Kathryn Hucal

The Court of Appeal for Ontario allowed the appeal of the Attorney General of Canada, setting aside the conditional certification of a class action brought by Andrew Knisley, a veteran, regarding the administration of disability benefits by Veterans Affairs Canada.

The court found that conditional certification is not permitted under the Class Proceedings Act, 1992, and remitted the matter for reconsideration of whether an identifiable class exists.

The court also upheld the motion judge’s finding that the claim in negligence disclosed a reasonable cause of action.

The Canadian Union of Postal Workers (CUPW) challenged the constitutionality of the Postal Services Resumption and Continuation Act (PSRCA), SC 2018, c 25, arguing it infringed freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms.

The legislation ended a series of rotating strikes and imposed a mediation-arbitration process.

The court found the application moot because the PSRCA was spent legislation, having led to new collective agreements, and there was no live controversy or suitable remedy.

However, in obiter, the court stated that if the matter were not moot, the PSRCA would infringe s. 2(d) but would be justified under s. 1 of the Charter, as it constituted a minimal impairment due to its fair and neutral dispute resolution mechanism, unlike previous unconstitutional back-to-work legislation.

The plaintiff sought certification of a class action against the Attorney General of Canada on behalf of veterans who experienced delays in the processing of disability benefits.

The court applied the five-part test under s. 5(1) of the Class Proceedings Act.

The court struck the claims for breach of s. 7 of the Charter, breach of fiduciary duty, breach of contract, and negligent misrepresentation, finding it plain and obvious they could not succeed.

However, the court found the negligence claim disclosed a reasonable cause of action.

The court certified the class action for the negligence claim, conditional on the plaintiff amending the class definition.

The applicants challenged the constitutionality of the Canadian prison needle exchange program (PNEP), specifically its "threat risk assessment" (TRA) feature, arguing it violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms by denying effective access to essential health care.

The court dismissed the application, finding it premature due to the ongoing PNEP rollout and evolving design.

Furthermore, the applicants failed to establish that professionally accepted standards required a health services-centered model without security staff involvement, or that the PNEP/TRA model breached Charter rights by being arbitrary, overbroad, or grossly disproportionate, or by discriminating on enumerated grounds.

The Attorney General of Canada sought a second extension of the suspension of a declaration of invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The application judge had found these provisions infringed section 7 of the Canadian Charter of Rights and Freedoms due to the absence of meaningful independent review within five working days of administrative segregation placement.

The court granted a conditional extension to June 17, 2019, requiring implementation of an independent fifth-day review of administrative segregation decisions, rather than the unconditional extension to November 30, 2019 that the Crown sought.

The Canadian Civil Liberties Association challenged the constitutionality of sections 31-37 of the Corrections and Conditional Release Act, which authorize administrative segregation (solitary confinement) in federal penitentiaries.

The applicant sought declarations that these provisions violate sections 7, 11(h), and 12 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that prolonged administrative segregation (more than 15 consecutive days) violates section 12 of the Charter as cruel and unusual treatment and cannot be justified under section 1.

The court rejected arguments regarding inmates aged 18-21 and those with mental illness due to insufficient evidence, and dismissed the section 11(h) claim.

The court declared sections 31-37 of no force and effect to the extent they authorize prolonged administrative segregation.

The Court of Appeal for Ontario considered a motion by the Attorney General of Canada to extend the suspension of a declaration of constitutional invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The lower court had found that the "fifth working day review" for administrative segregation violated section 7 of the Canadian Charter of Rights and Freedoms due to the lack of meaningful independent review.

The respondent sought an extension to allow Parliament to enact Bill C-83, which would replace administrative segregation with "structured intervention units." The court granted the extension to April 30, 2019, finding that immediate effect would pose unacceptable danger to correctional personnel and inmates, despite expressing concern about Canada's delay in addressing the constitutional infirmity and the absence of interim measures or adequate explanation of how the proposed legislation would remedy the breach.

The respondents in a Charter application brought a refusals motion seeking to compel three expert witnesses retained by the applicants to re-attend cross-examinations and produce draft affidavits and notes of communications with counsel.

The respondents argued that counsel's assistance in drafting the experts' affidavits raised reasonable grounds to question their independence, thereby waiving litigation privilege.

The court applied the principles from Moore v. Getahun and White Burgess, finding that consultation between counsel and experts is a necessary part of the adversarial process.

The court dismissed the motion, concluding there was no factual foundation to support a reasonable suspicion that counsel improperly influenced the experts.

The applicant, a civil liberties organization, brought a public interest challenge against the administrative segregation provisions (sections 31-37) of the Corrections and Conditional Release Act, arguing they violated sections 7, 11(h), and 12 of the Charter.

The court found that the applicant had standing to seek a declaration of invalidity under section 52(1) but not a personal remedy under section 24(1).

The court held that the legislative scheme violated section 7 of the Charter because it failed to provide an independent review of the institutional head's decision to maintain an inmate in administrative segregation, which breached the principles of fundamental justice (procedural fairness) and was not saved by section 1.

The court dismissed the claims under section 11(h) and section 12, finding that segregation is not a punishment and that the scheme, if properly applied with consideration for inmates' mental health, does not constitute cruel and unusual treatment.

The court declared the provisions unconstitutional to the extent they authorize segregation beyond five working days without independent review, but suspended the declaration for 12 months.

Following a successful constitutional challenge to back-to-work legislation, the applicants sought costs against the intervener, the employer.

The intervener sought costs against the applicants for a subsequent unsuccessful remedial motion.

The court analyzed the general rule that interveners are neither liable for nor entitled to costs, and the exceptions based on the intervener's direct private interest and level of participation.

The court found the intervener had a direct private interest in both proceedings.

The court ordered the intervener to pay $54,000 in costs for the main application, and ordered the applicants to pay $26,000 to the intervener for the remedial motion.

The Supreme Court allowed the appeal and quashed a ministerial referral for an admissibility hearing under s. 36(1)(a) of the Immigration and Refugee Protection Act.

It held that a conditional sentence is not a 'term of imprisonment' for the serious criminality threshold based on an imposed sentence.

It also held that the 'maximum term of imprisonment of at least 10 years' must be assessed based on the law at the time the offence was committed, not at the time of the admissibility determination.

The matter was remitted to a different delegate for redetermination on a correct legal interpretation.

The Crown sought an adjournment of a constitutional challenge brought by the Canadian Civil Liberties Association (CCLA) against administrative segregation provisions in the Corrections and Conditional Release Act.

The Crown argued for deference to Parliament due to pending legislative amendments (Bill C-56) and a new administrative policy.

The CCLA opposed the adjournment.

The court refused the adjournment, finding that the CCLA's constitutional challenge addressed aspects of the existing Act that would remain unaltered by the proposed amendments, thus rendering the adjournment unnecessary and not a matter of disrespect to the legislative process.

Following a judgment that retroactively struck down the Restoring Mail Delivery for Canadians Act (Bill C-6), the applicants sought further declaratory relief under s. 24(1) of the Charter.

They argued that the collective agreement, which had been extended by s. 6 of the invalidated Act, should remain enforceable despite the Act's retroactive invalidity.

The court was asked to determine if this was a "remaining remedial issue" under a prior consent agreement, and if it had jurisdiction to grant such relief.

The court found that the applicants' request was not a "remaining remedial issue" as defined by the consent agreement, which was limited to s. 52(1) declarations and s. 24(1) monetary damages.

The court also determined it lacked jurisdiction to alter its final judgment by granting a new constitutional remedy, emphasizing the principle of finality in judicial decision-making.

The issue of the collective agreement's enforceability was deemed properly before the Québec Superior Court.

The applicant union challenged the constitutionality of the Restoring Mail Delivery for Canadians Act, back-to-work legislation enacted in response to rotating strikes and a nationwide lockout.

The Act mandated the resumption of mail delivery, extended the previous collective agreement, prohibited strike activity, and imposed a final offer selection arbitration process.

The court found that the Act violated the guarantee of freedom of association under s. 2(d) of the Charter by substantially interfering with a meaningful process of collective bargaining.

The court also found that the Act violated freedom of expression under s. 2(b) by prohibiting strike activity, which conveys meaning.

Neither violation was justified under s. 1 of the Charter.

The court declared the Act unconstitutional and of no force or effect retroactively.

During the hearing of an application, the intervener provided a chart that was not entered into evidence.

The court indicated that a further chart could be jointly submitted post-hearing only if all parties agreed to its contents.

As the parties were unable to agree, the court ruled that no further charts, including one submitted by the applicants, would be accepted for filing.

The appellant challenged the refusal of humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act after unsuccessful refugee and risk-assessment proceedings.

The majority held that the officer unreasonably constrained discretion by treating 'unusual and undeserved or disproportionate hardship' as rigid legal thresholds rather than descriptive guidance.

The reasons emphasized holistic assessment, including mental health evidence, discrimination risk evidence, and the best interests of a directly affected child.

The appeal was allowed, the officer’s decision was set aside, and the matter was remitted for reconsideration.

A dissent would have upheld the refusal as reasonable under a stringent but flexible exceptional-relief framework.

The applicant unions brought an application seeking a declaration that the Expenditure Restraint Act is unconstitutional and of no force and effect, arguing it violated their members' freedom of association under s. 2(d) of the Charter by rolling back and capping wage increases.

The Superior Court of Justice dismissed the application, finding that the legislation did not substantially interfere with the freedom of association, as it applied broadly across the federal public sector and did not target associational activities.

The court further held that even if there was a breach of s. 2(d), it would be saved under s. 1 of the Charter as a demonstrably justified response to the 2008 global economic crisis.