Kirsten Franz

The applicant challenged Ontario pandemic legislation, a municipal medical officer of health's closure order and enforcement directions, and a trespass notice issued after he deliberately reopened a restaurant for indoor dining in protest of COVID-19 restrictions.

The court held that the EMCPA, the ROA, and O. Reg. 82/20 were intra vires provincial legislation addressing local public health and economic regulation.

It found no infringement of freedom of expression, freedom of peaceful assembly, or ss. 7, 8, or 9 Charter rights, and held that any infringement would in any event be justified under s. 1.

The court also held that the medical officer of health acted within statutory authority under the HPPA and the Trespass to Property Act, and that the judicial review aspects could properly be heard together with the constitutional application.

The application for judicial review, constitutional relief, and Charter relief was dismissed.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The applicants brought a motion to enforce an interim settlement agreement with the City of Toronto regarding physical distancing standards in the city's shelter system during the COVID-19 pandemic.

The City had asserted compliance with the agreement on June 15, 2020, which would trigger the termination of the agreement.

The court found that the City breached the agreement by asserting compliance when it had not used its 'best efforts' to achieve the required physical distancing standards across all sites.

The court ordered the City to continue its pre-compliance reporting obligations until it fully met its obligations under the agreement.

The applicants brought a refusals motion to compel answers and document production from the City of Toronto and Ontario in a Charter application challenging shelter standards during the COVID-19 pandemic.

The motion sought to enforce an Interim Settlement Agreement regarding physical distancing and bed capacity in shelters.

The court granted the motion in part, finding many of the City's refusals improper regarding system-wide compliance data for the May 15-June 15, 2020 period, but upheld other refusals based on proportionality, particularly concerning the Central Intake service, daily capacity data, and information outside the specified period.

Case management endorsement setting out procedural directions for two motions for leave to appeal a decision of the Local Planning Appeals Tribunal.

The court scheduled the motions to proceed by videoconference and provided detailed instructions for the electronic filing of materials, including factums, compendiums, and authorities.

The Local Planning Appeal Tribunal (LPAT) brought a stated case to the Divisional Court asking whether parties to a first-level appeal under s. 38(1) of the Local Planning Appeal Act, 2017 have the right to cross-examine witnesses.

The majority of the Divisional Court held that the term 'examine' in s. 42(3)(b) of the Act and s. 3 of O. Reg. 102/18 includes cross-examination.

Therefore, parties are precluded from cross-examining witnesses at an oral hearing or cross-examining affiants prior to a hearing.

The Court found that the legislature intended to create an expeditious, investigative process where the Tribunal controls the evidence, expressly overriding the common law right to cross-examination.

The City of Toronto appealed a decision of the Ontario Municipal Board (now LPAT) which adjourned the hearing of appeals regarding Official Plan Amendment 258 (OPA 258) until the City enacted a Development Permit System (DPS) by-law.

The City argued the Board lacked jurisdiction to effectively order the passage of a by-law and denied the City its statutory right to a hearing under the Planning Act.

The Divisional Court dismissed the appeal, finding the Board did not order the passage of a by-law but reasonably exercised its procedural discretion to adjourn the hearing to ensure it had the necessary evidence to properly assess the planning merits of OPA 258.

The City of Toronto brought a special case motion to determine the scope of contribution and indemnity claims between Toronto Hydro-Electric Systems Ltd. and Gonte Construction Limited following a bilateral settlement between Toronto Hydro and the City.

The court addressed three questions: (1) whether Toronto Hydro's third-party claim for contribution and indemnity against Gonte in tort was limited to Gonte's several share of liability under the Negligence Act; (2) whether Gonte could claim contribution and indemnity from the City if Toronto Hydro could claim the full amount against Gonte in tort (this question was agreed upon by the parties); and (3) whether Gonte could claim common law contribution and indemnity from the City if found liable in contract.

The court ruled that Toronto Hydro's tort claim against Gonte is limited to Gonte's several share of liability, but Gonte can pursue a common law claim for contribution and indemnity from the City if found liable in contract, given the developing nature of the law in mixed contract and tort cases.

The moving party brought a motion seeking leave to appeal an order of the Ontario Municipal Board (OMB) that adjourned the hearing of an appeal from an Official Plan Amendment.

The OMB had adjourned the hearing until the municipality enacted a development permit by-law, despite acknowledging it could not order the municipality to pass such a by-law.

The court granted leave to appeal, finding that the OMB's order raised a question of law of sufficient general or public importance regarding whether the municipality is entitled under s. 17(44) of the Planning Act to have its appeal adjudicated before enacting a development permit by-law.

The appellants, operators of hookah lounges in Toronto, challenged the validity of City of Toronto By-Law 1331-2015, which prohibits the use of hookah devices in licensed premises.

The application judge upheld the by-law as a valid exercise of municipal authority to protect public health and safety.

The appellants appealed on three grounds: (1) that the by-law's true purpose was to prohibit hookah lounges rather than protect health; (2) that the by-law impermissibly infringed property and civil rights; and (3) that the by-law conflicted with the Occupational Health and Safety Act.

The Court of Appeal dismissed the appeal, finding that the by-law's purpose was clearly the protection of public health and safety, that any economic impact was incidental rather than determinative of purpose, that the by-law was not confiscatory, and that it did not conflict with provincial occupational health and safety legislation.

The appellants built an addition to their home without a building permit.

After years of litigation, the City obtained an order under the Building Code Act authorizing an inspection of the addition.

The appellants appealed, arguing that the inspection would violate the section 7 Charter rights of the elderly parents living in the home.

The Divisional Court dismissed the appeal, finding no evidence that the inspection would endanger the parents' lives and noting that the City was fulfilling its statutory duty to ensure public safety.

The respondent submitted that the court should decline to hear the appeal based on the doctrine of mootness, as it had applied for a new building permit and appealed its refusal under s. 25 of the Building Code Act.

The Divisional Court exercised its discretion to hear the matter despite the lack of a live controversy, noting that the issue was important, had broader implications, and would clarify uncertainty in the law.

The appellant tripped on a municipal sidewalk and fractured her wrist, but did not notify the City within the 10-day statutory period because she initially believed her injury was minor.

After learning her injury would cause permanent impairment, she retained counsel and provided notice four months post-accident.

The motion judge granted summary judgment dismissing the action, finding no reasonable excuse for the delay.

The Court of Appeal allowed the appeal, holding that the initial lack of awareness of the injury's severity constituted a reasonable excuse.

The Court further held that whether the City was prejudiced by the delay was a genuine issue requiring a trial, as the appellate record was insufficient to make the necessary findings of fact.

The City of Toronto sought leave to appeal a decision of the Ontario Municipal Board (OMB) which found it had jurisdiction to determine whether site plan control applied to a proposed change of use for the respondent's property.

The Chief Building Official had refused a building permit on the basis that site plan control applied.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the OMB's decision on a true question of jurisdiction, and noting the issue was of sufficient general importance.

The applicant school board appealed decisions of the City’s Chief Building Official concluding that a proposed refurbishment of school sports facilities with a private operator did not fall within a zoning by‑law exemption for land used only for teaching or instructional purposes.

The proposal would allow a private company to operate the facilities commercially for the majority of the time.

The court held that while incidental non‑school uses of school facilities may fall within the exemption, intensive commercial exploitation does not.

Given the scale and commercial nature of the proposed use, the project did not qualify for the exemption and required a zoning variance through the municipal planning process.

The moving party municipality sought leave to appeal an Ontario Municipal Board (OMB) decision that ordered the return of $397,941 in disputed development charges to the respondent developer.

The developer had paid the development charges for two condominium towers based on the municipality's calculations before the building permits were issued, but the municipality later demanded additional charges for the second tower due to a phased rate increase.

The Divisional Court dismissed the motion for leave to appeal, finding that the OMB's interpretation of the Development Charges Bylaw was reasonable and not open to substantial doubt, and that the case did not raise a point of law of sufficient general importance to warrant the court's attention.

The applicants sought judicial review to quash a decision by the City's General Manager of Parks, Forestry and Recreation to close an off-leash dog area in Ledbury Park.

The General Manager closed the area due to unresolved conflicts between park users and adjacent residents.

The Divisional Court dismissed the application, finding that the decision was reasonable and that the General Manager appropriately balanced competing community interests.

The court also held that the applicants were accorded adequate procedural fairness given the policy nature of the decision.

The appellant appealed the dismissal of his application for an order compelling the City of Toronto to issue a building permit for a restaurant exceeding the size permitted by the applicable by-law.

The appellant argued he had a legal non-conforming use because his restaurant exceeded the size limit before it was destroyed by fire, and he challenged the validity of several by-laws for lack of notice.

The Court of Appeal upheld the application judge's findings that the appellant lost any legal non-conforming use when he previously reduced the restaurant's size to comply with the by-law to obtain a liquor license, and that the City had complied with the notice requirements for the by-laws.

The appeal was dismissed.

The complainant and the Commission brought a Request for Order During Proceedings to add further officers as personal respondents.

Following discussions, the Chief of Police undertook to accept liability in the event any liability is found against the named or proposed officers.

Consequently, the parties agreed to withdraw the request, remove all named individual respondents, and add the Chief of Police as a respondent.

The Tribunal ordered the style of cause amended accordingly.

The respondents brought a motion to dismiss or limit a human rights complaint alleging racial profiling and assault by police officers, arguing that the complainant's prior unsuccessful civil action for assault and battery precluded relitigation of the facts.

The Tribunal applied the doctrine of abuse of process, holding that the complainant could not lead evidence conflicting with the civil court's factual findings that the alleged assaults did not occur.

However, the Tribunal found that the civil court had not decided whether race was a factor in the arrest or charges, and allowed those allegations, as well as allegations regarding the initial vehicle stop, to proceed.