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 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.

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 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.

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.