Holly Walbourne

The appeal concerns the openness of a police services board hearing regarding an extension of time for service of a disciplinary notice.

Following an investigation by the Ontario Independent Police Review Director into allegations of police misconduct in the investigation of the death of an Indigenous man, a retired judge appointed as a substitute decision-maker ordered that the extension hearing be held in camera.

The Canadian Broadcasting Corporation and First Nation complainants sought judicial review, arguing that the hearing should be open pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms.

The Divisional Court upheld the in camera order, finding that the Dagenais/Mentuck test did not apply to administrative proceedings and that the statutory test under the Police Services Act was sufficient.

The Court of Appeal allowed the appeal, finding that while the Dagenais/Mentuck test does not apply to administrative proceedings, the Charter right to freedom of expression and freedom of the press recognized in Langenfeld applies to police services board meetings, and the presumption of openness under the Police Services Act must be considered in light of this Charter protection.

The appellants, charged with drug offences, sought disclosure of police policy directives regarding confidential informants during their preliminary inquiry.

After the Crown refused disclosure, the preliminary inquiry judge issued subpoenas duces tecum to the police chiefs.

A Superior Court judge quashed the subpoenas, finding the preliminary inquiry judge lacked jurisdiction to order what amounted to third-party disclosure.

The appellants appealed.

Although the appeal was moot because the appellants had since pleaded guilty, the Court of Appeal exercised its discretion to hear it.

The Court dismissed the appeal, holding that a preliminary inquiry judge cannot use a subpoena duces tecum to circumvent the jurisdictional limits on ordering production of third-party records, which must be sought before a trial judge under the O'Connor regime.

Police services applied to quash subpoenas duces tecum issued by a preliminary inquiry judge compelling production of police policy directives governing confidential informants.

The subpoenas were issued after the Crown had refused defence disclosure requests for the documents on grounds of irrelevance and informer privilege.

The Superior Court held that a preliminary inquiry judge lacks jurisdiction to determine disclosure applications, whether framed as first-party disclosure under Stinchcombe/McNeil or third-party production under O'Connor.

By issuing subpoenas that effectively compelled production of materials the Crown had declined to disclose and which were arguably held by third parties, the preliminary inquiry judge exceeded his jurisdiction.

The subpoenas were therefore quashed.

The defendants brought a motion in Small Claims Court to strike an amended plaintiff’s claim alleging negligent construction of an in-ground swimming pool.

The defendants argued the action was statute‑barred under the Limitations Act, 2002 because the plaintiffs allegedly discovered their loss in 2009 and commenced the claim outside the two‑year limitation period.

The court held that it was not clear on the pleadings when the claim was discovered, particularly given allegations that the defendants continued attempting to remedy the deficiencies through 2010.

Because it was possible that a proceeding was not yet an appropriate means to remedy the dispute during ongoing repair efforts, the limitation defence was not virtually certain to succeed.

The court declined to strike the claim and left the limitation issue to be determined at trial.