Joanna Lee Birenbaum

The defendant union brought a motion for summary judgment to dismiss the plaintiff's defamation claim on the basis of qualified privilege.

The plaintiff, a former union local president, alleged that statements made in a pamphlet distributed at an annual general meeting were defamatory.

The court found that the statements were made on an occasion of qualified privilege, as the union executive had a duty to respond to the plaintiff's ongoing criticisms and inform members of the local's history.

The court concluded there was no genuine issue requiring a trial, as the plaintiff failed to provide evidence of express malice to defeat the privilege, and granted the summary judgment motion.

The self-represented moving party sought orders dispensing with the requirement to file transcripts and a signed copy of the order being appealed in her motion for leave to appeal to the Divisional Court.

The moving party argued that filing these documents would prejudice her by acknowledging procedural irregularities and the presence of non-parties.

The court dismissed the motion, finding that the transcripts were not required under the rules in the first place, and that the signed order was a mandatory component of the motion record that caused no prejudice.

Costs were awarded to the respondents on a partial indemnity basis.

The defendants moved to strike the plaintiffs' statement of claim, arguing no reasonable cause of action, lack of standing for the Barbra Schlifer Clinic, and that the action was frivolous, vexatious, and an abuse of process.

The plaintiffs sought declarations of systemic sex discrimination by the London Police Service in investigating sexual assault complaints and an order for a court-supervised external review.

The court allowed the motion in part, affirming that the claim was not plainly and obviously bound to fail and that the Clinic had public interest standing.

However, several paragraphs of the statement of claim were struck for pleading evidence or being vexatious and inflammatory.

This costs endorsement followed a Request for Direction (RFD) concerning privacy protections for the National Centre for Truth and Reconciliation (Centre) regarding Indian Residential Schools Settlement Agreement (IRSSA) documents.

The court had previously dismissed the RFD brought by Independent Counsel.

In this decision, the court considered costs submissions from Independent Counsel, the Centre, and the Assembly of First Nations (AFN), with Canada opposing.

The court declined to award costs to the Centre due to its acknowledged mistake in posting unredacted information and an unreasonable costs request.

However, it awarded the AFN $16,000 in partial indemnity costs, to be paid by Canada, recognizing the AFN's essential and helpful role in representing First Nations' perspective, despite Canada's success in the underlying RFD.

The court found jurisdiction to order Canada to pay costs due to its role as IRSSA administrator.

Independent Counsel brought a Request for Directions seeking an order imposing strict privacy conditions on the National Centre for Truth and Reconciliation regarding documents transferred from the Truth and Reconciliation Commission.

They argued the Centre was bound by the same federal privacy legislation as the Commission under the Indian Residential Schools Settlement Agreement.

The court dismissed the request, finding that the Centre is not a federal government institution and is appropriately governed by Manitoba's privacy legislation and the National Centre for Truth and Reconciliation Act, which strike an appropriate balance between truth-telling and privacy.

This endorsement addresses costs arising from Requests for Direction (RFDs) concerning the Indian Residential Schools Settlement Agreement (IRSSA) Notice Program.

The Assembly of First Nations (AFN), Inuit Representatives, National Centre for Truth and Reconciliation (NCTR), and Independent Counsel sought full indemnity costs from Canada for their participation.

The court affirmed its special jurisdiction under IRSSA for costs awards, allowing deviation from standard indemnity principles.

It found Canada to be an appropriate costs payor due to its role as IRSSA administrator, not misconduct.

However, the court denied costs for pre-litigation activities, deeming them voluntary, and found the amounts claimed by NCTR and Independent Counsel excessive and disproportionate.

Ultimately, the court awarded partial indemnity costs to all four parties, significantly less than requested.

The Chief Adjudicator of the Indian Residential Schools Independent Assessment Process brought a Request for Direction regarding the notice program for the disposition of highly confidential records.

The court previously ordered the destruction of these records subject to a 15-year retention period during which claimants could choose to archive them at the National Centre for Truth and Reconciliation.

The main issue was whether the court had jurisdiction to order Canada to fund the participation of the Assembly of First Nations, Inuit Representatives, and the NCTR in the notice program.

The court found it had jurisdiction under the Class Proceedings Act and its inherent supervisory powers, and ordered Canada to provide funding, albeit at reduced amounts reflecting the organizations' limited roles.

The appellant, a registered physiotherapist, appealed a decision of the Discipline Committee finding him guilty of professional misconduct for inappropriate touching during a patient's ankle treatment.

The Committee imposed a three-month suspension and costs.

On appeal, the appellant argued the Committee breached procedural fairness by attempting to physically recreate his described treatment techniques during their private deliberations.

The Divisional Court dismissed the appeal, holding that the Committee's actions were a proper evaluation of the evidentiary record and its credibility findings were reasonable and entitled to deference.

The penalty was also upheld as falling within a reasonable range.

The appellant, a physiotherapist, appealed a finding of professional misconduct and penalty imposed by the College's Discipline Committee after she failed to appear for a caution and subsequent disciplinary hearings.

The appellant argued she was denied procedural fairness.

The Divisional Court dismissed the appeal, finding that the appellant waived her procedural rights by intentionally failing to attend the hearings, and that her specific allegations of procedural unfairness, bias, and improper evidence consideration lacked merit.

The finding of professional misconduct and the penalty were deemed reasonable.

The accused, H.F., facing sexual assault charges, brought an application for the production of Children's Aid Society (CAS) records related to the complainant, LFR, his stepdaughter.

The Defence argued H.F. was already in lawful possession of the records from prior child protection proceedings and thus the s. 278 Criminal Code regime for third-party records did not apply.

The Crown and Complainant argued the records were not in lawful possession for criminal proceedings and were subject to s. 278.

The court found that H.F. was not in lawful possession of the CAS records for the purpose of criminal proceedings, and the records were subject to the s. 278 disclosure scheme.

The court further determined that the Defence failed to establish the records were "likely relevant" to an issue at trial and that their production was not necessary in the interests of justice, considering the complainant's privacy rights and the limited probative value of the records.

The application was denied, and the records were deemed inadmissible.

The College of Dental Hygienists of Ontario alleged that the registrant committed professional misconduct by failing to comply with an order of the Inquiries, Complaints and Reports Committee to complete a portfolio development course.

The registrant admitted to the allegations and pled guilty.

The Discipline Committee accepted the joint submission on penalty, ordering a reprimand, a two-month suspension, completion of specified ethics and jurisprudence courses, and $1,200 in costs.

The Catholic entities appealed an order allowing residential school survivors to archive their Independent Assessment Process (IAP) documents with the National Centre for Truth and Reconciliation without the consent of alleged perpetrators.

Canada cross-appealed, arguing the IAP documents were government records subject to federal archiving and privacy legislation and could not be destroyed.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that only claimants have the right to decide whether to archive their documents.

The Court further held that the IAP documents are not government records because they are not under government control, and upheld the supervising judge's order to destroy the documents after a 15-year retention period to protect the claimants' privacy and confidentiality.

The applicants sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Physiotherapists of Ontario, which issued a caution regarding their public communications but did not refer the matter to discipline.

The applicants argued the ICRC exceeded its jurisdiction, exhibited bias, denied procedural fairness, and infringed their Charter rights.

The Divisional Court dismissed the applications, finding the ICRC acted reasonably, did not make improper findings of fact or misconduct, and appropriately balanced Charter values.

A motion sought to add the National Centre for Truth and Reconciliation as a party, or alternatively as an intervenor, to a request for directions brought by the Truth and Reconciliation Commission concerning document production obligations under the Indian Residential Schools Settlement Agreement.

The moving party argued that because the Commission’s mandate was nearing expiry, it might become responsible for receiving and archiving documents produced under any order.

The court held that the repository’s role under the settlement agreement was distinct from the Commission’s document‑collection mandate and that its presence was not necessary for the court to adjudicate the issues.

The court further held that the moving party had not demonstrated a direct interest or that its participation would enhance the court’s determination of the request for directions.

Both joinder and intervention were refused.

The self-represented appellant appealed an order dismissing his action against multiple defendants under Rule 2.1 of the Rules of Civil Procedure as frivolous and vexatious.

The Court of Appeal issued a notice under Rule 2.1 indicating the appeal itself may be dismissed on similar grounds.

The Court found the appellant's pleading contained no intelligible claims against the respondents and sought non-justiciable relief regarding the redesign of Ontario's social welfare and legal services systems.

The appeal was dismissed as frivolous, vexatious, and an abuse of process.

A motion was brought for leave to intervene as an added party in two Requests for Direction concerning the disposition of Independent Assessment Process records created under the Indian Residential Schools Settlement Agreement.

The proposed intervenor, the National Research Centre hosted by the University of Manitoba, argued that it had a direct interest because it might be tasked with archiving the records and could assist the court on privacy and archival practices.

Several Catholic organizations opposed the motion, arguing the court lacked jurisdiction and that the applicant should participate only as a friend of the court.

The court held that it retained ongoing supervisory jurisdiction over the implementation of the class action settlement under the Class Proceedings Act, 1992 and the settlement agreement.

The court found the applicant met the criteria for intervention and that its participation would assist the court.

The applicant applied for additional licensed areas for its premises.

Several objectors, including a condominium corporation and local residents, opposed the application.

At the hearing, the parties presented an agreement whereby the applicant agreed to certain conditions, including soundproofing measures and noise control, in exchange for the withdrawal of the objections.

The Board accepted the agreement and approved the application subject to the agreed-upon conditions.

A pre-hearing teleconference was held regarding an application by Andy Poolhall Inc. for additional licensed areas.

The Board ordered an adjournment of the hearing date on consent, granted party status to objectors Clifford Ottaway and the 301 Markham Street Condominium Corporation, deferred Robert Vipond's request for objector status, and set deadlines for witness and evidence disclosure.