Hera Evans

A reference to the Court of Appeal for Ontario concerning whether legal online gaming and sports betting would remain lawful under the Criminal Code if users were permitted to participate in games and betting involving individuals outside of Canada.

The majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.) answered affirmatively, finding that section 207(1)(a) of the Criminal Code permits Ontario to conduct and manage a lottery scheme with international pooled liquidity, provided Ontario continues to conduct and manage the Ontario-based aspects of the scheme in accordance with provincial law.

The majority rejected the application of the real and substantial connection test and distinguished the Earth Future decisions.

Van Rensburg J.A. dissented, arguing that the Proposed Model would contravene the Criminal Code because it would require Ontario to conduct and manage aspects of the lottery scheme outside Ontario's territorial boundaries, contrary to the plain meaning of "in that province" in section 207(1)(a).

The plaintiffs sought certification of a class action on behalf of Indigenous children living off-reserve who have been through Ontario's child welfare system, along with their caregiving parents and grandparents, and Indigenous children who have experienced gaps and delays in accessing essential services such as education and health services.

The court dismissed the certification motion, finding that the claim lacked a viable cause of action, failed to establish an identifiable class, lacked common issues, and was not a preferable procedure for resolution.

The court held that the claim impugned broad government policies and funding decisions rather than specific wrongful acts, raising justiciability concerns.

The court also found that the representative plaintiffs could not succeed as they were attempting a collateral attack on valid court orders.

The Court of Appeal for Ontario considered whether the Rebuilding Ontario Place Act, 2023 (ROPA) violates section 96 of the Constitution Act, 1867, and whether a public trust doctrine exists in Canadian law.

The appellant, Ontario Place Protectors, challenged the constitutionality of ROPA, arguing it insulated state action from judicial scrutiny and breached public trust.

The Court found the application judge erred in denying public interest standing but held that ROPA does not contravene section 96, as it preserves judicial review and does not usurp the core jurisdiction of the superior courts.

The Court also found no basis for a public trust doctrine in Canadian law.

The appeal was dismissed.

The applicant challenged provisions of the Rebuilding Ontario Place Act, 2023 (ROPA), arguing that s. 17(2) violated s. 96 of the Constitution Act, 1867 by impermissibly removing superior court jurisdiction and access to remedies, and that other sections (ss. 9, 10, 11, 17(2)) breached public trust.

The court dismissed the application, finding that ROPA did not preclude judicial review and that the specific immunity granted was within legislative authority and did not "maim" the superior courts' core jurisdiction.

The court also rejected the public trust doctrine as a basis for striking down legislation or for a declaration without practical utility, and found the applicant lacked sufficient evidence for public interest standing.

The Court of Appeal for Ontario heard motions for leave to adduce evidence and for a confidentiality order in the context of a reference regarding the legality of an online provincial lottery scheme permitting international play.

The court granted leave to the Attorney General of British Columbia and the Canadian Lottery Coalition Members to file their proposed evidence, finding it potentially helpful for the reference panel.

The court dismissed the Canadian Gaming Association's motion for a confidentiality order, ruling that alleged reputational harm was a private interest insufficient to override court openness, especially as the information was largely public.

The Mohawk Council of Kahnawà:ke sought a declaration that Ontario's iGaming scheme, enabled by specific provincial legislative provisions, was inoperative.

The Council argued that these provisions impermissibly allowed private operators to "conduct and manage" lottery schemes, which, under the Criminal Code, is reserved for provincial governments, thus violating the division of powers and triggering the doctrine of paramountcy.

The respondents, iGaming Ontario and the Attorney General of Ontario, challenged the Council's standing and argued that Ontario, through iGO, properly conducts and manages the scheme.

The court granted the Council public interest standing but ultimately dismissed the application, finding that Ontario, through iGO, maintains sufficient control to be considered the "operating mind" of the iGaming scheme, thereby complying with the Criminal Code and avoiding paramountcy.

The respondent, representing a class of seriously mentally ill inmates and inmates held in prolonged administrative segregation, brought a class action against Ontario for Charter breaches and systemic negligence.

The motion judge granted summary judgment, finding that Ontario's use of administrative segregation violated sections 7 and 12 of the Charter, and awarded $30 million in aggregate Charter damages.

Ontario appealed, arguing that the Charter breaches were not established for all seriously mentally ill inmates, that Charter damages were inappropriate due to good governance concerns, and that the negligence claim was barred by statute.

The Court of Appeal dismissed the appeal, upholding the findings that administrative segregation of seriously mentally ill inmates constitutes cruel and unusual treatment, that Ontario's clear disregard for inmates' rights justified Charter damages, and that the operational implementation of segregation policies grounded a valid systemic negligence claim.

The representative plaintiff brought a class action on behalf of inmates in Ontario correctional institutions who were placed in administrative segregation.

The plaintiff alleged that Ontario's use of administrative segregation constituted systemic negligence and violated sections 7 and 12 of the Charter.

On a motion for summary judgment, the court found that administrative segregation as practiced in Ontario was equivalent to solitary confinement and caused severe psychological harm, particularly to inmates with serious mental illness.

The court held that Ontario breached the inmates' Charter rights and was liable for systemic negligence at the operational level.

The court awarded $30 million in aggregate damages for compensation, vindication, and deterrence.

Hydro One appealed an application judge's decision declining to grant a general declaration that the Ontario Provincial Police must produce accident reports containing driver and owner information to parties who suffer property loss in motor vehicle accidents.

Hydro One argued that while section 200(1) of the Highway Traffic Act requires drivers to provide such information on request, this provision is unavailable when only property loss occurs and no representative is present at the scene.

The Court of Appeal quashed the appeal, finding that although it may have had jurisdiction, it was not appropriate to take jurisdiction due to the absence of an active lis, lack of necessary factual record, and absence of interested parties including the Privacy Commissioner and Attorney General.

Hydro One appealed an order from the Superior Court of Justice seeking a declaration that the Ontario Provincial Police must provide accident reports containing personal information of drivers and vehicle owners when Hydro One's property is damaged in traffic accidents.

The OPP refused to provide such reports without a court order, citing the Freedom of Information and Protection of Privacy Act.

The Court of Appeal adjourned the appeal to receive written submissions on two jurisdictional issues: whether the court could make a declaration interpreting a statute under the Rules of Civil Procedure when there is no actual lis between the parties, and whether the court could make a declaration interpreting FIPPA provisions outside the context of a judicial review of a privacy commissioner's decision.

The applicant brought a habeas corpus application seeking release from a five-year immigration detention pending deportation, along with a claim for Charter damages under s. 24(1) for alleged violations of his ss. 7, 9, 10, and 12 rights.

During the hearing, the applicant was deported to Jamaica, rendering the habeas corpus application moot.

The court proceeded to hear the Charter damages claim, finding it had jurisdiction to do so without requiring bifurcated proceedings.

Ultimately, the court dismissed the Charter claims, concluding that the lengthy detention was lawful, subject to regular review, and not grossly disproportionate or cruel and unusual, as the delay was primarily caused by Jamaican authorities' failure to issue a travel document.

The applicants, an immigration detainee and a remand detainee housed in a maximum security provincial correctional facility, brought an application for habeas corpus and a remedy under s. 24(1) of the Charter.

They alleged that frequent and unpredictable lockdowns, primarily caused by staff shortages, violated their Charter rights.

During lockdowns, inmates were confined to their double-bunked cells for 24 hours a day with limited access to showers, phones, and programs.

The court found that the conditions during the lockdowns, which occurred approximately 50% of the time, constituted cruel and unusual treatment in violation of s. 12 of the Charter.

The court declined to order a systemic remedy or a transfer, but awarded Charter damages of $60,000 to the immigration detainee (payable jointly by Ontario and Canada) and $25,000 to the remand detainee (payable by Ontario).