H. Scott Fairley

The appellants challenged the constitutional validity of the Tamil Genocide Education Week Act, 2021, arguing it was ultra vires Ontario and infringed their rights to free expression and equality under the Charter.

The Court of Appeal upheld the Act, finding its dominant purpose was to affirm and commemorate the Tamil-Ontarian community's experience, which falls within Ontario's power over local matters under s. 92(16) of the Constitution Act, 1867.

The Court also dismissed the Charter claims, concluding the Act does not suppress expression or draw a discriminatory distinction against Sinhala-Buddhists.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The applicants, representing members of Ontario's Sinhalese diaspora, brought applications challenging the constitutionality of the Tamil Genocide Education Week Act, 2021.

They argued the Act was ultra vires the province and violated their rights under sections 2(b) and 15 of the Charter.

The Superior Court of Justice dismissed the applications, finding that the Act is in pith and substance related to education, which falls within provincial jurisdiction.

The court further held that the Act does not restrict freedom of expression, nor does it create a discriminatory distinction based on enumerated or analogous grounds.

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.

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 appellants, current and former uniform members of the Waterloo Regional Police Service, appealed from a motion judge's order dismissing their proposed class action for want of jurisdiction and denying certification.

The appellants alleged systemic gender-based workplace discrimination and harassment, including breach of Charter rights and breach of the duty of fair representation.

The Court of Appeal upheld the dismissal, finding that the Superior Court lacked jurisdiction because the appellants' claims fell within the exclusive jurisdiction of labour arbitrators under the Police Services Act and the Human Rights Tribunal of Ontario.

The court noted that the collective agreement permits group grievances and arbitrators possess broad remedial powers.

The court determined the fair market value of the applicant's shares and the costs of the proceeding following a successful oppression application.

The court rejected the respondents' liquidation approach to valuation, preferring a going-concern adjusted book value approach, and fixed the share value at $668,674.

The court awarded substantial indemnity costs to the applicant and counter-respondents, citing the respondents' incivility, excessive posturing, and unfounded allegations of fraud.

The respondent was successful on a half-day motion brought by the applicants to remove her solicitors and add a defendant.

She sought costs on a substantial indemnity basis of $81,193.45, or alternatively on a partial indemnity basis of $61,637.67.

The court found that substantial indemnity costs were not warranted and that the requested amounts were disproportionate.

Costs were fixed and awarded to the respondent in the total amount of $42,520.33.

The applicants brought a motion to remove Cambridge LLP as solicitors of record for Sheila O’Donovan and to add Adam Cappelli as a party respondent.

The court applied a nine-factor test to assess the solicitor removal request, considering the likelihood of Mr. Cappelli being a witness and potential conflicts.

The court found no real conflict and upheld the client's right to choose counsel.

The motion to add Mr. Cappelli as a respondent was dismissed due to the advanced stage of the proceedings and delay by the applicants, though without prejudice to a future application for passing accounts.

The plaintiffs brought a proposed class action for civil conspiracy, defamation, and intentional infliction of mental distress against the defendants for distributing alleged hate speech pamphlets at a Pride Parade.

The lead defendant moved to dismiss the action under the anti-SLAPP provisions and as an abuse of process, and alternatively to strike the claim.

The plaintiffs moved for a Norwich Order to identify the anonymous co-defendants.

The court held that the defendant was estopped from denying the pamphlets were hate speech based on a prior Supreme Court decision, and thus the anti-SLAPP motion failed.

However, the court struck the class action because the torts pleaded are individual in nature and cannot be brought on behalf of a collective group.

The court granted leave to amend the claim to an opt-in joinder action and granted the Norwich Order on terms.

The appellants appealed a summary judgment enforcing a Consulting Agreement and a Letter of Credit Agreement, and the dismissal of their motion to consolidate two related actions.

The appellants argued the agreements were unenforceable as illegal loans under the Criminal Code and were procured in breach of fiduciary duty.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the case was document-driven, appropriate for summary judgment, the agreements were not loans, and no fiduciary duty existed.

Following the dismissal of an urgent anti-suit injunction application, the court determined the appropriate costs award.

The court found that the moving parties had manufactured urgency despite having months of advance notice of the foreign proceeding they sought to enjoin, and had delivered voluminous materials on extremely short notice, impairing the responding parties’ ability to respond.

The court concluded the litigation strategy was tactical and inconsistent with the Rules of Civil Procedure and principles of fairness.

As a result, the court awarded substantial indemnity costs to the successful responding parties.

The court fixed the costs award at $27,500 as fair and reasonable in the circumstances.

The plaintiffs, an Ontario-based equity research company and its founder, published a negative research report about the defendants, Indian corporations.

The defendants commenced a defamation action in India and obtained an anti-suit injunction against the plaintiffs.

The plaintiffs subsequently brought an action in Ontario and sought an urgent interlocutory anti-suit injunction to restrain the defendants from proceeding with their Indian action and from pursuing contempt proceedings against a witness in India.

The court dismissed the motion, finding that while there might be a serious issue to be tried regarding the appropriate forum, the plaintiffs failed to establish irreparable harm and the balance of convenience favoured the status quo due to the plaintiffs' delay in seeking relief.

The appellant sought to enforce a letter of request from a U.S. court to obtain documents and viva voce testimony from the respondent, a federal Crown corporation, for use in a U.S. action.

The application judge dismissed the application, finding the respondent enjoyed Crown immunity and the appellant failed to meet the criteria for enforcing letters rogatory.

The Court of Appeal allowed the appeal, holding that section 60 of the Ontario Evidence Act is a rule of practice and procedure that binds the Crown under section 27 of the Crown Liability and Proceedings Act.

The Court further held the application judge erred by treating the factors for enforcing letters rogatory as strict pre-conditions and by concluding that alternative disclosure under the Access to Information Act provided evidence of the same value.

The appellants appealed a summary judgment enforcing a United States judgment against them for costs incurred in removing hazardous substances from a copper mine.

The appellants argued the summary judgment should not have been granted due to a denial of natural justice and public policy concerns.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusions that the appellants had adequate notice and opportunity to defend the US proceeding but chose to walk away.

The Public Service Alliance of Canada sought certification as the bargaining agent for Canadian civilian employees working at a United States naval base in Newfoundland.

The United States claimed sovereign immunity from the jurisdiction of the Canada Labour Relations Board.

The Supreme Court of Canada held that while the bare contracts of employment had commercial aspects, the certification proceedings and the imposition of a collective bargaining regime would unacceptably interfere with the sovereign management and operation of the military base.

The Court concluded that the proceedings did not relate to a commercial activity within the meaning of the State Immunity Act, and therefore the United States was entitled to state immunity.

The appellant sought to appeal a decision dismissing his application to set aside wiretap authorizations (a Wilson application).

The Court of Appeal dismissed the appeal for want of jurisdiction.

The Supreme Court of Canada dismissed the appeal, holding that there is no right of appeal from a Wilson application and that the Charter does not guarantee such a right, for the reasons given concurrently in R. v. Meltzer.

The appellant, who had successfully appealed his impaired driving conviction to the Supreme Court of Canada based on a Charter breach, sought a rehearing to amend the judgment to award him costs on a solicitor and client basis.

The Court dismissed the appeal, holding that the broad discretion to award costs under the Criminal Code should not be fettered by a general rule that successful accused appellants or those establishing Charter infringements are automatically entitled to costs.

The Court found no oppressive conduct by the Crown to justify such an award.