Kartiga Thavaraj

Application and cross-application concerning a municipal site-specific by-law aimed at clearing a longstanding homeless encampment to facilitate a transit hub project.

The court held that the by-law infringed s. 7 because closing the only lawful sheltering site of last resort in a region with grossly insufficient accessible indoor shelter exposed chronically homeless persons to serious risks to life, liberty, and security of the person in a manner grossly disproportionate to the by-law’s objective.

The court further held that the by-law infringed s. 15 by disproportionately burdening homeless persons who were women, gender-diverse, disabled, and Indigenous, and also recognized homelessness itself as an analogous ground under s. 15.

The infringements were not saved under s. 1, the bad-faith challenge under s. 273 of the Municipal Act failed, and the court declared the by-laws of no force and effect, restrained enforcement, and retained jurisdiction for further directions if a lawful alternative tenting protocol or site is implemented.

The applicants brought a constitutional application challenging PIPEDA provisions permitting voluntary disclosure of subscriber information to government institutions without prior judicial authorization and related veto provisions limiting disclosure to affected individuals.

They alleged infringements of Charter ss. 8, 7, and 2(b), arguing the scheme lacked oversight, accountability, and transparency.

The court held it was bound by appellate authority that PIPEDA does not itself confer search or seizure powers, so s. 8 was not engaged on this record, and further held the s. 7 claim was a repackaging of the s. 8 arguments.

The court also found no s. 2(b) breach because the veto provisions are discretionary, incorporate balancing, and did not substantially impede meaningful public discussion.

The Regional Municipality of Waterloo sought a declaration that its Site-Specific By-Law Number 25-021 regulating 100 Victoria Street North in Kitchener complies with the Canadian Charter of Rights and Freedoms.

The by-law prohibits temporary structures and sheltering on the property, with a December 1, 2025 deadline for vacant possession to facilitate construction of the Kitchener Central Transit Hub.

Persons Unknown and to be Ascertained, chronically homeless individuals sheltering at the encampment, sought an interlocutory injunction restraining enforcement of the by-law pending determination of their Charter claims.

The court granted the injunction, finding serious issues to be tried regarding violations of section 7 Charter rights (life, liberty, and security of the person) and potential illegality under the Municipal Act, 2001, irreparable harm to vulnerable homeless persons, and balance of convenience favoring the injunction.

Antibe Therapeutics Inc. (Antibe) commenced CCAA proceedings seeking a stay extension, while Nuance Pharma Ltd. (Nuance), Antibe's largest creditor, sought termination of the CCAA and appointment of a receiver, along with a declaration of constructive trust over funds.

The court found Antibe's CCAA application to be a defensive tactic with no realistic restructuring plan.

Given the unique circumstances, including Antibe's core business (a drug) being far from commercialization and the arbitral finding of Antibe's deliberate misrepresentation, the court terminated the CCAA proceeding and appointed a receiver over Antibe's property.

The court declined to rule on Nuance's trust claim at this stage.

The applicant, a francophone physician, sought judicial review of an interim decision by the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The Committee had denied his request for a disciplinary hearing before a bilingual panel, concluding that the use of interpreters was sufficient and constituted a reasonable limit under the Health Professions Procedural Code.

The Divisional Court granted the application, holding that the standard of correctness applied to the interpretation of language rights.

The Court found that the applicant has a presumptive right to a bilingual panel under section 86(1) of the Code.

The Court further held that the Committee's conclusion that interpreters were a reasonable limit under section 86(4) was unreasonable because it failed to consider the specific circumstances of the case.

The matter of reasonable limits was remitted to the Committee.

The proposed interveners brought a motion for leave to intervene as amicus curiae in a judicial review application.

The underlying application concerns the applicant's right to a disciplinary hearing in French before the College of Physicians and Surgeons of Ontario.

The court granted the motion, finding that the interveners could make a useful contribution regarding the application of the French Language Services Act, and that any prejudice to the respondent could be mitigated by allowing a responding factum.

Schindler Elevator Corporation brought an action to perfect a construction lien for unpaid services and materials supplied for the installation of elevators at the Women's College Hospital redevelopment project.

The general contractor, Walsh Construction/Bondfield Partnership (WBP), counterclaimed for delay impact losses, liquidated damages, and indemnification for penalties, alleging Schindler's delayed performance critically impacted the project schedule.

The court found that while Schindler breached the subcontract by delayed performance, WBP failed to prove that Schindler's delays impacted the critical path of the project or caused the majority of the claimed damages.

Schindler was awarded judgment for the unpaid subcontract balance, less minor set-offs for direct impacts, and WBP's claims against Schindler and its surety, Zurich, were dismissed.

In a pre-trial motion regarding the admissibility of trial affidavit evidence, the moving party sought to strike the entirety of an affidavit.

The moving party argued the affidavit contained inadmissible, irrelevant, and opinion evidence without proper foundation.

The Master found that while the affiant had personal knowledge of certain communications, substantial portions of the affidavit lacked foundational knowledge or contained improper legal interpretation and argument.

The Master ordered specific paragraphs struck but admitted the remainder of the affidavit.

This decision addresses pre-trial motions brought by both Schindler Elevator Corporation and Walsh Construction Company of Canada, Bondfield Construction Company Limited, and Walsh Construction/Bondfield Partnership (collectively, WBP) concerning the admissibility of substantial affidavit evidence-in-chief tendered for trial.

Both parties raised numerous objections to statements in each other's affidavits, primarily on grounds of unqualified opinion, argument, legal conclusions, hearsay, speculation, and witness competency.

The Master ruled on these objections, striking various paragraphs or portions thereof and admitting others subject to weight, emphasizing that trial evidence must strictly comply with the rules of evidence, unlike evidence on motions or applications.

This supplementary endorsement addresses a dispute over compliance with a previous court order for the production of minutes of settlement.

Schindler Elevator Corporation argued that the defendants (WBP) had excessively redacted the minutes beyond what was permitted, specifically regarding references to items in an exhibit.

The court found that WBP's additional redactions were not justified and went beyond the original order.

It was determined that knowing the specific items to which settlement compensation was allocated was crucial for Schindler to prepare for trial and assess potential double-recovery.

The court ordered WBP to produce a further version of the minutes of settlement, removing the impugned redactions while maintaining the confidentiality of specific settlement and allocation amounts.

The plaintiff, Schindler Elevator Corporation, moved for the production of fully unredacted minutes of settlement between the defendants (WBP) and a third party (Yuanda).

WBP had produced a partially redacted version, claiming settlement privilege over the financial terms.

The court found that while the specific settlement amounts should remain privileged, other redacted information relevant to the apportionment of delay and quantification of damages must be disclosed to ensure procedural fairness at the upcoming trial.

The court ordered WBP to produce a further version of the minutes with only the specific settlement amounts and payment dates redacted.