Julian N. Falconer

The appellants brought motions to stay the construction of two wind turbine projects pending their appeals of the Environmental Review Tribunal's decisions upholding the Renewable Energy Approvals.

The court found it lacked jurisdiction under the Rules of Civil Procedure or the Environmental Protection Act to stay the Director's approvals directly, treating the motions as requests for interlocutory injunctions.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded the appellants would not suffer irreparable harm prior to the appeal hearing, as the turbines would not be operational by then.

The motions were dismissed.

Following earlier decisions concerning requests for directions in litigation arising from the Indian Residential Schools Settlement Agreement, the court had previously awarded costs payable by the Truth and Reconciliation Commission to Independent Counsel.

After that decision was released, Canada delivered additional submissions asserting it should not be liable for costs, and the Truth and Reconciliation Commission asserted a right to file further reply submissions.

The court held that the additional submissions were unnecessary and procedurally improper because the parties had already been given the opportunity to address costs.

The judge confirmed that the earlier costs decision would not be altered and refused to permit further reply submissions.

Following earlier reasons concerning Requests for Direction under the Indian Residential School Settlement Agreement regarding the treatment of Independent Assessment Process documents, the court addressed costs.

Independent counsel who represented the interests of claimants sought full or substantial indemnity costs against the Truth and Reconciliation Commission.

The court held that although the commission’s request for directions was reasonable and undertaken pursuant to its mandate, independent counsel had effectively acted as amicus curiae and provided helpful submissions on behalf of claimants.

Considering the partial success of the parties and the reasonableness of the amounts claimed, the court exercised its discretion to award reduced partial indemnity costs.

Requests for directions were brought regarding the disposition of documents generated in the Independent Assessment Process established under the Indian Residential Schools Settlement Agreement.

The moving parties sought guidance on whether the documents, which contained highly sensitive narratives of abuse and personal information, should be archived or destroyed.

The court held that the documents were confidential, subject to the implied undertaking and the law of breach of confidence, and were created for a private adjudicative process.

Interpreting the settlement agreement and exercising supervisory jurisdiction over the class action settlement, the court concluded the documents must ultimately be destroyed after a retention period.

During the retention period, claimants must be notified of their option to consent to the transfer of redacted records to the National Research Centre for Truth and Reconciliation.

This appeal and cross-appeal addressed whether Ontario’s SIU framework permits police officers involved in fatal incidents to consult counsel before completing duty notes.

The majority held the regulatory scheme does not permit consultation with counsel at the note-making stage, emphasizing transparency, public confidence, legislative history, and the duty to prepare independent, complete notes.

It rejected even limited pre-note legal consultation as inconsistent with the scheme’s objectives, while confirming officers may consult counsel after filing notes.

The cross-appeal was allowed, overturning the Court of Appeal’s allowance of basic legal advice prior to notes.

Dissenting reasons on cross-appeal would have preserved a narrow right to basic legal advice that excluded drafting assistance.

The appellants appealed an order dismissing their motion for partial summary judgment in an Ontario action seeking to enforce German submissions to compulsory enforcement arising from guarantees of bank loans.

The central issue was whether those instruments were foreign judgments for Ontario limitations purposes or were governed by German substantive law under conflict of laws principles.

The court held the instruments were not German judgments and that German law supplied the applicable 30-year limitation period, with the result that the claims were not statute-barred.

The court also rejected the argument that the motion judge had recast the pleadings and dismissed the motion to admit fresh evidence.

The United States of America sought the extradition of the respondent for the offence of child luring.

The perpetrator communicated with a 17-year-old female online and coerced her into engaging in sexual activity with her 13-year-old sister over a Skype video call.

The communications were traced to an IP address assigned to the respondent at the relevant time.

The court found that the IP subscriber information provided a sufficient foundation for a reliable inference that the respondent was the perpetrator, satisfying the test for committal under the Extradition Act.

The application for committal was granted.

The appellant filed a police misconduct complaint under the Police Services Act and commenced a parallel civil action for damages arising from the same arrest.

After the disciplinary hearing officer found the officers not guilty, the respondents successfully moved to strike the civil claims on the basis of issue estoppel.

The Supreme Court of Canada, in a 4-3 decision, allowed the appeal, holding that while no public policy rule should categorically exclude police disciplinary hearings from issue estoppel, the Court of Appeal erred in its discretionary analysis by failing to consider the significant differences in purpose, scope, and stakes between the two proceedings, the parties' reasonable expectations, and the unfairness of permitting the Chief of Police's designate's decision to exonerate the Chief from civil liability.

The Truth and Reconciliation Commission sought directions regarding Canada's obligations under the Indian Residential Schools Settlement Agreement to provide documents archived at Library and Archives Canada (LAC) and documents relating to the TRC's legacy mandate.

Canada moved to strike the TRC's request, arguing the TRC lacked capacity and standing, and moved to strike several affidavits.

The court held that the TRC had capacity to bring the proceedings and declined to strike most of the affidavits.

On the substantive issues, the court ruled that Canada's obligation to provide relevant documents extends to those archived at LAC, but that the TRC's legacy mandate does not include evaluating Canada's policy responses, meaning Canada need not produce documents relating to those responses.

Following approval of an infant settlement, the plaintiffs sought clarification of an earlier endorsement regarding alternative relief requested in their motion.

The moving parties had asked, in the alternative to sealing the record, that all references to the settlement amount be redacted from the motion materials and judgment pursuant to s. 137(2) of the Courts of Justice Act.

The court confirmed that it had been aware of the request but declined to grant it.

The judge held that the parties’ agreement to keep settlement terms confidential was not sufficient to justify either sealing the file or redacting the settlement figures.

The evidentiary record did not support restricting public access to the court record.

The applicants, family members of individuals whose deaths were investigated by the Special Investigations Unit (SIU), sought a declaration that police officers involved in SIU investigations are not entitled to legal assistance in preparing their notes.

The application judge dismissed the application on grounds of standing, justiciability, and mootness.

The Court of Appeal allowed the appeal, finding the applicants had public interest standing and the issues were justiciable and not moot.

Exercising its jurisdiction to decide the substantive issues, the Court held that the Police Services Act and the SIU Regulation do not permit police officers to have a lawyer vet or assist in the preparation of their notes, though they may obtain basic legal advice regarding their rights and duties provided it does not delay note completion.

The applicants sought judicial review of an interlocutory decision by the Coroner refusing to issue a summons for the production of videos depicting interactions between correctional staff and the deceased, Ashley Smith.

The Divisional Court found that the Coroner applied an incorrect and overly stringent test by requiring a demonstrated 'nexus' between the videos and the death, rather than assessing whether the evidence was 'material' to the purposes of the inquest.

The Court quashed the Coroner's decision and remitted the issue for reconsideration, holding that the denial of access to potentially relevant evidence constituted a breach of natural justice.

During a judicial review application challenging a coroner's decision not to compel the advance production of tapes for an inquest, an issue arose regarding access to information on USB keys.

The Divisional Court ruled that there was no formal motion before the court regarding media access.

Furthermore, the court determined it did not need to access the information on the USB keys at that time, as the parties had already accessed the information and referred to it in their materials without apparent prejudice.

The applicants, who were parties to an inquest into the death of an inmate, sought judicial review of a Coroner's decision refusing to order the Correctional Service of Canada (CSC) to produce certain video recordings.

In preparation for the judicial review, the applicants served a summons on the Commissioner of the CSC, requiring him to bring the videos to an examination so they could be viewed by the Divisional Court.

The CSC brought a motion to quash the summons.

The court granted the motion and quashed the summons, finding that the videos were clearly irrelevant to the issues on judicial review, which were limited to whether the Coroner acted unfairly or exceeded her jurisdiction.

The court noted that the record already contained sufficient descriptions of the videos' contents for the purpose of the judicial review.

The families of two deceased First Nations persons and the Nishnawbe Aski Nation sought to challenge the representativeness of the jury rolls for two coroners' inquests, arguing that First Nations persons living on reserves were systematically excluded.

The presiding coroners refused to issue summonses to the director of court operations to inquire into the jury roll preparation.

The Court of Appeal held that coroners have jurisdiction by necessary implication to inquire into the representativeness of a jury roll and to remedy an unrepresentative list.

The Court found sufficient evidence to warrant the summonses, allowed the appeals, and ordered a new inquest into one of the deaths.

The respondents moved to strike or quash portions of the appellants' Notice of Appeal, specifically a request for a declaration and a ground of appeal relating to justiciability and standing.

The Court of Appeal dismissed the motion, deferring the jurisdictional issue to the panel hearing the appeal.

The appellants' cross-motion to have the appeal case-managed was granted, with costs of the motion awarded to the appellants.

The appellant and a co-accused were jointly tried for first-degree murder.

The co-accused advanced a cut-throat defence and adduced highly prejudicial bad character evidence against the appellant, including statements that the appellant had killed before.

The appellant was convicted and the co-accused was acquitted.

On appeal, the appellant argued the bad character evidence was inadmissible and the jury instructions regarding its use were inadequate.

The Court of Appeal held that the evidence was admissible but found the trial judge erred by failing to provide adequate positive and negative instructions on how the jury could use it.

However, the Court applied the curative proviso, concluding that the evidence of the appellant's participation in the murder was so overwhelming that a properly instructed jury would inevitably have convicted him.

The appeal was dismissed.

The Superintendent appealed a Divisional Court decision that set aside a Licence Appeal Tribunal order revoking the registration of a private career college.

The Divisional Court had found a reasonable apprehension of bias based on the adjudicator's statement that the self-represented principal was 'misleading the Tribunal' and her irrelevant questioning about his possible ties to a terrorist organization.

The Court of Appeal dismissed the appeal, upholding the finding of bias, rejecting the argument that the bias claim was waived, and affirming that a new hearing was the appropriate remedy despite the strength of the Superintendent's case.

The Commissioner of the Ontario Provincial Police appealed a Divisional Court decision dismissing an application for judicial review of an adjudicator's refusal to recuse himself from a police disciplinary hearing.

The Commissioner alleged the adjudicator's conduct gave rise to a reasonable apprehension of bias.

The respondents cross-appealed, arguing the adjudicator should have been named as a respondent and the Commissioner lacked standing.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the adjudicator's conduct did not meet the high threshold for a reasonable apprehension of bias and the procedural issues raised in the cross-appeal were without merit.

The applicants sought judicial review of decisions by two coroners refusing to issue a summons to a government official to testify about the composition of the jury roll in the Thunder Bay district, specifically regarding the representation of First Nations individuals.

The Divisional Court dismissed the applications, holding that coroners have no statutory authority under the Coroners Act to inquire into or remedy the process used by the sheriff to compile the jury roll under the Juries Act.

The court found no jurisdictional error or breach of natural justice in the coroners' refusals.