

On a pre‑trial motion in a murder prosecution, the accused sought relief concerning the Crown’s intention to rely on a written record to support a KGB application admitting hearsay statements of the deceased under the principled exception.

The defence argued it should be able to test the reliability of the statements through cross‑examination of the civilian witnesses who reported them.

The court held that although the Crown could proceed on the written record, fairness required that the defence be permitted to cross‑examine the relevant witnesses on the KGB voir dire.

To avoid prejudice to the accused in locating or preparing potentially hostile witnesses, the Crown was required to produce them if the defence elected to call them.

The accused, an acting operations supervisor at Citizenship and Immigration Canada, was charged with multiple counts of fraud on the government and breach of trust by a public officer.

She participated in a joint enterprise with an immigration consultant to expedite and favorably process immigration applications in exchange for money and benefits.

The court found that the accused breached the standard of responsibility and conduct demanded of her office by disclosing confidential information, providing preferential treatment, and accepting benefits.

The accused was found guilty on all counts except one count of bribery.

During a trial for immigration fraud, the Crown brought a KGB application to admit the prior inconsistent statements of a hostile witness, specifically his guilty pleas and an Agreed Statement of Facts from his own related trial.

The witness had been uncooperative and claimed memory loss regarding the respondent's involvement.

The court found that the criteria of necessity and threshold reliability were met on a balance of probabilities.

The application was granted, and the statements were admitted to prove the truth of their contents, although the court ultimately assigned them virtually no weight.

During a criminal trial for immigration-related offences, the Crown brought an application under s. 9(1) of the Canada Evidence Act to declare its own witness adverse and hostile.

The witness, a former co-accused who had previously pled guilty, was evasive, repeatedly claimed memory loss, and refused to refresh his memory from his prior Agreed Statement of Facts and preliminary inquiry testimony.

The court found the witness to be both adverse under the Act and hostile at common law, noting his clear motive to protect the accused and his refusal to provide helpful evidence.

The Crown was granted leave to cross-examine the witness at large.

In child protection proceedings, the applicant society brought a motion for summary judgment seeking a final order granting sole custody of the child to the father with supervised access to the mother.

The evidence demonstrated a lengthy history of domestic violence, substance abuse, mental health instability, and inconsistent participation in treatment and parenting programs by the mother.

The father had cooperated with the society, completed counselling and anger management programs, and was providing stable care for the child.

The mother filed no responding evidence and sought an adjournment at the hearing.

The court held there was no genuine issue requiring a trial and granted sole custody to the father under the Child and Family Services Act with conditions and supervised access to the mother.

The plaintiff, Scotia Mortgage Corporation, brought a motion for summary judgment against the mortgagors and the guarantor for default under a first mortgage.

The property had been destroyed by fire, and insurance proceeds were insufficient to cover the mortgage debt due to a rebuilding clause.

The guarantor defended on grounds including non es factum and material alteration of the mortgage.

The court granted summary judgment to the plaintiff, finding the guarantor's defences without merit.

A second mortgagee, named as a third party, also moved for summary judgment to dismiss claims that he was liable as a mortgagee in possession.

The court dismissed the second mortgagee's motion, finding that whether he had assumed control of the property was a genuine issue requiring a trial.

The applicant sought a review of a detention order following a bail hearing where he had been denied release on secondary grounds.

He faced numerous drug trafficking, weapons, and assault-related charges arising from a police investigation into alleged gang-related drug trafficking and a separate violent assault.

The applicant argued there had been a material change in circumstances due to the availability of an additional surety, increased financial pledges, and further evidence regarding a proposed surety’s supervision abilities.

The court held that these factors did not constitute a material change in circumstances capable of reopening the detention decision.

Even if they did, the court found continued detention remained justified due to the substantial likelihood the applicant would reoffend or interfere with the administration of justice.

The appellant mother appealed two orders of Crown wardship regarding her two children, who were apprehended at birth.

She argued that the child protection provisions of the Child and Family Services Act were unconstitutional, that the matters should be heard in criminal court, and that she was denied procedural fairness at trial.

The Divisional Court dismissed the appeals, finding that child protection falls under provincial jurisdiction, child protection hearings must be separate from criminal proceedings, and the trial judge made no procedural errors in managing the trial.

The court also confirmed that a finding of a child in need of protection is based on the risk of future harm, not past harm.

The appellants, including Ontario Power Generation Inc. (OPG) and two unions, appealed a decision of the Ontario Energy Board (OEB) that disallowed $145 million of OPG's forecast nuclear compensation costs for the 2011-2012 test period.

The appellants argued the OEB was required to presume the collective agreements were prudent when entered into and could not use hindsight to assess their reasonableness.

The Divisional Court dismissed the appeal, holding that the OEB was not restricted to a retrospective prudence review for forecast costs and was entitled to consider current market comparators to ensure rates were just and reasonable for consumers.

The court also found the OEB's reasons were adequate and its decision did not violate section 2(d) of the Charter.

The Crown appealed a Small Claims Court judgment ordering it to reimburse a former public servant for pool maintenance expenses incurred during a foreign posting in Dubai.

The Crown argued the Superior Court lacked jurisdiction under the Public Service Labour Relations Act, the claim was statute-barred, and the employee was bound by an Occupancy Agreement.

The Divisional Court dismissed the appeal, finding the Crown was estopped from relying on the statutory grievance ouster because it failed to provide the employee with the necessary grievance information.

The court also held the action was commenced within the limitation period and the Crown had implicitly accepted the employee's caveat regarding pool expenses.

On a status review application under the Child and Family Services Act, the child protection authority sought Crown wardship without access for three young children with significant behavioural and developmental needs.

The parents proposed that the children be returned to the father under a supervision order.

The court reviewed extensive evidence of long‑standing child protection involvement, unstable housing, chronic household disorder, parental conflict, substance use, and the parents’ inability to consistently meet the children’s complex needs despite significant community support.

While acknowledging the father’s commitment and efforts, the court concluded he lacked the capacity, resources, and organization required to safely parent the children long term.

The court determined that permanency through adoption best served the children’s interests and ordered Crown wardship without parental access.