Larissa C. Moscu

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 plaintiffs requested an amendment to the court's previous reasons dismissing their request for injunctive relief, citing an error in a transcript regarding whether the Law Society of Upper Canada was investigating the plaintiffs.

The defendant conceded the transcript error but argued the dismissal should be maintained.

The court corrected the factual error in its supplementary reasons but declined to amend its previous order, finding that the plaintiffs' case for injunctive relief was still not ironclad enough to warrant the exceptional remedy sought.

The plaintiff brought a motion for leave under Rule 48.04(1) to bring a subsequent motion to strike a pleading in the defendants' Fresh as Amended Statement of Defence.

The plaintiff argued leave was not required because the action had been struck from the trial list.

The court held that leave was still required and denied the motion, finding no significant or unexpected change in circumstances to justify the delay of over three and a half years since the impugned pleading was delivered.

The representative plaintiff in a class action sought costs following a successful second motion under s. 5(1)(a) of the Class Proceedings Act and a subsequent consent certification.

The court awarded the plaintiff partial indemnity costs of $31,089 for the contested motion.

For the balance of the certification motion, the court ordered a hybrid costs award because the defendants did not communicate their consent in a timely fashion, fixing costs at $65,235, with one-third payable forthwith and two-thirds payable in the cause.

The defendants sought costs following their substantially successful motion to compel the production of documents over which the plaintiff claimed privilege.

The plaintiff argued that costs should be in the cause or that no costs should be awarded due to divided success.

The court found that the defendants were overwhelmingly successful based on the number of documents ordered produced and the issues resolved.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $30,000 on a partial indemnity scale, payable within 30 days.

The defendants brought a motion to compel production of documents from the file of the plaintiff's subrogating insurer and to examine a representative of the insurer.

The plaintiff claimed solicitor-client, litigation, and settlement privilege over the documents.

The court reviewed the documents and ordered production of those where the dominant purpose was claims assessment rather than litigation defence, and those where the settlement privilege exception applied.

The court also ordered the examination of the insurer's representative, finding the action was brought for the insurer's immediate benefit.

A case conference was held regarding an application by a purchaser for the return of a $430,000 deposit from a failed real estate auction, and a related action by the auctioneer for its commission.

The court ordered a consent interpleader allowing the auctioneer's counsel to pay the deposit into court.

The court also set a timetable for a cross-application by the auctioneer and stayed the related action pending the outcome of the applications.

The moving party, Zayo Inc., previously had its motion dismissed.

The motion sought an order for the Monitor to pay Zayo $1,228,799.81 from the proceeds of the sale of the applicants' assets.

In this costs endorsement, Zayo argued that costs are not the norm in CCAA proceedings.

The court disagreed, finding this to be an exceptional case where the normal rule of costs should apply, as the real opponents (the secured lenders and the purchaser) were not insolvent.

The court awarded costs against Zayo, fixing them at $30,000 each for Primus and BMO, and $20,000 each for Birch and the Monitor.

Zayo Inc. brought a motion seeking an order for FTI Consulting Canada Inc., as Monitor for the Primus Entities, to pay Zayo $1,228,799.81 from asset sale proceeds.

This amount represented pre-CCAA filing arrears owed to Zayo under contracts assigned to Birch Communications Inc. Zayo argued the consent process for assignment was not transparent or fair, alleging it was misled into consenting without realizing it could have leveraged Section 11.3(4) of the CCAA to demand full payment of arrears.

The court dismissed the motion, finding the consent process fair and transparent, noting Zayo's sophistication and lack of due diligence.

The court also found that granting the order would cause prejudice to secured lenders and Birch, as it would require varying existing orders and disrupt a closed transaction.

The Steering Committee, an unincorporated group of physicians and scientists, sought to intervene in a joint hearing of motions concerning the allocation of actuarially unallocated funds from the 1986-1990 Hepatitis C Settlement Agreement.

The Committee proposed allocating funds to its "National HCV Initiative" which aimed to benefit all Canadians with HCV, not just class members.

The court dismissed the intervention request, finding that the Steering Committee was a stranger to both the Settlement Agreement and the underlying litigation, lacking privity of contract or any substantive right to participate in the administration of the settlement.

The applicants, cancer researchers at the University Health Network, sought judicial review of the hospital CEO's decision affirming an investigation committee's finding that they committed research misconduct.

The committee found the applicants guilty of falsification, fabrication, and material non-compliance, resulting in a suspension of their research activities.

The Divisional Court held that the CEO's decision was subject to judicial review and reviewable on a reasonableness standard.

The court quashed the findings of falsification and fabrication as unreasonable because the committee could not identify who altered the images.

However, the court upheld the finding of material non-compliance based on systemic flaws in the applicants' laboratory management.

The matter of sanction was remitted for reconsideration.

The defendant sought leave to appeal an order dismissing a motion to strike or stay an amended statement of claim.

The underlying action alleged that government representations induced the plaintiffs to invest in a telecommunications company and that subsequent government conduct destroyed the value of the investment, causing significant losses.

The moving party argued the claim was derivative in nature and that several pleaded causes of action disclosed no reasonable cause of action.

The court held that the stringent test for leave to appeal under Rule 62.02(4)(b) was not met because there was no reason to doubt the correctness of the motion judge’s decision.

Although the pleadings raised novel and important legal issues, they were not plainly and obviously doomed to fail and should proceed on a full evidentiary record.

The applicants sought to bring their application for judicial review before a single judge of the Divisional Court pursuant to s. 6(2) of the Judicial Review Procedure Act.

The underlying application challenged the respondent hospital's decision to suspend the applicants' research activities following a finding of research misconduct.

The court dismissed the motion, finding that the applicants failed to establish the requisite urgency or that a delay would result in a failure of justice, noting the applicants' own delay in bringing the application.

The matter was transferred to be heard by a full panel of the Divisional Court.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.

In a bifurcated class action certification motion, the court considered whether unit-holders of a publicly traded real estate investment trust had pleaded viable causes of action arising from an allegedly conflicted property transaction that was later rescinded, causing a sharp drop in unit value.

The court held it was plain and obvious that officers and trustees did not owe fiduciary duties directly to unit-holders in the circumstances pleaded, and struck the fiduciary duty claims.

However, the breach of trust claims against certain trustees, grounded in the declaration of trust and the arguable ability of unit-holders to sue for dishonest or negligent breach of trustee obligations, were allowed to proceed.

The knowing assistance claim survived only against the former CEO, while similar claims against the vendor parties and their solicitors were struck for failure to plead active assistance in the trustee's breach.

Certification was dismissed as against the vendor parties and their solicitors.

The applicants, anchor tenants in three shopping malls, sought to assign and sublease their leases to a joint venture limited partnership.

The respondent landlords refused consent.

The court held that consent was not required because the leases were being assigned to the general partner, which was an affiliate of the existing tenant, thus falling under the leases' Affiliate Exception.

Alternatively, the court found that the landlords unreasonably withheld consent for two of the leases, as the tenant would remain liable and continue operating the stores, but the landlord was entitled to arbitrarily withhold consent for the third lease based on its specific terms.

The defendants sought leave to appeal an order certifying a class proceeding for unpaid overtime on behalf of approximately 7,800 employees.

The defendants argued the certification decision conflicted with appellate authority regarding systemic practices and misclassification.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the plaintiff had properly framed the case around a systemic policy rather than individual misclassification.

The plaintiff in a certified class action brought a motion to strike the defendants' reply factum filed on a motion for leave to appeal.

The plaintiff argued the reply factum violated Rule 61.03.1(11) of the Rules of Civil Procedure by re-arguing issues rather than responding to new issues.

The Divisional Court agreed, finding that the plaintiff's responding factum did not raise new issues but merely responded to the defendants' original arguments.

The motion was granted, the reply factum was struck, and costs of $5,000 were awarded to the plaintiff.