Joshua McBride Hunter

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, 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 Association of Justices of the Peace of Ontario brought an application for judicial review of the Lieutenant-Governor in Council's response to the Sixth Justices of the Peace Remuneration Commission's report.

The Association challenged the government's rejection of salary and WASH Court day recommendations, and its unilateral implementation of benefit changes.

The Divisional Court held that the government provided a rational basis for rejecting the salary and WASH Court recommendations.

However, the court found the unilateral implementation of benefit changes without independent commission consideration to be unconstitutional, quashing that part of the response and prohibiting implementation until a commission reports on the issue.

A motion by the government to set aside an interlocutory stay order was dismissed.

The appellant appealed the dismissal of his application for a declaration that the name 'Domestic Violence Court' violated his rights under sections 7, 12, and 15 of the Charter.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the appellant failed to demonstrate serious state-imposed psychological harm, cruel and unusual treatment, or discrimination.

The court noted that such applications risk trivializing important Charter rights.

The Minister of Education brought a Stated Case asking the Divisional Court to determine whether the Education Act permits school boards to pay for life insurance and health benefits for retired employees over 65 years of age.

The Minister argued that the Act only permits payments to current employees and that specific statutory authority is required for such expenditures.

The Court held that while ss. 177(3) and 177(4) do not authorize these payments, other sections of the Act, including ss. 58.5(1), 170(1)18, 171(1)3, and 177(1), when read together and in context, provide the necessary authority.

The Court found that school boards have the power to negotiate and pay for post-retirement benefits as part of employee compensation packages.

The Attorney General for Ontario sought judicial review of an arbitration award between CUPE Local 27 and the Greater Essex County District School Board, arguing the arbitrator erred in interpreting s. 177 of the Education Act.

The Divisional Court dismissed the application for the reasons given in a related Stated Case (2016 ONSC 2361), finding the result was the same regardless of whether the standard of review was correctness or reasonableness.

Costs of $5,000 were awarded to CUPE Local 27.

The Association of Justices of the Peace of Ontario brought an urgent motion for an interim stay of the implementation of changes to pre-retirement and post-retirement benefits for Justices of the Peace, pending an application for judicial review.

The applicant argued that the government's unilateral implementation of these changes without input from an independent commission violated constitutional principles of judicial independence.

Applying the RJR-Macdonald test, the court found a serious issue to be tried, irreparable harm to the justices if the stay was not granted, and that the balance of convenience favoured the applicant.

The interim stay was granted.

The appellant pharmacist challenged the constitutional validity of the mandatory revocation provisions of the Health Professions Procedural Code after engaging in a consensual sexual relationship with a patient.

He argued the provisions intruded into federal criminal law jurisdiction by regulating morality.

The Court of Appeal dismissed the appeal, holding that the provisions are in pith and substance the regulation of health care professionals under provincial jurisdiction, aimed at protecting the public and maintaining the integrity of the professional-patient relationship.

The appellant, a commercial truck driver, appealed his conviction under the Highway Traffic Act for operating a truck with a speed limiter set above the mandated 105 km/h.

He argued the speed limiter requirement violated his right to security of the person under section 7 of the Charter by preventing him from accelerating to avoid collisions.

The Court of Appeal held that while the legislation infringed section 7 by being overbroad in rare situations where acceleration is necessary to avoid accidents, the infringement was demonstrably justified under section 1 of the Charter as a reasonable limit to improve highway safety and reduce greenhouse gas emissions.

The appeal was dismissed.

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.

The Attorney General of Ontario appealed a motion judge's decision that allowed an Ontario supervisory judge to sit outside the province with judges from British Columbia and Quebec to hear motions regarding a national class action settlement, without requiring a video link to an Ontario courtroom.

The Court of Appeal held that while superior courts have the inherent jurisdiction to conduct hearings outside their home province, the open court principle under section 135 of the Courts of Justice Act requires a video link to a reasonably accessible Ontario courtroom.

The appeal was allowed to amend the order to require a video link.

The appellant, a deaf individual with limited communication skills, was involuntarily committed under the Mental Health Act and detained in a maximum security psychiatric facility for 19 years.

He challenged the constitutionality of the involuntary committal provisions under s. 7 of the Charter and alleged a violation of his s. 15(1) equality rights due to inadequate sign language interpretation.

The Court of Appeal held that the Mental Health Act violates s. 7 when applied to long-term detainees because the Consent and Capacity Board lacks the authority to ensure that liberty is restricted no more than necessary.

The Court also found a violation of s. 15(1) due to the systemic failure to provide adequate interpretation services.

The Court severed the words 'or subsequent' from s. 20(4)(b)(iii) of the Act, suspending the declaration of invalidity for 12 months, and granted a declaration of the appellant's equality rights.

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.

The Association of Justices of the Peace of Ontario sought judicial review of the provincial government's decision to reject the recommendation of the Justice of the Peace Remuneration Commission regarding the appropriate Industrial Aggregate Index rate for a 2008 salary increase.

The Commission's majority had recommended a compromise rate of 3.3%, which the government rejected in favour of the minority's 2.7% recommendation.

The Divisional Court dismissed the application, finding that the government met the standard of simple rationality by providing legitimate reasons for its decision, including that the majority failed to answer the specific question referred to it and failed to properly weigh the required statutory criteria.

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.

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 Attorney General moved under s. 21(5) of the Courts of Justice Act to set aside a motion judge's order refusing to consolidate a pharmacist's constitutional challenge in the Superior Court with his professional misconduct appeal in the Divisional Court.

The Attorney General sought to have the consolidated proceeding stayed and the constitutional issue remitted to the College's Discipline Committee.

The Divisional Court dismissed the motion, finding no error of law and no palpable and overriding error in the motion judge's conclusion that exceptional circumstances justified allowing the constitutional challenge to proceed in the Superior Court, particularly given the Discipline Committee's inability to grant a general declaration of invalidity.

The appellant appealed a decision of the Discipline Committee dismissing a motion to reconsider its order suspending the mandatory revocation of the respondent pharmacist's certificate of registration for sexual abuse.

The appellant argued the Committee lacked jurisdiction to suspend a mandatory revocation under the Health Professions Procedural Code.

Applying a reasonableness standard of review, the Divisional Court held that the Committee's interpretation of its home statute was reasonable.

The Court found that the mandatory revocation provision did not preclude the Committee from exercising its general power to suspend penalty orders.

The appeal was dismissed.

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.