Cory Wanless

The Court of Appeal for Ontario dismissed an appeal by the Attorney General of Canada from a certification order of a class action brought by immigration detainees.

Between May 2016 and July 2023, the Canada Border Services Agency placed approximately 8,360 immigration detainees in provincial and territorial prisons instead of Immigration Holding Centers.

The respondents challenged this practice as violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and as constituting negligence.

The motion judge certified the class action, finding that the Charter and negligence claims disclosed reasonable causes of action and that common issues existed.

The appellate court upheld the certification, finding no palpable and overriding errors in the motion judge's analysis.

The defendant, Barrick Gold Corporation, brought a motion to dismiss or permanently stay two companion actions, arguing that the Ontario Superior Court lacked jurisdiction or, alternatively, that Tanzania was the more appropriate forum under the doctrine of forum non conveniens.

The plaintiffs alleged injuries and deaths at a Tanzanian mining site, caused by the Tanzanian Police Force, for which they claimed Barrick was responsible due to negligent oversight.

The court found that Ontario lacked jurisdiction simpliciter, as the real and substantial connection to the litigation was in Tanzania, not Ontario, thereby rebutting the presumption of presence-based jurisdiction.

The court also determined that even if jurisdiction existed, Tanzania would be the clearly more appropriate forum due to the location of key witnesses and evidence, the inability to compel Tanzanian police witnesses in Ontario, and the adequacy of the Tanzanian common law legal system.

The actions were dismissed.

The plaintiff sought costs on a substantial indemnity basis or, alternatively, on a partial indemnity basis, following the dismissal of the defendant's motion for summary judgment.

The court declined substantial indemnity due to a lack of "reprehensible conduct" but awarded partial indemnity costs, finding the amount reasonable given the complexity and importance of the motion, proportionality, and access to justice.

The defendant moved for summary judgment to dismiss the plaintiff's action for false arrest, false imprisonment, and Charter breaches, arguing it was statute-barred under the Limitations Act, 2002.

The plaintiff was arrested by the CBSA in June 2013 and detained until October 2014, but only commenced the action in October 2016.

The court dismissed the motion, finding that the claim was not discoverable until June 2015, when the plaintiff received disclosure indicating the CBSA had relied on an interpreter for a key witness statement, casting doubt on the grounds for his detention.

The court also found genuine issues for trial regarding the merits of the claim.

The applicant sought a vesting order under section 100 of the Courts of Justice Act to extinguish his daughter's joint tenancy interest in a Toronto Islands property so he could add his current wife to the title.

He argued the daughter breached occupancy requirements under the Toronto Islands Residential Community Stewardship Act, 1993.

The court dismissed the application, finding it would not be just to grant a vesting order, as the applicant had gifted the interest to his daughter, was actively preventing her from occupying the property, and was attempting to force a sale she did not want.

The plaintiffs, indigenous Mayan Q'eqchi' from Guatemala, sued a Canadian mining company and its subsidiaries for human rights abuses allegedly committed by security personnel at a mining project in Guatemala.

The defendants brought motions to strike the claims for disclosing no reasonable cause of action, arguing that a parent company does not owe a duty of care for the actions of its foreign subsidiary.

The court dismissed the motions, finding that it was not plain and obvious that the negligence claims would fail, as the plaintiffs pleaded facts that could establish a novel duty of care.

The court also dismissed a motion to strike one of the actions as statute-barred, finding that the claim was based on sexual assault and fell within the exception in section 10 of the Limitations Act.