David Tyndale

This costs endorsement addresses the plaintiff’s entitlement to costs following a successful motion for exemption from mandatory mediation and related matters.

The court reviews the scale and quantum of costs, the relevance of expert evidence, the impact of funding by the Court Challenges Project, and the apportionment of costs between motions.

The court ultimately awards costs to the plaintiff, finding them reasonable and incidental to the proceeding.

This decision addresses the applications of various organizations to intervene in a constitutional challenge regarding migrant access to health care in Canada.

The court grants leave to several coalitions and organizations to intervene as friends of the court, with some permitted to review productions and attend discovery.

The court also addresses the scope of the deemed undertaking rule, the discretion to relieve intervenors from costs, and the exemption of the matter from mandatory mediation.

The ruling clarifies the criteria for intervention, the rights of intervenors, and the balancing of public interest and litigation efficiency.

This endorsement addresses a motion by the Attorney General of Canada for a further extension of the suspension of a declaration of invalidity concerning sections 3(3)(a) and 3(3)(b) of the Citizenship Act, which were previously found to contravene the Charter.

The court assessed the respondent's updated mechanism for addressing urgent hardship cases and the progress of Bill C-71, intended to remedy the unconstitutional provisions.

The court found the hardship mechanism sufficient and the legislative progress satisfactory, concluding that a further extension would not undermine confidence in the administration of justice.

The extension was granted until December 19, 2024, and the applicants were awarded partial indemnity costs.

The plaintiffs brought a motion to certify a class action against Canada on behalf of immigration detainees who were incarcerated in provincial prisons.

The plaintiffs alleged that the practice of detaining immigration detainees in provincial prisons, where they are subjected to penal conditions such as co-mingling with criminal inmates, strip searches, and the use of restraints, violates sections 7, 9, 12, and 15 of the Charter and constitutes systemic negligence.

The court dismissed all of Canada's objections, finding that the pleadings disclosed reasonable causes of action, the class was identifiable, the common issues could be determined in common, a class action was the preferable procedure, and the representative plaintiffs were adequate.

The motion for certification was granted.

The Attorney General of Canada brought an urgent motion seeking a six-month extension of a suspended declaration of invalidity concerning sections 3(3)(a) and 3(3)(b) of the Citizenship Act, which were previously found unconstitutional for limiting derivative citizenship.

The applicants opposed the extension or sought conditions.

The court granted a shorter extension until August 9, 2024, with a further hearing scheduled for August 1, 2024, to review progress on remedial legislation (Bill C-71) and an improved plan for addressing hardship cases.

The court also ordered that constitutional exemptions be granted to other first-generation born abroad applicants.

This decision provides supplementary reasons to a constitutional application that previously found s. 3(3)(a) of the Citizenship Act unconstitutional for creating a second-generation cut-off for citizenship by descent.

The court clarifies and amends its prior order, extending the declaration of invalidity to s. 3(3)(b) of the Act, which also imposes a second-generation cut-off for those born before 1977.

It also amends the constitutional exemptions granted to specific applicants and their children, including those born after the initial hearing, and extends the deadline for issuing citizenship certificates due to logistical issues.

The applicants challenged the constitutionality of the 'second-generation cut-off' in s. 3(3)(a) of the Citizenship Act, which prevents Canadian citizens born abroad from automatically passing citizenship to their children born abroad.

The Superior Court of Justice found that the provision violates s. 15(1) of the Charter by discriminating on the basis of national origin and the intersection of national origin and sex.

The court also found a violation of s. 6(1) mobility rights, as the law penalizes first-generation born abroad Canadians for choosing to live and work abroad.

The violations were not saved by s. 1.

The court declared the provision of no force or effect, suspended the declaration for six months, and granted constitutional exemptions to specific applicants, but denied Charter damages.

This is an appeal from a motion judge's order dismissing a motion to strike an action.

The motion judge had declared the respondent's claims timely and within the Ontario court's jurisdiction.

The Court of Appeal found that the motion judge erred by declaring the claim timely and precluding the appellant from raising a limitations defence on a Rule 21 motion, as fact-finding is generally not appropriate at that stage.

However, the Court upheld the motion judge's finding that the Ontario court had jurisdiction over the matter.

The appeal was allowed in part, striking the order that precluded the limitations defence.

The defendant, the Attorney General of Canada, brought a motion to defer filing its statement of defence until after the certification motion in a proposed class proceeding regarding immigration detention.

The court dismissed the motion, applying the presumption that a defendant must file a statement of defence before certification unless special circumstances justify a deferral.

The court found that the legal issues were well-defined and the defendant's concerns about the complexity and resources required to prepare the defence conflated pleading preparation with discovery or trial preparation.

The plaintiff successfully defended a motion brought by the defendant to dismiss her Charter action regarding exclusion from health care coverage.

The plaintiff sought costs of the motion on a substantial indemnity basis in the amount of $181,666.71, or alternatively on a partial indemnity basis in the amount of $121,111.14.

The court found no justification for substantial indemnity costs and awarded costs on a partial indemnity scale.

Applying the principle of reasonableness and the factors under Rule 57.01(1), the court fixed the plaintiff's costs at $92,000 all inclusive.

The defendant, the Attorney General of Canada, brought a motion to strike the plaintiff's action for damages and declaratory relief arising from the denial of public health care while she was an irregular migrant.

The plaintiff alleged violations of her Charter rights and customary international law, relying on a decision by the United Nations Human Rights Committee.

The court dismissed the motion to strike, finding that the Ontario Superior Court has jurisdiction, the claims are not statute-barred, it is not plain and obvious that the claims are barred by res judicata, and the claims disclose a reasonable cause of action that is not doomed to fail.

The defendants in two related class actions brought motions to compel the representative plaintiffs to answer questions refused during examinations for discovery.

The refused questions related to the plaintiffs' individual medical and employment histories, reasons for detention, and other individual experiences.

The court dismissed the defendants' motions, holding that discovery prior to a common issues trial is limited to the common issues.

The court found that the individual damages questions were not relevant to the common issues of systemic negligence or aggregate damages, which must be determined without reference to the circumstances of individual class members.

The plaintiffs brought motions on consent to certify two class actions against Ontario and Canada arising out of staffing-related lockdowns at Ontario correctional institutions.

The plaintiffs alleged systemic negligence and breaches of sections 7 and 12 of the Charter.

The court found that the pleadings disclosed a cause of action, there was an identifiable class, the claims raised common issues, a class proceeding was the preferable procedure, and there were adequate representative plaintiffs.

The motions for certification were granted.