Kevin Andrew McGivney

Following a successful motion by the plaintiffs for non-party production of investigative materials from the Special Investigations Unit under Rule 30.10 of the Rules of Civil Procedure, the court addressed costs.

Although the plaintiffs obtained the production order, the court declined to award costs.

The court held that the SIU reasonably opposed the motion given its public policy mandate, confidentiality assurances to witnesses, and status as a non-party to the litigation.

The evidence and submissions from the SIU assisted the court in determining whether the exceptional remedy of non-party production should be granted.

The defendants brought a motion for summary judgment dismissing a civil claim alleging negligent police investigation and failure to test the contents of a needle that punctured the plaintiff while she was working at a women’s shelter.

The plaintiff alleged the police negligently failed to lay criminal charges and failed to arrange testing of the needle’s blood contents, causing prolonged anxiety about possible infection with communicable diseases.

The court held there was no genuine issue requiring a trial and applied the summary judgment framework articulated in Hryniak v. Mauldin.

The evidence demonstrated the police had consulted Crown attorneys who advised there were no reasonable grounds to prosecute, and the police had no authority under the Mandatory Blood Testing Act, 2006 to compel testing.

Any failure to obtain testing was attributable to the plaintiff’s own inaction rather than negligence by the defendants.

The applicant filed a police misconduct complaint arising from a stop and search during the G20 summit.

The OIPRD investigated and directed the Chief of Police to hold a disciplinary hearing.

Because more than six months had passed, the Chief applied to the Police Services Board for an extension of time.

The Board denied the extension without notifying the applicant, allowing him to make submissions, or providing reasons for its decision.

On judicial review, the Divisional Court quashed the Board's decision, holding that the Board breached its duty of procedural fairness by failing to provide the applicant with notice, an opportunity to be heard, and reasons for its decision.

The defendants brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike a statement of claim alleging negligence, breach of s. 7 of the Canadian Charter of Rights and Freedoms, and misfeasance in public office arising from a drive‑by shooting committed by a third party.

The plaintiffs alleged that police had prior intelligence about the shooter and owed a private law duty of care to protect a narrow class of potential victims.

The court held that the pleadings did not establish a special relationship of proximity between the police and the victim sufficient to create a private law duty of care, distinguishing the case from Doe v. Metropolitan Toronto Commissioners of Police.

The Charter claim failed because the Charter does not impose a positive obligation on police to prevent harm, and the pleadings did not establish the elements of misfeasance in public office.

The Fresh as Amended Statement of Claim was struck with leave to amend.

Following the dismissal of a motion to certify a class proceeding related to policing during the G20 Summit, the court determined the costs payable to a successful defendant.

The plaintiff argued that no costs should be ordered because the case raised novel legal issues and matters of public interest.

The court held that although the action involved issues of public interest, the certification motion was seriously flawed and the novelty argument was unfounded.

Applying the governing principles for class proceeding costs and considering comparable certification cost awards, the court concluded that a reduced costs award was appropriate.

Costs were fixed at $200,000 in fees plus disbursements and applicable taxes, payable by the plaintiff and indemnified by the Class Proceedings Fund.

The plaintiff sought to certify a class action against multiple police services and government entities regarding mass arrests and detentions during the 2010 G20 Summit in Toronto.

The court dismissed the certification motion, finding that while some causes of action (like false imprisonment and battery) were properly pleaded against the Toronto Police Services Board, the claims against other defendants failed.

Crucially, the plaintiff failed to satisfy the identifiable class, common issues, and preferable procedure requirements of the Class Proceedings Act due to the highly variable individual conduct of protesters and the impermissible use of subclasses.

The applicant filed an Application for Contravention of Settlement alleging the respondents failed to comply with a previous Tribunal order to pay $1,000.

The Tribunal found that the issue of the breach of settlement had already been finally determined in the previous decision, rendering the Tribunal functus officio.

The Tribunal further noted that enforcement of its orders must be pursued through the Superior Court of Justice pursuant to section 19 of the Statutory Powers Procedure Act.

The application was dismissed for lack of jurisdiction.

The applicant, who alleged discrimination on the basis of race by police officers during a traffic stop, sought disclosure of records of prior race-based complaints against the respondent officers.

The Tribunal reviewed five responsive records produced by the police service.

Applying the test for similar fact evidence, the Tribunal ordered the disclosure of two records that were temporally proximate or involved similar allegations, subject to strict confidentiality conditions.

The Tribunal declined to order disclosure of three older, unsubstantiated complaints that lacked sufficient similarity to the allegations in the application, finding their prejudicial effect outweighed any limited probative value.

The appellants, a police officer and the Chief of Police, appealed a Divisional Court decision upholding a Human Rights Tribunal of Ontario finding that the officer discriminated against a Black mail carrier.

The officer stopped and questioned the mail carrier while on patrol in an affluent neighbourhood.

The Court of Appeal dismissed the appeal, finding that the Tribunal reasonably applied the prima facie test for discrimination, correctly placed the onus on the complainant, and properly considered the unique statutory duties of police officers.

The applicant filed an application alleging the respondents contravened Minutes of Settlement by failing to pay $1,000 within the agreed four-week period.

The respondents missed the deadline by approximately one week due to their counsel's unexpected medical leave, but promptly offered to deliver the funds upon realizing the error.

The applicant refused the funds and sought to have the settlement rescinded.

The Tribunal found the delay was a trivial breach caused by inadvertence that resulted in no significant harm to the applicant.

The Tribunal declined to rescind the settlement and ordered the respondents to pay the original $1,000 settlement amount.

The Divisional Court heard three applications for judicial review of decisions by the Human Rights Tribunal of Ontario.

The Tribunal had found that a Toronto police officer discriminated against a Black mail carrier on the basis of race when he stopped and questioned him in an affluent neighbourhood.

The Tribunal also found the Toronto Police Services Board jointly and severally liable for the officer's conduct and awarded $10,000 in damages.

The officers and the Board sought judicial review of the liability and remedy decisions, while the complainant sought increased damages and systemic remedies.

The majority of the Divisional Court dismissed all three applications, finding that the Tribunal's conclusion that race was a factor in the stop was reasonable and supported by the evidence.

The Court also upheld the finding that the Board was liable as the officer's employer under the Human Rights Code.

A dissenting judge would have set aside the liability decision, finding the Tribunal's analysis fundamentally flawed.

The applicant police officers sought judicial review of two interlocutory decisions of the Human Rights Tribunal of Ontario ordering the production of records concerning prior complaints against them.

The Divisional Court quashed the application for prematurity, finding no exceptional or extraordinary circumstances to justify fragmenting the administrative proceedings before the Tribunal.

The applicant, a Black mail delivery person, was previously found to have been racially discriminated against by a Toronto police officer who stopped and questioned him without cause.

In this remedy decision, the Tribunal determined that the Toronto Police Services Board is jointly liable with the Chief of Police for the discriminatory actions of the officer under the Human Rights Code, despite the Board's argument that it only serves a policy function.

The Tribunal awarded the applicant $10,000 in monetary compensation for injury to his dignity, feelings, and self-respect.

The Chief of Police and respondent officers sought to vary a previous Tribunal order requiring the production of documents related to previous race-based complaints against the officers, proposing to redact complainant identities.

They also sought a stay of proceedings pending judicial review.

The Tribunal declined to vary the order, finding the proposed redaction and contact method inappropriate and unnecessary.

The Tribunal also denied the stay, finding no exceptional circumstances and that the balance of convenience did not favour a stay, as delaying production would prejudice the complainant and the Commission.

In an interim decision regarding a human rights complaint alleging racial profiling and assault by police officers, the Tribunal reviewed records of past complaints against the respondent officers to determine if they should be produced.

The Tribunal ordered the production of a 2001 complaint alleging a racially motivated assault at the same police division, finding its probative value outweighed potential prejudice.

A 2007 complaint lacking similarity was withheld.

The Tribunal declined to redact personal identifiers from the produced records but imposed conditions restricting their use to the current proceeding or any subsequent judicial review.

The moving parties sought a stay of an interim Tribunal decision ordering the production of police discipline records pending their application for judicial review.

The Tribunal applied the traditional three-part test for a stay, considering it in the context of the revised Human Rights Code, which emphasizes expeditious resolution and limits judicial review of procedural rulings.

The Tribunal found that producing the records to the adjudicator would not cause irreparable harm and that the balance of convenience strongly favoured proceeding without delay.

The request for a stay was denied, though a brief extension was granted to allow the moving parties to seek a stay from the Divisional Court.

The complainant filed human rights complaints against the Toronto Police Services Board, the Chief of Police, and the Toronto Transit Commission.

In this interim decision, the Tribunal addressed three preliminary issues.

First, the Toronto Police Association was granted limited intervenor status to address production requests.

Second, the Tribunal dismissed the respondents' argument that the Ontario Human Rights Commission was not a party as of right, finding that the statutory requirements under the transition provisions of the Human Rights Code were met.

Third, regarding the production of records governed by the Youth Criminal Justice Act, the Tribunal directed the parties to address the issue at the resumed Initial Conference Call.

The Ontario Human Rights Commission requested the production of various documents from the respondents prior to filing its hearing brief.

The Human Rights Tribunal of Ontario denied the request, citing its previous decision in Washington v. Toronto Police Services Board.

The parties were directed to file their hearing briefs and provide disclosure in accordance with the Rules.

The appellants appealed a jury verdict finding them liable for damages arising from an incident involving allegations of dangerous driving and 'gay bashing'.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's jury instructions on reasonable and probable grounds, no unreasonableness in the damages award for income loss, and no error in the award of substantial indemnity costs due to late disclosure and the jury's acceptance of the 'gay bashing' element.

A cross-appeal regarding aggravated damages was also dismissed.

The appellants appealed an order striking out their statement of claim without leave to amend.

The claim alleged conspiracy to injure and abuse of process by the police and government defendants in relation to an investigation targeting the adult entertainment industry.

The Court of Appeal allowed the appeal, finding the motion judge took an overly technical approach and that the material facts pleaded were reasonably capable of supporting the causes of action.