Douglas Alfred McPherson

The appellant, through her litigation guardian, appealed a Divisional Court decision that reversed a certification order for a proposed class action against the Government of Ontario.

The class action alleged negligence in the administration of services for adults with developmental disabilities and a breach of section 7 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that the Divisional Court erred in recharacterizing the negligence claim as impugning core policy decisions and in striking the section 7 Charter claim.

The Court held that the negligence claim concerned operational failures within existing resources, and the section 7 claim alleged psychological harm from the arbitrary administration of waitlists for approved services, which was not foreclosed by existing jurisprudence.

The appeal was allowed, restoring the motion judge's certification order.

The Ontario Court of Appeal remitted the issue of the Huron plaintiffs' Stage One trial costs to the Superior Court for reconsideration, questioning the substantial difference in hours claimed compared to the Superior plaintiffs.

The court found the Huron plaintiffs' costs to be fair and reasonable, noting the added complexity of representing 21 First Nations, the extensive evidence led on the Anishinaabe perspective, the incorporation of Anishinaabe Ceremony and protocol, and the necessary creation of the Robinson Huron Trust to manage the litigation.

The court concluded that the costs were proportionate and within the reasonable expectations of the parties given the historical significance and complexity of the treaty claims.

This is a costs endorsement following the dismissal of an appeal.

The Court of Appeal for Ontario awarded all-inclusive costs of $200,000 to the successful respondent, Ontario First Nations (2008) Limited Partnership, against the appellants, Ontario Lottery and Gaming Corporation and Her Majesty the Queen in right of Ontario.

The decision considered that this was the second level of appeal, the issues involved, and the respondent's success.

This is an appeal from a Superior Court decision upholding an arbitration award.

The arbitration panel found that Ontario and OLG breached a Gaming Revenue Sharing and Financial Agreement with the First Nations Partnership by unilaterally stopping payments of non-gaming revenue and complimentary services ("Comps") after outsourcing non-gaming amenities.

The Court of Appeal dismissed the appeals, affirming the lower court's decision that the Agreement was breached and the damages awarded were appropriate.

The court declined to rule on the standard of review for commercial arbitration decisions post-Vavilov, finding the outcome would be the same under either standard, and also declined to address the "honour of the Crown" doctrine as it was not determinative.

The plaintiff, acting as litigation guardian for his developmentally disabled daughter, brought a proposed class action against Ontario alleging negligence and section 7 Charter violations regarding the administration of waitlists for adult developmental services.

The motion judge certified the negligence and Charter claims.

Ontario appealed to the Divisional Court.

The Divisional Court unanimously allowed the appeal regarding the Charter claims, finding no positive obligation on the state to provide social assistance.

A majority of the court also allowed the appeal regarding the negligence claims, holding that the administration of the benefits program is a core policy decision protected by Crown immunity.

The appeal was allowed and the action dismissed.

A case management conference was held to set procedural directions for an upcoming virtual appeal hearing before the Divisional Court.

The court issued directions regarding the use of Zoom, attire, and the electronic filing of materials, including factums, compendiums, and authorities via a password-protected drop box.

The Superior Court of Justice, on remittal from the Divisional Court, reconsidered the certification of an operational negligence class action claim against the provincial government in light of the newly enacted Crown Liability and Proceedings Act (CLPA) and a constitutional challenge under s. 96 of the Constitution Act, 1867.

The court found it was not plain and obvious that the operational negligence claim was statute-barred by the CLPA, particularly due to the "decision" requirement in s. 11(4) of the CLPA and the plaintiff's pleadings.

Furthermore, the court determined that the s. 96 constitutional challenge to the CLPA was not plainly and obviously doomed to fail, emphasizing the importance of access to courts and the Supreme Court's caution against restoring complete governmental immunity by broadly defining "policy matters." The court concluded that the meaning and constitutionality of the CLPA should be decided on a complete record at trial or summary judgment, not on a pleadings motion.

The original certification of the operational negligence claim remained intact, and a new common issue regarding the CLPA's effect was added by consent.

Following the release of the court's endorsement in the appeals, counsel for the respondents wrote to the court concerning the disposition of the agreed upon costs.

The Court of Appeal issued an addendum awarding costs of $14,000 to the estate trustee and another $14,000 to the bank, inclusive of disbursements and taxes.

The respondents obtained summary judgment in the Louisiana Bankruptcy Court against the appellants on personal guarantees.

The respondents applied to enforce the judgments in Ontario.

The appellants argued the Louisiana Bankruptcy Court lacked subject matter jurisdiction.

The motion judge dismissed this argument, noting the appellants had raised the issue in Louisiana and failed to appeal the foreign court's ruling that it had jurisdiction.

The Court of Appeal dismissed the appeal, holding that it was not open to the appellants to re-litigate the issue of subject matter jurisdiction in Ontario after participating in the foreign proceedings and failing to appeal the jurisdictional ruling.