Joshua McBride Hunter

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).

This is a case management decision in an appeal of a Superior Court judgment that declared section 195.6 of the Highway Traffic Act infringed section 7 of the Canadian Charter of Rights and Freedoms and could not be justified under section 1 of the Charter.

The decision addresses the timetable for the appeal and the appellants' motion to expedite the hearing.

The Court of Appeal established a detailed timetable culminating in a hearing date of January 28, 2026, balancing the public importance of the issues with the need for proper briefing and consideration of intervention requests.

The applicants challenged the constitutionality of section 195.6 of the Highway Traffic Act, which required the removal of protected bicycle lanes on Bloor Street, University Avenue, and Yonge Street in Toronto and their replacement with lanes for motor vehicle traffic.

The applicants argued that the provision violated section 7 of the Canadian Charter of Rights and Freedoms by putting cyclists at increased risk of injury and death, and that the infringement was arbitrary and grossly disproportionate to the stated objective of reducing traffic congestion.

The court found that the provision was unconstitutional, as the evidence established that removing the protected bike lanes would not achieve the stated objective of reducing congestion and would instead increase the risk of collisions and injuries for all road users.

The court also found that the government had been advised internally that the removal would not reduce congestion, yet proceeded with the legislation anyway.

The application was not moot despite subsequent amendments to the legislation, as the government retained the power and stated intention to remove the bike lanes.

The applicants sought an interlocutory injunction to restrain the implementation of s. 195.6 of the Highway Traffic Act, which requires the removal of certain protected bike lanes in Toronto.

The court found that the applicants met the test for an interlocutory injunction, including a serious issue to be tried, irreparable harm, and a balance of inconvenience favouring the applicants.

The injunction was granted, suspending the operation of the provision until the court’s decision on the constitutional application.

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 moving party sought to review a December 2, 2022 order of a single judge of the Court of Appeal and requested an adjournment at the hearing.

The Court dismissed the adjournment request as unfounded.

The review motion itself was found to be without merit, as the original order contained no error and was, in fact, helpful to the moving party by providing directions, relief from rules compliance, and an extension to perfect a motion for leave to appeal.

The review motion was dismissed, and the moving party was granted a final 30-day extension to perfect his motion for leave to appeal, with costs awarded to the responding party.

The appellants sought to appeal the dismissal of their application challenging outdoor gathering restrictions imposed as public health measures during the COVID-19 pandemic, which was initially dismissed for lack of public interest standing.

The Court of Appeal determined that the underlying application was moot because the challenged regulations were no longer in force.

The court declined to exercise its discretion to hear the appeal regarding Mr. Baber's private interest standing, finding that this issue was also moot and that a decision would not resolve any live controversy or bind future hypothetical challenges.

The Court of Appeal for Ontario considered a reference question regarding the constitutionality of the Greenhouse Gas Pollution Pricing Act, Part 5 of the Budget Implementation Act, 2018, No. 1.

The Act establishes a federal carbon pricing scheme applicable to provinces that have not adopted sufficiently stringent carbon pricing mechanisms.

The majority held that the Act is constitutional under the national concern branch of the Peace, Order, and Good Government power, as establishing minimum national standards to reduce greenhouse gas emissions is a matter of national concern.

The fuel charge and excess emissions charge were found to be valid regulatory charges, not taxes.

Justice Huscroft dissented, arguing that the Act improperly expands federal jurisdiction over greenhouse gas emissions, which are generated by virtually all provincial activities.

This decision addresses motions for leave to intervene and to file records in a constitutional reference concerning the Greenhouse Gas Pollution Pricing Act.

The motion judge granted leave to intervene to twelve parties, including three Attorneys General as of right and nine additional parties seeking discretionary leave.

The judge declined to grant leave to one individual applicant.

The decision also addresses the scope of factums, oral argument time allocation, and the relaxed approach to supplementing the record in constitutional references as a court of first instance.

A priority dispute arose between Royal Bank of Canada (RBC), a secured creditor of bankrupt contractor A-1 Asphalt Maintenance Ltd., Guarantee Company of North America (GCNA), a bond company and secured creditor, and certain employees represented by unions.

The central issue was whether funds paid to the receiver by owners, which constituted "trust funds" under section 8 of the Construction Lien Act (CLA), were excluded from the bankrupt's estate available to creditors pursuant to section 67(1)(a) of the Bankruptcy and Insolvency Act (BIA).

The motion judge found the funds were not excluded and were available for distribution.

The Court of Appeal allowed the appeal, holding that provincially created statutory trusts satisfying general principles of trust law are preserved from distribution to ordinary creditors under the BIA.

The applicant, an almost 80-year-old woman suffering from severe osteoarthritis and intolerable pain, sought a court declaration to confirm her eligibility for medical assistance in dying (MAID) under s. 241.2(2)(d) of the Criminal Code, specifically that her natural death was "reasonably foreseeable." Two physicians had assessed her as eligible, but one declined to proceed due to fear of criminal charges given conflicting medical opinions on "reasonable foreseeability." The Attorneys General of Canada and Ontario opposed the declaration, arguing it was unnecessary, interfered with prosecutorial discretion, and that MAID eligibility was for medical professionals, not courts.

The court found the application misconceived as a constitutional challenge but recognized a live controversy regarding statutory interpretation.

The court declined to grant a declaration of eligibility or immunity but issued an interpretative declaration that, based on the evidence, the applicant's natural death was reasonably foreseeable within the meaning of the Criminal Code, aiming to clarify the statute for medical practitioners without interfering with prosecutorial discretion.

The appellant appealed from a Superior Court order dismissing his application on the grounds of res judicata and abuse of process.

The appellant had previously brought an application challenging the constitutionality of sections of the Human Rights Code of Ontario, which was dismissed by Wright J. He subsequently refiled the application with additional research and content.

The Court of Appeal upheld the dismissal, finding that the refiled application was fundamentally an attempt to re-litigate the issues already decided by Wright J. The court also rejected the appellant's claim of procedural unfairness, noting that the trial judge had provided both parties with the opportunity to make oral submissions.

The respondent was charged with driving a commercial vehicle not equipped with a working speed limiting system contrary to section 68.1(1) of the Highway Traffic Act of Ontario.

At trial, the respondent challenged the constitutionality of the legislation, arguing it infringed his right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms by preventing him from accelerating to avoid dangerous driving situations.

The trial justice found in favour of the respondent and struck down the provision.

The Crown appealed.

The appellate court allowed the appeal, finding that the respondent failed to establish on a balance of probabilities that the speed limiter legislation deprived him of security of the person, and that the legislation was not arbitrary.

The court also addressed the procedural issue of continuing the appeal following the respondent's death, substituting his widow as respondent in the interests of justice.

The respondents brought a motion to dismiss an application challenging the constitutionality of public funding for Ontario Catholic separate schools.

The applicant argued that such funding violated Charter freedoms and equality rights and sought declarations eliminating or reducing funding for Catholic schools.

The court held that the applicant lacked private interest standing as a taxpayer and declined to grant public interest standing.

Binding Supreme Court of Canada and Court of Appeal jurisprudence confirmed that funding for Catholic separate schools is constitutionally protected under the Constitution Act, 1867 and immune from Charter scrutiny.

The application was dismissed for lack of standing and lack of any reasonable prospect of success.

The moving parties brought Rule 21 motions seeking to stay or dismiss a counter-application alleging a wide-ranging conspiracy involving numerous judges, lawyers, public officials, and institutions.

The applicants alleged systemic corruption, crimes against humanity, and other misconduct within the Ontario justice system, and sought extensive relief including billions of dollars in damages.

The court found the allegations to be patently incredible, scandalous, and incapable of proof, concluding that the proceeding had no reasonable prospect of success and constituted an abuse of process.

Applying Rule 21.01(3)(c) and the court’s inherent jurisdiction to control abusive litigation, the court permanently stayed the counter-application.

The decision emphasized the court’s role in preventing vexatious proceedings from consuming judicial resources.

Former directors and officers of an insolvent corporation sought an order requiring that an environmental remediation claim filed by the provincial environment ministry be adjudicated within ongoing insolvency proceedings under the Companies’ Creditors Arrangement Act.

They also sought to stay an appeal proceeding before the Environmental Review Tribunal concerning a director’s order requiring remediation of a contaminated site.

The court held that the statutory scheme under the Environmental Protection Act assigns jurisdiction over appeals of director’s environmental orders to the Environmental Review Tribunal.

Given that the insolvency restructuring had effectively concluded and no plan of arrangement would compromise claims against the directors and officers, there was no basis for the insolvency court to assume jurisdiction over the environmental order appeal.

The court rejected arguments based on federal paramountcy and interjurisdictional immunity.

The motion was dismissed and the matter left to the Environmental Review Tribunal.

In CCAA proceedings involving a large telecommunications company, the applicants sought authorization to cease environmental remediation work at several contaminated sites and to have regulatory remediation orders treated as claims within the insolvency process.

The provincial environmental regulator argued that its orders imposed regulatory performance obligations rather than monetary claims and therefore should not be stayed by the insolvency proceedings.

The court held that where a debtor is no longer operating and compliance with regulatory orders necessarily requires the expenditure of funds, such orders are in substance financial obligations.

The court concluded that environmental remediation orders relating to pre‑filing contamination constituted claims subject to the CCAA claims process and were stayed by the existing stay of proceedings.

The applicants were authorized to cease remediation activities and environmental claims were directed to be resolved through the established claims procedure.