Freya Kristjanson

The respondents, a tobacco farmer and his company, were found by the Ontario Flue-Cured Tobacco Growers' Marketing Board to have engaged in the unlawful sale of tobacco outside the quota system.

The Board cancelled their tobacco quota.

The Agriculture, Food and Rural Affairs Appeal Tribunal substantially confirmed the Board's decision.

On judicial review, the Divisional Court quashed the decisions, applying a correctness standard of review and finding errors of law, including a reasonable apprehension of bias.

The Board and the Tribunal appealed.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by failing to apply the pragmatic and functional approach, which dictated a reasonableness standard of review.

The Court of Appeal found the Tribunal's factual findings and application of the standard of proof were reasonable, and that no reasonable apprehension of bias was established.

However, the Court found the Tribunal's penalty decision unreasonable because it upheld the Board's penalty without explaining why it did so despite making different factual findings.

The matter was remitted to the Tribunal to reconsider the penalty.

The Children's Lawyer for Ontario appealed a Divisional Court decision that dismissed its application for judicial review of an Information and Privacy Commissioner order.

The Commissioner had ordered the disclosure of certain records requested by a former client of the Children's Lawyer.

On judicial review, the Commissioner defended her decision on a new ground, arguing the Children's Lawyer was not acting as Crown counsel.

The Children's Lawyer challenged the Commissioner's standing to raise this new argument.

The Court of Appeal dismissed the appeal, holding that the Divisional Court properly exercised its discretion under the Judicial Review Procedure Act to grant the Commissioner full standing to ensure a fully informed adjudication.

The Minister of Health responded to two freedom of information requests by refusing to confirm or deny the existence of responsive records, relying on s. 21(5) of the Freedom of Information and Protection of Privacy Act.

The Information and Privacy Commissioner held that the Minister must establish both that disclosure of the records would constitute an unjustified invasion of personal privacy, and that disclosure of the mere existence of the records would itself convey information constituting an unjustified invasion of privacy.

The Divisional Court quashed the Commissioner's decision.

On appeal, the Court of Appeal held that the standard of review was reasonableness and that the Commissioner's interpretation of s. 21(5) was reasonable.

The appeal was allowed and the application for judicial review was dismissed.

This is a note reporting that the Supreme Court of Canada dismissed the appeal from the Court of Appeal for Ontario's decision in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services).

The case involved the distribution of an actuarial surplus upon the partial wind up of a defined benefit pension plan under the Pension Benefits Act.

Appeal concerning whether terminated members of a defined benefit pension plan are entitled to immediate distribution of a proportional share of actuarial surplus on a partial wind-up.

The Court held that the applicable standard of review of the Financial Services Tribunal’s interpretation of s. 70(6) of the Pension Benefits Act was correctness.

Applying the modern principle of statutory interpretation to the text, scheme, and purpose of the legislation, the Court concluded that s. 70(6) requires the realization and distribution of the affected members’ pro rata share of surplus as of the effective date of partial wind-up, if they are otherwise entitled.

The appeal was dismissed with costs.

The applicants sought judicial review of a decision by the Agriculture, Food and Rural Affairs Appeal Tribunal, which upheld the cancellation of their tobacco production quota for alleged illegal sales.

The Divisional Court quashed the decisions of both the Board and the Tribunal, finding that the Tribunal failed to apply the required standard of clear and convincing proof for quasi-criminal allegations and relied on insufficient evidence.

The Court also found a reasonable apprehension of bias because an adjudicator from the initial Board hearing testified as a prosecution witness before the Tribunal.

The Minister of Health and Long Term Care appealed a Divisional Court decision upholding an order by the Assistant Information and Privacy Commissioner to produce records relating to physician remuneration.

The Court of Appeal allowed the appeal, finding that the phrase 'labour relations' in s. 65(6)3 of the Freedom of Information and Protection of Privacy Act is not restricted to employer/employee relationships.

The court held that the relationship between the government and physicians, including the work of the Physician Services Committee, falls within 'labour relations', exempting the requested records from the Act.

The Children's Lawyer for Ontario (CLO) acted as litigation guardian and legal representative for a minor.

When the minor reached the age of majority, she requested her file.

The CLO treated the request under the Freedom of Information and Protection of Privacy Act (FIPPA) and refused to disclose portions of the file, claiming exemptions under s. 19 (Crown counsel litigation privilege) and s. 13 (advice to government).

The Information and Privacy Commissioner ordered disclosure.

On judicial review, the Divisional Court held that the Commissioner had standing to participate.

The Court dismissed the application, finding that the CLO is not 'Crown counsel' when acting for a minor and that s. 13 does not apply to advice given for the benefit of a private client.

The CLO's fiduciary duties to the client precluded withholding the file.

The Ministry of Health and Long-Term Care sought judicial review of a decision by the Assistant Information and Privacy Commissioner.

The Commissioner had ordered the Ministry to confirm or deny the existence of records relating to a settlement with an individual, interpreting s. 21(5) of the Freedom of Information and Protection of Privacy Act as requiring a two-part test.

The Divisional Court allowed the application, finding that the Commissioner's interpretation was unreasonable and clearly wrong, as the plain language of s. 21(5) does not require the institution to prove that disclosing the mere existence of the record would constitute an unjustified invasion of personal privacy.

This is a supplementary reasons for judgment regarding costs following an appeal and a Rule 59 motion concerning a pension plan death benefit.

The successful appellant sought substantial indemnity costs payable out of the pension plan fund.

The court found that the litigation clarified a problematic part of the Pension Benefits Act, benefiting members and administrators of plans throughout Ontario.

Applying the principle that costs of litigation necessary for the administration of a trust should be paid from the trust, the court awarded the appellant substantial indemnity costs of $40,000 plus disbursements, payable by the Board from the funds of the Plan.

At the commencement of a judicial review application, the applicant raised a preliminary objection without notice, arguing the Information and Privacy Commissioner should not be permitted to address the correctness of its own decision.

The Divisional Court adjourned the application, ordering that the preliminary objection be properly briefed with facta and that an amicus curiae be appointed to assist the court on the substantive issues in the event the Commissioner is denied standing to argue the correctness of the decision.

The Ontario Teachers' Pension Plan Board brought a motion to amend a previous Divisional Court order regarding the allocation of a deceased member's pre-retirement death benefit between his former spouse and his surviving spouse.

The court held that the former spouse's entitlement under a separation agreement was not limited to benefits accrued after 1986, as the Pension Benefits Act provisions allowing assignment of pension benefits on marriage breakdown applied to both pre-1987 and post-1986 benefits.

However, the court found that section 51(2) of the Act limited the former spouse's entitlement to 50% of the benefits accrued during the period of marriage, which ended on the date of their divorce.

The Minister of Health and Long Term Care appealed a decision of the Assistant Information and Privacy Commissioner regarding the disclosure of records of the Physician Services Committee.

The Minister argued the records were exempt under the 'labour relations' provision in s. 65(6)3 of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the appeal, agreeing with the Commissioner that 'labour relations' refers to the collective relationship between an employer and its employees.

Since members of the Ontario Medical Association are not employees of the Ministry, the exemption did not apply.

The applicant employer sought consent to withdraw surplus funds from a wound-up pension plan.

The Superintendent of Financial Services initially proposed to refuse consent.

Following a settlement conference, the parties reached an agreement.

The Financial Services Tribunal issued a consent order directing the Superintendent to refrain from refusing consent and directing the payment of the surplus to the applicant in accordance with the Surplus Distribution Agreement.

The appellant appealed a Financial Services Tribunal decision that directed the Superintendent not to order the Ontario Teachers' Pension Plan Board to pay her a pre-retirement death benefit.

The appellant and the deceased plan member had separated and executed a separation agreement dividing the pension, but the deceased later remarried.

The Divisional Court held that under section 48(13) of the Pension Benefits Act, the subsequent spouse's entitlement to the death benefit is subject to the former spouse's interest set out in a valid domestic contract.

The appeal was allowed and the Board was ordered to pay the appellant her share of the benefit.

The Superintendent of Financial Services appealed a decision of the Financial Services Tribunal regarding the partial wind-up of a pension plan by Monsanto Canada Inc. The Tribunal had ruled that Monsanto was not required to distribute pension surplus on a partial wind-up and that Monsanto had a legitimate expectation based on past regulatory practice.

The Divisional Court allowed the appeal, adopting the dissenting reasons of the Tribunal.

The Court held that section 70(6) of the Pension Benefits Act requires the distribution of surplus on a partial wind-up, and that the doctrine of legitimate expectation cannot justify disregarding the requirements of the law.

The applicant, Monsanto Canada Inc., brought a preliminary motion for orders directing the Superintendent of Financial Services to disclose documents and answer interrogatories regarding past practice on partial wind up reports.

Monsanto argued this information was relevant to its claim of legitimate expectation.

The Financial Services Tribunal granted the motion, finding that the requested information was arguably relevant to a non-frivolous issue, sufficiently particularized, and not privileged.

The respondent, charged with indecent assault, sought the production of the complainant's counselling records held by third-party institutions.

The trial judge ordered the records produced.

The third parties appealed the interlocutory order.

The Supreme Court of Canada held that it had jurisdiction to hear the appeal under s. 40(1) of the Supreme Court Act.

On the substantive issue, the Court applied the framework established in the companion case of R. v. O'Connor, balancing the accused's right to make full answer and defence against the complainant's privacy and equality rights.

The Court found that the trial judge erred in ordering production without first determining likely relevance and balancing the competing Charter rights.

The appeal was allowed and the order for production was quashed.

The appellants challenged a provincial commission of inquiry into alleged dealings between named private individuals, a corporation, and public officials.

The majority held that, in pith and substance, the inquiry functioned as a substitute police investigation and preliminary inquiry into a specific Criminal Code offence, thereby intruding on Parliament's exclusive jurisdiction over criminal law and criminal procedure under s. 91(27) of the Constitution Act, 1867.

The naming of private individuals, the close mirroring of s. 121 of the Criminal Code, and the inquiry's coercive powers were found cumulatively to render the Order in Council ultra vires.

The Court therefore allowed the appeal and did not decide the remaining Charter issues.