Josh Hunter

Five organizations brought motions for leave to intervene in an appeal concerning the constitutionality of provincial legislation that required the removal of bicycle lanes in Toronto.

The underlying judgment found the legislation violated section 7 of the Charter.

The motion judge granted leave to all five proposed interveners, but limited the scope of their interventions to specific issues such as the positive/negative rights dichotomy, the interpretation of recent section 7 jurisprudence, and the application of equality and child-interest principles to the gross disproportionality analysis.

The interveners were restricted to 10-page factums and brief oral submissions.

The moving parties, consisting of two churches and their members, brought motions to set aside judicial orders directing compliance with COVID-19 religious gathering limits.

They argued the capacity restrictions infringed their freedom of religion under s. 2(a) of the Charter.

The court found that the numerical and percentage capacity limits did infringe s. 2(a) by interfering with the claimants' ability to engage in religious activity as a collective in-person congregation.

However, applying the Oakes test, the court concluded that the restrictions were demonstrably justified under s. 1 of the Charter as a reasonable limit in a free and democratic society to protect public health during the pandemic.

The motions were dismissed.

The applicant sought sanctions for civil contempt against the respondent church and its pastors for repeatedly breaching a restraining order that enforced COVID-19 public health gathering limits.

The court found the respondents in contempt for holding large indoor religious services in defiance of the order.

Applying the factors for civil contempt sentencing, the court imposed fines of $35,000 on the church, $10,000 on the lead pastor, and $3,000 on the assistant pastor.

The court also ordered the church doors to be locked until gathering limits were eased to permit 30 percent capacity, and awarded $69,000 in partial indemnity costs to the applicant.

The applicant church sought $75,000 in costs after being unsuccessful on an urgent application for an interim injunction to stay COVID-19 restrictions on in-person religious services.

The church argued costs were warranted because the case raised a novel issue of significant public importance.

The court dismissed the request, finding that the injunction application focused on the narrow interests of the church rather than broad public interest, and turned on settled legal principles rather than novel issues.

No costs were awarded to either party for the injunction application.

The applicant church sought an interim injunction to exempt it from O. Reg. 82/20, which restricted religious gatherings to a maximum of ten people in regions designated as Stage 1 during the COVID-19 pandemic.

The church argued the regulation infringed its freedom of religion under s. 2(a) of the Charter.

Applying the RJR-MacDonald test, the court found that the church established a serious issue to be tried and irreparable harm.

However, the court concluded that the balance of convenience favoured the respondent, as the public interest in protecting health and preventing the spread of COVID-19 outweighed the temporary restriction on the church's religious freedom.

The application for an interim injunction was dismissed.

In a priority dispute following the bankruptcy of a paving company, a bond company argued that funds held by the receiver in a project account were statutory trust funds under the Construction Lien Act and therefore excluded from the bankrupt's estate under s. 67(1)(a) of the Bankruptcy and Insolvency Act.

The court dismissed the trust claim, finding that the funds lacked the certainty of subject matter required to constitute a true common law trust, as they were not identifiable or held separately prior to the receivership.

Consequently, the funds were to be distributed under the BIA scheme.

The applicant sought a declaration that the informal name “Domestic Violence Court” was unconstitutional and should be replaced with “Domestic Court”.

He alleged the name violated ss. 7, 12, and 15 of the Canadian Charter of Rights and Freedoms by stigmatizing accused persons and affecting fairness in criminal proceedings.

The court held the applicant failed to establish any deprivation of security of the person or other Charter rights, noting that subjective feelings of stigma were insufficient without objective evidence of serious psychological harm.

The court also found the name rationally connected to the court’s legitimate purpose of addressing domestic violence cases and rejected claims of cruel and unusual treatment or discrimination.

The application was dismissed.

A pharmacist challenged the constitutionality of mandatory licence revocation provisions under the Health Professions Procedural Code after pleading guilty to sexual abuse of a patient based on a consensual sexual relationship.

The applicant argued the provisions were ultra vires the province because, in pith and substance, they regulated sexual morality and therefore fell within Parliament’s criminal law power.

The Superior Court held that the dominant purpose of the provisions was the protection of the public through the regulation of professional standards governing health care practitioners.

The provisions were therefore within the province’s jurisdiction over property and civil rights under s. 92(13) of the Constitution Act, 1867.

The court also held the Attorney General was estopped from challenging the court’s jurisdiction because the issue had already been determined in earlier proceedings.

An association representing justices of the peace brought an application seeking a declaration that existing pension arrangements—under which justices of the peace participate in the provincial public servants’ pension plan—violate the constitutional principle of judicial independence.

The respondent argued that the application should not proceed because the issue was currently before the Justice of the Peace Remuneration Commission.

The court held that although it possessed inherent jurisdiction to determine constitutional questions, courts should ordinarily refrain from intervening before specialized administrative processes are completed.

Given that the Commission was actively considering the same issue and could provide an informed report, the court found the application premature.

The application was therefore adjourned pending the Commission’s report.

Following a prior decision granting Rule 21 motions and permanently staying a counter-application, the court addressed costs.

The moving parties sought full indemnity costs, arguing the counter-application contained unsubstantiated allegations of dishonesty, illegality, and conspiracy against participants in the Canadian justice system.

The court held that such allegations justified a full indemnity award.

After reviewing the claimed amounts and correcting a minor double-counting issue, the court fixed costs payable forthwith to both moving parties on a joint and several basis against certain self-represented litigants.