Hartley Morris Schwartz

This endorsement addresses motions by the Tamil Rights Group (TRG) and the Tamil Coalition (National Council of Canadian Tamils, Canadian Tamil Academy, Canadian Tamil Youth Alliance) to intervene as parties or friends of the court in two joined applications.

The original applicants are challenging the constitutionality of the Tamil Genocide Education Week Act, alleging it is ultra vires and violates Charter rights.

The court granted intervener status as parties to TRG and the Tamil Coalition, finding their contributions useful for a balanced factual record, particularly given the applicants' factual assertions about the Act's basis.

The court imposed specific limitations on the interveners' participation to avoid undue delay or prejudice.

The defendants brought a motion to transfer a class action regarding alleged systemic abuse at a psychiatric facility from Toronto to Barrie.

The court applied a holistic approach to the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

While Barrie had proximity to the facility and witnesses, the Regional Senior Justice noted that due to courtroom availability and backlog, a trial in Barrie might ultimately be moved elsewhere in the Central East Region.

The court concluded that Toronto's judicial resources and specialized class action judges would better ensure a just and expeditious determination.

The motion to transfer was dismissed.

The Court of Appeal for Ontario partially allowed an appeal by the family of a deceased First Nations child, Brody Meekis, who died of strep throat following an allegedly flawed coronial investigation.

The family's civil claim, which included allegations of misfeasance in public office, negligent supervision, and Charter s. 15 discrimination, had been entirely struck by the motion judge.

The Court of Appeal reinstated the misfeasance in public office and Charter claims, finding that the motion judge erred in concluding they had no reasonable prospect of success.

The court clarified that discriminatory conduct, even within discretionary powers, can constitute unlawful action for misfeasance, and that adverse impact discrimination under s. 15 of the Charter can arise from the application of seemingly neutral laws that disproportionately disadvantage protected groups.

The claim for negligent supervision remained struck.

Following a successful application for judicial review where the impugned regulation was declared ultra vires but Charter claims were dismissed, the applicants sought costs of $153,499.07 on a partial indemnity basis.

The respondents argued for no costs or a maximum of $35,000.

The Divisional Court found the applicants' requested costs excessive given it was a one-day hearing and a large portion related to unsuccessful Charter claims.

The court fixed costs at $50,000 all inclusive.

The applicants sought judicial review of an Ontario regulation that discontinued the reimbursement of out-of-country medical expenses under the provincial health insurance plan.

The Divisional Court found that the regulation clearly violated the portability criterion of the Canada Health Act, which would disqualify Ontario from receiving a full federal cash contribution.

Because the Health Insurance Act explicitly prohibits the Lieutenant Governor in Council from making regulations that would cause such disqualification, the impugned regulation was declared ultra vires.

The applicants' Charter challenges under sections 7 and 15 were dismissed.

A case management endorsement setting out the schedule and procedural directions for an upcoming judicial review application to be heard by video conference.

The court provided instructions on the use of a drop box for document filing, formatting requirements for electronic materials, and the timeline for submissions.

The applicants sought to schedule an expedited application for judicial review of an emergency order made under the Emergency Management and Civil Protection Act during the COVID-19 pandemic.

The order permitted specified persons to obtain personal health information about the COVID status of individuals.

The court declined to set an expedited schedule because the applicants had not yet served their expert evidence, there was no direct evidence of urgency, and the order was set to expire shortly.

A regular hearing date was set, with further case conferences scheduled to address potential mootness or timetabling.

The applicant, a monocular bus driver, challenged the constitutionality of the vision standards in s. 18(3) of the Drivers' Licences Regulations under s. 15 of the Charter.

The regulations imposed a blanket prohibition on monocular individuals holding a Class C commercial driver's licence.

The court found that the regulations substantively discriminated against the applicant based on her physical disability by perpetuating the stereotype that all monocular drivers are unsafe, without allowing for individual assessment.

The court further held that the infringement was not minimally impairing and therefore not justified under s. 1 of the Charter.

The court declared the regulations unconstitutional but suspended the declaration for 12 months to allow the government to amend the legislation, denying the applicant's request for an immediate individual exemption.

The appellants appealed a Superior Court decision finding that frequent lockdowns at Maplehurst Correctional Complex violated the Charter rights of two remanded inmates under section 12 (cruel and unusual treatment).

The Court of Appeal allowed the appeal, finding that the application judge had significantly overstated the frequency, duration, and impact of lockdowns affecting the respondents.

The court concluded that while lockdowns occurred more frequently than ideal, they did not rise to the level of cruel and unusual treatment.

The court also found procedural unfairness in the award of damages without notice to the parties and rejected alternative arguments based on sections 7 and 10(c) of the Charter.

The appellant appealed a Consent and Capacity Board decision confirming her involuntary psychiatric admission.

She sought a declaration that a forced injection of anti-psychotic medication violated her Charter rights and requested rescission of her detention certificate as a remedy.

The central issue was whether the Board has jurisdiction to grant remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms.

The Court of Appeal held that the Board does not have s. 24(1) Charter jurisdiction, despite having authority to decide questions of law.

The court found that the legislature clearly intended to exclude Charter remedies from the Board's jurisdiction based on the removal of s. 52(1) jurisdiction, strict statutory timelines, limited remedial powers, composition of the Board, and the availability of Superior Court appeals.

The Crown brought a motion to dismiss the applicant's proceedings, which were commenced by a Notice of Constitutional Question, arguing they were premature and brought in the wrong court.

The applicant sought various remedies including Charter damages, exclusion of evidence, and judicial review of a Licence Appeal Tribunal decision.

The court agreed with the Crown, finding the application premature as the Licence Appeal Tribunal had jurisdiction to hear the Charter issues and the applicant had not exhausted administrative remedies.

The application was dismissed without prejudice, advising the applicant to complete the tribunal process and then, if necessary, pursue remedies before the Divisional Court.

The applicant, Liliana Di Cienzo, challenged the constitutionality of a provincial regulation under rule 14.05 of the Rules of Civil Procedure, arguing it violated her Charter rights.

The respondent, Attorney General of Ontario, moved to transfer the application to the Divisional Court, asserting that constitutional challenges to regulations fall under judicial review and the Divisional Court's exclusive jurisdiction.

The Superior Court dismissed the motion, holding that it has jurisdiction to hear rule 14.05 applications for declarations challenging the constitutional validity of subordinate legislation, particularly when the challenge is not to the statutory power to make the regulation (ultra vires) but to the regulation itself for Charter non-compliance.

The court emphasized the procedural advantages of the Superior Court for such applications, including the ability to direct a trial of an issue if facts are disputed.

A case conference was held in an action brought by a self-represented plaintiff alleging Charter breaches due to frequent lockdowns at the Toronto South Detention Centre.

The court approved the parties' agreed discovery plan, scheduled a further case conference to discuss next steps, and issued general case management directions, including that no motions may be brought without leave.

The applicant, incarcerated and self-represented, brought a summary application seeking constitutional declarations and $2 million in damages against the Crown, alleging violations related to frequent lockdowns, inadequate medical and legal assistance, and denial of religious freedoms at Toronto South Detention Centre.

The Crown moved to convert the application to an action, arguing that the complexity, anticipated credibility issues, and volume of evidence necessitated a full trial process with documentary and oral discoveries.

The court granted the Crown's motion, converting the application to an action, finding that a structured action process would be fairer, more affordable, and ultimately more efficient given the substantial damages claimed and the applicant's detailed rebuttal to the Crown's anticipated evidence.

The Ministry of Community Safety and Correctional Services and Toronto South Detention Centre were removed as respondents.

The applicant brought a production request seeking data on the number of catheterizations performed by CCAC-funded nurses in Ontario.

The respondent argued the data was unavailable.

The Tribunal denied the request, finding that the sheer number of catheterizations performed by nurses was not arguably relevant to whether the applicant required a nurse for his catheterizations, and that there was insufficient evidence that the requested data existed.

The applicants initiated a constitutional challenge to sections of the Children’s Law Reform Act and Vital Statistics Act concerning parental recognition for LGBTQ parents.

The respondent failed to file an Answer within the 30-day period and subsequently brought motions for an open-ended extension and directions.

The applicants brought a cross-motion.

The court dismissed all motions but, recognizing the complexity and importance of the constitutional issues, granted the respondent an extension to file an Answer and set a timetable for the litigation.

The respondent was sanctioned with $2,000 in costs for its unreasonable procedural conduct in delaying the filing of its motion for extension.

The applicant filed a Request for an Order During Proceedings to exclude the respondent's expert medical report, arguing its admission would be an abuse of process due to delay and re-litigation.

The respondent filed a cross-request for an order requiring the parties' medical experts to meet with a facilitator to produce a joint report (a 'hot tub').

The Tribunal dismissed the applicant's request, finding no delay, no prior legal determination of the applicant's medical needs, and that the expert evidence was relevant to the discrimination claim.

The Tribunal also dismissed the respondent's request, concluding that a facilitated meeting would be an inefficient use of resources given the fundamental disagreement between the experts.

The applicant filed two Requests for Orders During Proceedings (RFOP) seeking the production of documents and an order precluding the respondent from asserting an undue hardship defence or presenting evidence on alternative programs.

The Tribunal ordered the respondent to provide particulars on its defences and the comparative costs of home care versus institutionalization.

However, the Tribunal declined to order the production of 2015 Cabinet documents, finding them not arguably relevant at this stage, and refused to restrict the respondent's defences, noting that the summary hearing process cannot be used to strike a response.

The applicant, a man with a severe intellectual disability, filed a human rights application alleging that the regulatory cap on nursing services discriminated against him by denying funding for a medically necessary fifth daily catheterization.

After the application was filed, the regulation was amended to increase the cap, meeting the applicant's current needs.

The respondent requested that the application be dismissed for mootness.

The Tribunal denied the request, finding that a live controversy remained regarding the period the applicant was subject to the old cap and any potential remedies.

However, the Tribunal held that the applicant lacked standing to challenge the amended regulation, as he was no longer adversely affected by it and could not bring a public interest application on behalf of others.

The Tribunal also declined to dismiss the application summarily on the basis that damages might not be available, finding such a determination premature.

The media applicants brought an application for a declaration that the police practice of impersonating journalists for criminal investigation and surveillance of public protests violates s. 2(b) of the Charter.

The court found no evidence that plainclothes officers engaging in surveillance held themselves out as journalists.

The court held that the evidentiary record did not support a finding that the practice of plainclothes surveillance in the presence of media had a chilling effect on news gathering.

The application was dismissed.