Kim Twohig

The plaintiffs, nurses who contracted SARS during the 2003 outbreak, sued Ontario for negligence and breach of section 7 of the Charter.

Ontario moved to strike the claim, arguing it owed no private law duty of care to the nurses.

The motion judge struck parts of the claim but allowed the action to proceed.

On appeal, the Court of Appeal struck the entire claim, holding that Ontario's duty to protect the public from communicable diseases does not create a private law duty of care to individual healthcare workers.

The Court also found no basis for the section 7 Charter claim, as the government's actions were not arbitrary.

The plaintiffs sued Ontario for damages suffered as a result of contracting SARS during the 2003 outbreak, alleging negligence, breach of statutory duty, conflict of interest, and breach of section 7 of the Charter.

Ontario moved to strike the statement of claim.

The motion judge struck parts of the claim but allowed the negligence, conflict of interest, and Charter claims to proceed.

On appeal, the Court of Appeal held that it was plain and obvious the allegations did not give rise to a private law duty of care or a viable Charter claim.

The appeal was allowed and the statement of claim was struck in its entirety.

The Human Rights Tribunal of Ontario issued an interim decision regarding two consolidated complaints involving the complainant, the Ontario Human Rights Commission, and the respondents.

The decision addressed whether prior procedural rulings by the Tribunal Chair precluded the complainant from advancing certain issues, including adding the Commission and its Legal Director as respondents, alleging abuse of process, and requesting that her original complaint be heard due to an alleged breach of settlement.

The Adjudicator found that the prior decisions were not final determinations on these substantive issues, as they primarily dealt with procedural matters or were made when the complainant was not yet a party.

Consequently, the complainant was permitted to proceed with her requests, and a schedule for further submissions was established.

The applicant union sought judicial review of a decision by the Local Health Integration Network (LHIN) to approve a Service Accountability Agreement with a hospital, which included a plan to consolidate mental health services to eliminate a budget deficit.

The applicant argued the LHIN failed to engage in required public consultation.

The Divisional Court dismissed the application, finding that the LHIN's funding decision did not constitute an 'integration decision' under the Local Health System Integration Act that would trigger statutory consultation requirements.

The court also found no breach of procedural fairness or legitimate expectations.

In an interim decision regarding consolidated human rights complaints, the Tribunal identified the remaining procedural and substantive issues in dispute, including allegations of bias against a previous adjudicator, abuse of process by the Commission, and requests for production.

The Tribunal directed the parties to prepare submissions on whether the previous adjudicator's decisions finally determined certain issues and scheduled further hearing dates to address these preliminary matters.

The Ministry of the Attorney General sought judicial review of two orders by the Information and Privacy Commissioner requiring the disclosure of total dollar figures for legal services rendered to other ministries.

The Ministry argued the information was protected by solicitor-client privilege under s. 19 of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the applications, finding the IPC correctly applied the rebuttable presumption of privilege test from Maranda v. Richer and reasonably concluded the presumption was rebutted because disclosing the aggregate amounts would not reveal privileged communications.

The appellant ministry appealed a lower court order dismissing its applications for judicial review of two orders by the commissioner.

The commissioner had ordered the disclosure of records relating to funding applications, finding they did not fall under the 'advice or recommendations' exemption in s. 13(1) of the Freedom of Information and Protection of Privacy Act.

The appellate court held that the standard of review for the commissioner's interpretation of s. 13(1) is reasonableness, and found the commissioner's interpretation and application to the records to be reasonable.

The appeal was dismissed.

The Ministry of Northern Development and Mines sought judicial review of two orders by the Information and Privacy Commissioner requiring the disclosure of project evaluation reports.

The Ministry argued that the Commissioner misinterpreted the 'advice or recommendations' exemption under section 13(1) of the Freedom of Information and Protection of Privacy Act.

The Divisional Court applied a reasonableness standard of review, finding that the Commissioner's interpretation—that 'advice' and 'recommendations' have similar meanings and require a suggested course of action—was reasonable.

The applications for judicial review were dismissed.

The appellant appealed a summary judgment dismissing his action for malicious prosecution against a Crown Attorney.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that there was no evidence of malice.

The court noted that the Crown Attorney chose not to call an unsavoury witness to prevent a wrongful conviction, which demonstrated an absence of malice, and that malice could not be inferred merely from a possible absence of reasonable and probable grounds.

The Township of Dymond brought an application for judicial review to set aside a municipal restructuring order made by the Minister of Municipal Affairs and Housing that amalgamated it with two other towns.

The applicant argued that the Minister lacked jurisdiction under the former Municipal Act, breached natural justice by not holding a hearing, and violated the spirit of the legislation.

The Divisional Court dismissed the application, finding that the statutory pre-conditions for the 'double majority' rule were met, rights had accrued before the new Act came into force, and there was no requirement for a hearing before the Minister issued the order.

The appellant appealed an order granting summary judgment and dismissing the claim against the respondents.

The Court of Appeal agreed with the motion judge's analysis that there was no genuine issue for trial on the question of malice.

The appeal was dismissed.

The Commissioner of the Ontario Provincial Police appealed a disciplinary sanction imposed on a constable by a delegated Hearing Officer.

The respondent constable brought a preliminary motion arguing the Commission lacked jurisdiction to hear the appeal because the Commissioner is not a 'complainant' under section 70 of the Police Services Act.

The Commission agreed, finding that interpreting the Commissioner as a complainant would lead to absurdities within the statutory scheme.

The motion to strike the appeal was granted.

The Commissioner of the Ontario Provincial Police applied for judicial review to quash a penalty imposed on a police officer by a retired superintendent following a disciplinary hearing.

The Commissioner argued that while the superintendent had delegated authority to conduct the hearing, he lacked jurisdiction to impose the penalty.

The Divisional Court dismissed the application, finding that the Police Services Act contemplates the person conducting the hearing also imposing the penalty.

Furthermore, the court exercised its discretion to refuse judicial review because the Commissioner had fully participated in the penalty hearing and invited the superintendent to exercise the very jurisdiction she later challenged.

The respondent, a police officer, was forced to retire at age 60 pursuant to a mandatory retirement policy in the collective agreement.

He filed a human rights complaint alleging age discrimination.

The Board of Inquiry found the policy was not a bona fide occupational requirement (BFOR) because the employer lacked a sincerely held belief in its necessity at the time of adoption, and because individual accommodation was possible.

The Divisional Court and Court of Appeal upheld this decision.

The Supreme Court of Canada allowed the appeal, holding that the subjective element of the BFOR test can be satisfied where a policy is adopted in good faith through collective bargaining without ulterior motives.

The Court also held that the objective element does not require individual accommodation where a general rule is reasonably necessary and individual testing is impractical.

The mandatory retirement policy was justified as a BFOR.

The complainants applied to be firefighters with the City of Ottawa but were rejected because they did not meet the uncorrected visual acuity standard of 20/20 in each eye.

They filed human rights complaints alleging discrimination based on handicap.

The Board of Inquiry dismissed the complaints, finding that the complainants' impaired visual acuity did not constitute a 'handicap' under s. 9(b)(i) of the Human Rights Code because there was no evidence it was caused by bodily injury, illness, or birth defect.

Following a finding that the City of Stratford violated the Ontario Human Rights Code by mandatorily retiring the complainant police officer at age 60, the Board of Inquiry determined the appropriate remedy.

The Board declined to award damages for mental anguish, finding the complainant's depression was caused by retirement itself rather than its unlawful timing.

The Board rejected the respondents' arguments that damages should be reduced for failure to mitigate or for delay in the adjudication process.

The complainant was awarded $136,958 for past loss of employment income and $54,117 for loss of future pension income, along with prejudgment interest of $101,607.

The complainant, a teacher at a private Christian school, was dismissed after the school learned she was living in a common-law relationship.

She filed a human rights complaint alleging discrimination based on marital status.

The Board of Inquiry found that while her dismissal constituted prima facie discrimination based on marital status, the school was protected by the bona fide occupational qualification exception for religious organizations under s. 23(a) of the Human Rights Code.

The school established that its requirement for teachers to adhere to Christian moral precepts, including not living in a common-law relationship, was a reasonable and bona fide qualification given the nature of the employment.

The complaint was dismissed.

The complainant, a police officer, alleged age discrimination after being mandatorily retired at age 60.

The respondents conceded a prima facie violation of the Ontario Human Rights Code but argued the policy was a bona fide occupational qualification (BFOQ).

Applying the Supreme Court's Etobicoke test, the Board of Inquiry found the respondents failed to establish both the subjective and objective elements of a BFOQ.

Subjectively, there was insufficient evidence that the policy was adopted with a sincerely held belief in its necessity for adequate job performance.

Objectively, while acknowledging age-related declines in aerobic capacity and increased cardiovascular risk, the Board concluded these factors did not render the age 60 limit reasonably necessary, as the essential duties of police work rarely require sustained aerobic limits and reasonable accommodation was possible.

The mandatory retirement policy was held to violate the Code.

Following a remand from the Divisional Court to determine the monetary sum, if any, owed to the complainant for direct discrimination, the Board of Inquiry issued an interim award.

The Ontario Human Rights Commission subsequently acknowledged that, based on the interim award, no monies were owing to the complainant and agreed that convening a hearing would be wasteful.

The respondents concurred, and the complainant did not comment.

Consequently, the Board of Inquiry dismissed the complaints.

The Ontario Board of Inquiry issued an interim decision regarding the calculation of damages for a police officer who was discriminated against because of her sex when she was removed from her duties due to pregnancy.

The Ontario Human Rights Commission argued that the complainant should be compensated for all available clerk-typist shifts during her leave.

The respondents brought an application to clarify the scope of damages.

The Board ruled that the original award, which was affirmed by the Divisional Court, limited compensation strictly to available overtime clerk-typist shifts, and did not include regular alternative shift work.