Joshua McBride Hunter

The provincial legislature passed legislation to remove certain bicycle lanes in Toronto to reduce traffic congestion.

The respondents successfully challenged the legislation in Superior Court, arguing it violated section 7 of the Charter by depriving cyclists of security of the person in an arbitrary and grossly disproportionate manner.

On appeal, the Court of Appeal reversed the decision, holding that the Charter does not create a positive right to bicycle lanes and that the legislature's decision to repeal or amend prior policy choices regarding road use does not violate section 7.

The Court found the legislation was neither arbitrary nor grossly disproportionate.

The appellants brought an application seeking public funding for Jewish day schools in Ontario, arguing that the failure to provide such funding violates their Charter rights.

Ontario successfully moved to strike the application on the basis that the Supreme Court of Canada's decision in Adler v. Ontario definitively resolved the issue.

On appeal, the appellants argued there was a reasonable prospect of revisiting Adler under the Bedford/Carter test due to new evidence of antisemitism and developments in international and constitutional law.

The Court of Appeal dismissed the appeal, holding that the proposed new evidence did not fundamentally shift the parameters of the debate in Adler, and that s. 93 of the Constitution Act, 1867 remains a comprehensive code for denominational school rights.

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.

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 moving parties (Ontario) sought to schedule a motion for leave to appeal and a motion to stay an earlier order on an expedited basis.

The court declined to schedule the stay motion before a single judge prior to the leave to appeal motion, noting the responding parties needed time to respond to new affidavit material and that the matter was better suited for a panel.

The court established a schedule for the exchange of materials for the leave to appeal motion to be heard in writing by a panel.

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 appellant sought to uphold a provincial spending limit restricting third party political advertising to $600,000 in the year before a fixed-date election, while political parties faced no limits in the first six months of that period.

The majority held that the spending limit infringes s. 3 of the Charter by creating an absolute disproportionality in the political discourse, allowing political parties to drown out third party voices during a critical democratic period.

The majority further held the limit could not be saved under s. 1 as it failed the minimal impairment stage.

Two sets of dissenting judges would have allowed the appeal, finding the limit did not infringe s. 3 of the Charter on the evidentiary record, with the dissenters disagreeing on whether an expressive component exists within s. 3.

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 applicant filed an application for judicial review in the Divisional Court, seeking to review a decision by the Executive Legal Officer of the Court of Appeal to delist its appeal for failing to post security for costs.

The court initiated a review under Rule 2.1.01 of the Rules of Civil Procedure to determine if the application was frivolous, vexatious, or an abuse of process.

The court dismissed the application, finding it lacked legal merit because the Divisional Court has no jurisdiction to judicially review decisions of the Court of Appeal, which is a superior court of record.

Furthermore, the court noted that court administrators have the authority to manage court lists and the delisting was a direct consequence of the applicant's failure to comply with a court order to post security for costs.

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, two churches and their members, challenged the constitutionality of Ontario's COVID-19 regulations that imposed capacity restrictions on indoor and outdoor religious gatherings.

The motion judge found that the regulations infringed the appellants' freedom of religion under s. 2(a) of the Charter but were justified under s. 1.

On appeal, the appellants argued the motion judge erred in her treatment of expert evidence, her refusal to use hindsight evidence, her decision not to conduct separate analyses for other s. 2 Charter rights, and her s. 1 justification analysis.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's deferential approach to the government's response to an unprecedented public health emergency, her application of the precautionary principle, or her conclusion that the measures were minimally impairing and proportionate.

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 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.

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.