Ewa Krajewska

In an administrative law appeal concerning federal telecommunications regulation, the Court interpreted the term “transmission line” in ss. 43 and 44 of the Telecommunications Act and the scope of the CRTC’s access-regime jurisdiction over public property.

The majority held that “transmission line” refers to wireline infrastructure and does not include 5G small cell antennas, so the CRTC cannot adjudicate access disputes for antenna siting under that regime.

The Court emphasized text, context, legislative history, and statutory purpose, including Parliament’s allocation of antenna site-approval powers under the Radiocommunication Act.

A two-judge dissent would have interpreted the term to include 5G small cells based on ordinary meaning, statutory coherence, and technological neutrality.

The appeal was dismissed with costs to specified respondents.

The Canadian Civil Liberties Association brought an application for judicial review challenging the federal government's invocation of the Emergencies Act and the associated regulations and order.

The Federal Court declared that the decision to issue the Proclamation and the associated regulations and order was unreasonable and ultra vires the Emergencies Act.

The Court also found that the regulations infringed section 2(b) of the Charter and the order infringed section 8 of the Charter, and that neither infringement was justified under section 1.

This decision addresses a motion for leave to intervene in an appeal concerning a s. 15 Charter challenge to COVID-19 benefit programs.

The Canadian Civil Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC) sought leave to intervene as friends of the court.

The appellant consented to both interventions, while the respondent opposed ISAC's motion.

The court granted both motions, finding that both interveners would provide unique and useful contributions, particularly on issues of remedy, retroactive application of invalidity declarations, and the application of substantive equality analysis in the context of disability and income security programs.

The applicant, a registered clinical psychologist, sought judicial review of a decision by the College of Psychologists of Ontario's Inquiries, Complaints and Reports Committee (ICRC) ordering him to complete a specified continuing education or remedial program (SCERP) regarding professionalism in public statements.

The ICRC's order followed an investigation into the applicant's social media posts and public statements, which the committee found posed moderate risks of harm to the public and the profession.

The Divisional Court dismissed the application, finding that the ICRC reasonably balanced the applicant's Charter right to freedom of expression with the College's statutory mandate to regulate the profession in the public interest, in accordance with the Doré framework.

The Court also held that the ICRC's decision met the Vavilov standard of justification, transparency, and intelligibility.

The Mizrahi Defendants sought to stay or dismiss the action brought by 2694128 Ontario Inc. under Rules 21.01(3)(d) or 25.11 of the Rules of Civil Procedure or s. 106 of the Courts of Justice Act, arguing that contractual preconditions for the action had not been met.

Specifically, they contended that 2694128 Ontario Inc. could only demand repayment if CERIECO had made a demand under a separate Supplier Credit Agreement (SCA), and that CERIECO was precluded from doing so by a Standstill Provision in a Subordination Agreement.

The court found that while 2694128 Ontario Inc. had made a demand for repayment, it was not plain and obvious that CERIECO's prior demands for repayment under the SCA were invalid or prohibited by the Standstill Provision.

The court determined that the interpretation of the interrelated agreements required a deeper analysis of the factual matrix, which is not suitable for a preliminary motion.

Consequently, the motion to stay or dismiss the action was dismissed.

This endorsement addresses a plaintiff's motion for leave to amend its statement of claim and the costs of both this motion and an earlier motion to dismiss/stay.

The court had previously stayed claims related to the recovery of subordinated indebtedness due to a standstill provision but allowed other claims, such as those for fraud and conspiracy related to unauthorized agreements, to proceed with leave.

The plaintiff sought to include claims for damages from unauthorized loan transactions, knowing assistance, breach of fiduciary duty, fraud, conspiracy, punitive damages, and oppression remedy.

The court permitted claims for damages from unauthorized transactions, knowing assistance, breach of fiduciary duty, fraud, and conspiracy, finding they fell outside the standstill provision.

However, claims for punitive damages equal to the subordinated indebtedness were disallowed as a disguised attempt to recover prohibited amounts.

The oppression remedy claim was also denied, as the plaintiff failed to establish a proper complainant status independent of its prohibited creditor capacity.

The Mizrahi Defendants, as the overall successful parties on the stay motion and more successful on the leave to amend motion, were awarded partial indemnity costs for both motions.

The Applicants brought a motion under Rule 312 to file an additional affidavit introducing evidence from the Public Order Emergency Commission (POEC) into their applications for judicial review of the invocation of the Emergencies Act.

The Respondent opposed, arguing the evidence was not before the decision-maker and admitting it would conflict with the POEC's process.

The Court granted the motion, finding the selected evidence regarding the Invocation Memorandum, policing plans, and threat assessments was admissible under exceptions to the general rule on judicial review records, as it provided necessary background and highlighted an absence of evidence before Cabinet.

The Court concluded the evidence was relevant and its admission served the interests of justice.

This endorsement addresses a motion brought by a non-party, Khashayar Khavari, seeking leave to intervene as an added party in a receivership application.

The applicant, PricewaterhouseCoopers Inc. (as court-appointed receiver of Bridging Finance Inc.), sought to appoint a receiver over the respondents, Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. Khashayar Khavari claimed an equity interest in the respondent companies, which was subject to ongoing litigation, and argued he had an interest in the subject matter or could be adversely affected by the receivership order.

The motion was opposed by both the Bridging Receiver and the Respondents.

The court dismissed the motion, finding that Khashayar Khavari was a stranger to the debtor-creditor relationship, had no direct economic interest in the receivership application, and would not be unduly prejudiced as he could participate as an interested person on the service list.

The applicant, PricewaterhouseCoopers Inc. (Bridging Receiver), sought an order to appoint Richter Inc. as receiver and manager over Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. due to an outstanding and defaulted loan.

Northern Citadel and One8One did not oppose the appointment but challenged its scope. 181 Retail opposed the appointment entirely, arguing its obligations were limited to a repaid loan and its security should have been discharged.

The court found the loan was in default and the contractual documents clearly established 181 Retail's liability as a guarantor for the full loan amount, rejecting arguments based on subjective intent or unfulfilled discharge instructions.

The court granted the appointment of Richter as receiver over all respondents but denied the Bridging Receiver's requests for sweeping investigative powers and immediate authorization to assign respondents into bankruptcy, deeming them unnecessary at that stage.

The plaintiffs brought a motion for a Mareva injunction and a Norwich Order against the defendants, alleging they were defrauded of $775,000 through a fake cannabis business investment scheme.

The court found a strong prima facie case of fraud and a serious risk of asset dissipation, granting the Mareva injunction to freeze the defendants' assets.

The court also granted a Norwich Order compelling third-party financial institutions to produce banking records to trace the misappropriated funds.

The Mizrahi Defendants brought a motion to dismiss or stay the plaintiff's action based on a standstill provision in a Priority, Subordination and Standstill Agreement.

The plaintiff, a subordinated lender for a construction project, sued for $200 million in damages and other relief.

The court found that the plaintiff's claims fell squarely within the standstill provision, which prohibited enforcement actions until senior lenders were repaid.

The court rejected the plaintiff's argument that the enforceability of the agreement was in play, as it was not pleaded.

The action was stayed for 30 days to allow the plaintiff to draft a new statement of claim for claims not covered by the standstill provision, after which the action would be dismissed.

The Attorney General of Ontario brought a motion to seal the entire court file in a civil action for wrongful arrest, arguing it was necessary to protect the integrity of an ongoing criminal proceeding.

The plaintiffs consented to sealing but sought additional terms, while the Toronto Star opposed the broad sealing order.

The court found that sealing the entire file was overly broad and violated the open court principle, ordering instead that only the unredacted amended statement of claim containing Stinchcombe disclosure be sealed.

The applicant sought specific performance of an Agreement of Purchase and Sale for a residential property.

The respondent vendor refused to close the transaction after realizing that the contract stipulated HST was 'included in' the purchase price, meaning she would net less than anticipated.

The respondent argued there was a lack of consensus ad idem and unilateral mistake.

The court rejected these arguments, finding the contract language unambiguous and the mistake to be the respondent's own error in judgment.

The court granted specific performance, holding that the property was unique in the context of a hot real estate market and damages would be inadequate.

The appellant, acting in person and representing her deceased husband's estate, appealed a decision finding that the former six-month sobriety requirement for liver transplants was moot and that the current eligibility criteria for alcohol-associated liver disease patients do not infringe sections 7, 12, and 15 of the Charter.

The Court of Appeal dismissed the appeal regarding the mootness of the former regime and the constitutionality of the current criteria, finding the criteria were based on medical evidence rather than stereotyping.

The court allowed the appeal relating to the Living Donor Criteria, holding that its constitutionality should only be decided in a live dispute.

A dissenting judge would have dismissed the application entirely on the basis that the self-represented appellant lacked the capacity to bring forward a complex constitutional claim under the public interest standing test.

The applicant sought a mandatory interlocutory injunction to compel the Leaders' Debates Commission to grant media accreditation to its journalists for the upcoming federal election debates.

The Commission had denied accreditation, relying on guidelines addressing conflict of interest, and the applicant alleged the decision was arbitrary and unfair.

The Court found a strong prima facie case of arbitrary differential treatment in the accreditation process, irreparable harm from being prevented from participating in the political process, and a balance of convenience favouring the applicant.

The injunction was granted.

The applicant developers sought judicial review of two letters from the Ontario Energy Board (OEB) regarding a dispute with an electricity distributor over whether a new substation was an 'expansion' or an 'enhancement'.

The OEB had provided an opinion that the project was an expansion, meaning the developers were responsible for the costs, and declined to refer the matter for a formal hearing.

The Divisional Court dismissed the application, finding that the OEB's opinion was not the exercise of a statutory power of decision and therefore not subject to judicial review.

Furthermore, the court held that the applicant had no statutory standing to compel the OEB to hold a hearing.

The applicant hotel sought a declaration from the Superior Court of Justice that it was eligible for electricity rebates under the Ontario Rebate for Electricity Consumers Act 2016 and the Ontario Fair Hydro Plan Act.

The respondent local electricity distribution company brought a motion to stay the proceedings, arguing the matter fell within the exclusive jurisdiction of the Ontario Energy Board.

The court granted the motion and stayed the application, finding that the substance of the dispute involved enforceable provisions under the Ontario Energy Board Act, granting the Board exclusive jurisdiction.

The applicant widow brought a constitutional challenge against the eligibility criteria for liver transplants, arguing that the requirement for patients with alcohol-related liver disease to demonstrate abstinence or undergo rigorous multidisciplinary screening discriminated against them on the basis of their alcohol use disorder.

The court found that while the estate had standing to bring the claim, the challenge to the historical six-month sobriety rule was moot.

On the merits of the current criteria, the court held there was no violation of sections 15(1), 7, or 12 of the Charter, as the criteria were based on the best available medical evidence to allocate scarce organs to those most likely to have successful outcomes.

The court also found that the living donor program criteria were clinical policies not subject to Charter scrutiny.

The Bank of Nova Scotia Trust Company, as Estate Trustee, sought the court's advice and directions regarding the Will of Elizabeth Charles, specifically concerning her son Robert Charles's option to purchase the deceased's property using his residual inheritance and his obligation to pay occupation rent.

The court ruled that Robert could not use his undetermined residual share to purchase the property, as the Will required a cash purchase and his share was subject to outstanding passing of accounts and hotchpot accounting.

The court also ordered Robert to pay occupation rent from May 1, 2021, finding no juristic reason for his continued rent-free occupancy after the purchase option expired.

The applicant, acting as substitute decision-maker for his incapable elderly father, brought an application for judicial review challenging a hospital's COVID-19 visitor restriction policy and a related memorandum from the Chief Medical Officer of Health.

The applicant argued the restrictions violated his father's rights under sections 7, 12, and 15 of the Charter by preventing in-person visits.

The Divisional Court dismissed the application, finding that neither the hospital's policy nor the CMOH memorandum were subject to judicial review as they did not involve the exercise of a statutory power of decision with a sufficient public character.

Furthermore, the court held that even if reviewable, the policies did not infringe the Charter, as they were based on sound medical and epidemiological evidence rather than discriminatory presumptions, were not arbitrary or overbroad, and did not constitute state-imposed punishment or treatment.