Emily Alexandra Graham

The appellant, OHIP, appealed a decision of the Health Services Appeal and Review Board which granted the respondent funding for a vaginoplasty without penectomy in Texas.

OHIP argued the procedure was not a specifically listed insured service and was experimental.

The Divisional Court upheld the Board's decision, finding that the plain reading of the Schedule of Benefits lists vaginoplasty and penectomy as separate procedures, and that interpreting the schedule to require a penectomy would be inconsistent with the WPATH Standards of Care and Charter values.

The court also declined to allow OHIP to raise a new argument on appeal regarding out-of-country funding criteria.

Egale Canada brought an unopposed motion for leave to intervene as a friend of the court in an appeal concerning whether vaginoplasty without penectomy is an insured service under the Ontario Health Insurance Plan.

The court granted the motion, finding that Egale has relevant expertise regarding the systemic disadvantages faced by trans and nonbinary individuals in accessing gender-affirming care and would make a useful contribution to the resolution of the appeal without causing injustice or undue delay.

The applicant sought judicial review of two decisions by the Health Professions Appeal and Review Board (HPARB) confirming the College of Physicians and Surgeons of Ontario's decision to take no further action regarding his complaints against two physicians.

The complaints arose after the physicians reported the applicant to the Ministry of Transportation for a potential visual impairment, resulting in a temporary suspension of his driver's licence.

The Divisional Court dismissed the applications, finding that the HPARB's decisions were reasonable and that the physicians had complied with their mandatory reporting obligations under the Highway Traffic Act.

The applicant physician sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Physicians and Surgeons of Ontario, which ordered him to be cautioned regarding informed consent for cataract surgery.

The applicant argued he was denied procedural fairness because he was not provided with the clinical findings of another physician obtained during the investigation, and that the ICRC's decision was unreasonable.

The Divisional Court dismissed the application, finding that the duty of fairness at the investigative stage is limited and the applicant had sufficient notice of the complaint to respond.

The court also held that the ICRC's decision to issue a remedial caution was reasonable and within its statutory screening function.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board, which confirmed a decision of the Inquiries, Complaints, and Reports Committee (ICRC) of the College of Physicians and Surgeons of Ontario.

The ICRC had required the applicant to appear for a caution and submit a reflective essay following a complaint from a female patient regarding an inappropriate comment made during a pelvic examination.

The Divisional Court dismissed the application, finding that the Board's conclusions regarding the adequacy of the ICRC's investigation and the reasonableness of its remedial disposition were transparent, intelligible, and justified.

The appellant physician appealed a two-month suspension imposed by the Discipline Committee of the College of Physicians and Surgeons.

The appellant argued the penalty was outside the range of comparable cases and that the Committee failed to conduct a proper parity analysis.

The Divisional Court dismissed the appeal, finding the penalty was reasonable, within the range of prior decisions, and justified by the pervasive and systemic nature of the misconduct which exposed patients to a risk of serious harm.

The appellant physician, found guilty of professional misconduct for inadequate record keeping and sterile technique, brought a motion to extend the time to perfect his appeal until the Court of Appeal released its decision in a separate case involving sexual abuse penalties.

The court dismissed the motion, finding that the pending decision would not affect the appellant's case, as his misconduct did not involve sexual abuse, and the disciplinary committee's reference to the other case was not central to its penalty decision.

The appellant was ordered to perfect his appeal within 30 days.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a written caution issued by the College of Physicians and Surgeons of Ontario.

The caution was issued because the applicant's clinic used patient and staff testimonials in its advertising, contrary to the regulations under the Medicine Act.

The Divisional Court dismissed the application, finding that the investigation was adequate and the interpretation of the regulation prohibiting testimonials was reasonable.

The court issued supplementary reasons to clarify when the two-year limitation period begins to run for claims arising from unpaid Highway 407 toll invoices.

The dispute concerned whether the limitation period commenced when the debtor’s vehicle permit expired during licence plate denial or when the debtor was first placed into licence plate denial under the Highway 407 Act.

The court held that the limitation period begins when the Registrar places the debtor’s licence plate into licence plate denial.

This interpretation avoids allowing the toll operator to control when the limitation period begins and is consistent with the statutory collection scheme and the principles underlying limitation periods.

The court therefore confirmed that the limitation period in the case began on the date the licence plate was placed into denial.

The tenants under two long-term ground leases appealed a majority arbitration award determining the fair market value of the lands for rent re-set purposes.

The court upheld the arbitrators' finding that the freehold interest, not the leasehold interest, was to be valued.

However, the court found the arbitrators erred in law by including the potential value of a freehold residential condominium project in the valuation, as a prior Divisional Court decision between the parties established that development potential unavailable to the tenants due to legal restrictions must be excluded.

Finding that issue estoppel applied to this prior determination, the court set aside the arbitration award and ordered a new hearing.

The defendant brought a motion seeking production of invoices issued by the plaintiff to a third party for consulting services during a period when the plaintiff was also billing the defendant.

The plaintiff resisted production on the basis that the documents were irrelevant and not within his possession or control.

The court held that the requested invoices had potential relevance to the interpretation of the parties’ contractual billing arrangement and could inform whether the plaintiff customarily billed on a fixed-fee basis.

The court concluded that, had the documents remained in the plaintiff’s possession, they would have been producible and directed that the plaintiff not object to the third party producing the documents.

Costs were reserved to the trial judge but fixed at $3,000.

The defendants brought a motion to compel answers to undertakings and refusals arising from the plaintiff’s examination for discovery in a commercial dispute alleging breach of contract, breach of fiduciary duty, and misuse of proprietary information following the departure of key employees to a competitor.

The court applied the relevance principles under Rules 31.06 and 30.02 of the Rules of Civil Procedure and the governing jurisprudence on discovery scope.

Some questions and undertakings were ordered answered where they were relevant to damages, business dealings, or the alleged misuse of confidential materials, while others were refused as speculative or unrelated to the pleaded issues.

The court also addressed requests for commercially sensitive documents, ordering production of certain manuals and a DVD containing returned documents subject to a confidentiality agreement but rejecting a “counsel eyes only” restriction.

The plaintiff was ordered to provide outstanding undertakings and answers within 45 days and to attend for a further seven hours of discovery.

The appellant appealed a decision dismissing his application for a declaration that three retention bonuses totaling $475,000 constituted 'pensionable earnings' under the Healthcare of Ontario Pension Plan.

The Court of Appeal upheld the motion judge's finding that the bonuses were not a 'regular' part of the appellant's remuneration, as they were payable over three years only and did not continue during automatic renewal terms.

The Court also upheld the motion judge's discretionary refusal to award the appellant costs out of the pension plan, as the litigation was not brought for the benefit of all beneficiaries.

The appeal was dismissed with costs awarded to the respondents.

Following dismissal of an application seeking a declaration that retention bonuses constituted pensionable earnings under a pension plan, the court determined the issue of costs.

The unsuccessful applicant sought to have his costs paid from the pension trust fund.

Applying the pension trust approach discussed in appellate authorities, the court held that costs may be payable from a pension fund where proceedings ensure proper administration of the trust or benefit all beneficiaries.

Because the claim sought increased benefits for the applicant alone and was adverse to other beneficiaries, costs could not be ordered from the trust fund.

Despite the applicant’s loss, the court exercised discretion to order no costs given the ambiguity of the plan terms, the novelty of the issue, and the applicant’s good faith.

The applicant sought a declaration that retention bonuses payable under an amended employment agreement constituted pensionable earnings under a multi-employer pension plan for purposes of calculating pension benefits.

The court considered the plan definition of “pensionable earnings,” which included wages, salary, and other amounts forming a regular and integral part of a member’s remuneration.

The applicant argued the bonuses were regular compensation tied to continued employment, while the plan administrator argued they were ad hoc payments replacing a severance-trigger provision.

The court held that although the payments occurred on fixed dates, they were not a regular and integral component of remuneration within the meaning of the plan.

The application was dismissed and the bonuses were found not to be pensionable earnings.

The plaintiffs, former federal public servants, sued the Attorney General of Canada (AGC) for negligent misrepresentation after resigning to join a private company, Loba, and transferring their pensions to the Loba Plan, which was later revoked by the CRA.

The trial judge found the AGC liable for failing to disclose known risks about the Loba Plan and apportioned liability 80% to the AGC and 20% to the Loba Parties (third parties).

The AGC appealed.

The Court of Appeal upheld the findings of duty of care, misrepresentation, and causation against the AGC.

However, the Court allowed the appeal in part regarding apportionment, finding the trial judge erred in her fiduciary analysis of the Loba Parties.

The Court adjusted the apportionment of liability to 60% for the AGC and 40% for the Loba Parties.

A separate appeal by one plaintiff regarding the calculation of his damages was dismissed.

The applicant sought costs on a substantial indemnity basis following a partially successful application for judicial review regarding the municipal reimbursement of legal expenses for city councillors.

The Divisional Court awarded the applicant partial indemnity costs of $15,000 payable by the city, noting the lack of complexity and partial success.

The court declined to award costs against the individual councillors, and ordered the applicant to pay $5,000 in costs to one councillor who successfully opposed the relief sought against him personally.

The applicant, a Toronto city councillor, brought an application for judicial review to quash municipal by-laws authorizing the reimbursement of legal expenses for three other councillors.

The expenses related to compliance audits of election campaign finances and defamation actions.

The Divisional Court held that the by-law reimbursing expenses for the compliance audits was ultra vires, as the expenses were not incurred in the councillors' capacity as members of council.

However, the court upheld the by-law reimbursing expenses for a defamation action brought by a sitting councillor, finding it was reasonably connected to her duties.

The application was granted in part.