Jennifer King

Ten groups brought motions for leave to intervene in an appeal concerning whether a municipal by-law prohibiting individuals from erecting tents or living in public parks violated sections 7 and 15 of the Charter.

The motion judge granted leave to intervene to seven groups, finding they would provide unique and helpful perspectives on issues such as Charter damages, international human rights standards, and the social context of homelessness.

Leave was denied to three groups whose proposed submissions either expanded the scope of the appeal or duplicated arguments already raised by the parties.

The plaintiffs brought a motion for an order to permit them to obtain soil and groundwater samples from a neighbouring property owned by a non-party, after the action had been set down for trial.

The plaintiffs sought the samples to allow their expert to perform forensic environmental testing to respond to the defendants' expert reports regarding PCB contamination.

The court granted leave to bring the motion, finding the expert's need for additional sampling constituted an unexpected change in circumstances.

The court also granted the inspection order, concluding that the testing would be useful and probative in determining whether the contaminants on the plaintiffs' property originated from the neighbouring property.

The applicants, owners of the Glen Abbey Golf Course, brought an application to quash five municipal by-laws enacted by the respondent Town.

The by-laws aimed to preserve the property's use as a golf course following its designation as a cultural heritage property.

The Superior Court of Justice allowed the application and quashed the by-laws, finding them ultra vires the Town's authority under the Municipal Act, as they improperly required the provision of services related to recreation and culture.

The court also found the by-laws were enacted in bad faith to thwart the applicants' redevelopment plans and were void for vagueness.

In garnishment proceedings to enforce an arbitral award against a foreign state, the moving party sought cross-examinations and broad document production relating to embassy bank accounts said to be immune from execution.

The court applied the previously established framework recognizing a strong but rebuttable presumption of diplomatic immunity once a competent authority provided due assurances that the accounts were used for sovereign or diplomatic purposes.

The court held that compelling the ambassador, the bank, or third parties to disclose records or submit to questioning would unduly interfere with the affairs of the diplomatic mission and was not justified on the evidentiary record.

The motion to strike the moving party’s affidavit was also dismissed.

All production and cross-examination requests were denied.

The applicant judgment creditor sought to enforce a foreign arbitral award by garnishing embassy-related bank accounts in Canada.

The court held that customary international law governs immunity over embassy bank accounts through a restrictive immunity framework requiring proof of diplomatic relations, assurances of diplomatic purpose, and an opportunity for the creditor to rebut immunity by proving a commercial or other non-diplomatic use.

A Foreign Relations Certificate from the Minister of Foreign Affairs was conclusive only as to the existence of diplomatic relations between the states.

It did not confer absolute immunity or bar further inquiry into whether the accounts fell within an exception.

In a national class action by terminated GM dealers against GMCL and their counsel, Cassels Brock & Blackwell (CBB), CBB brought third party claims against out-of-province local lawyers who provided independent legal advice to the dealers.

The out-of-province third parties brought motions to stay or dismiss the claims for lack of jurisdiction or forum non conveniens.

The court dismissed the motions, finding that the Ontario court had jurisdiction under the fourth Van Breda presumptive connecting factor because the Wind-Down Agreements, which required the independent legal advice, were made in Ontario and were sufficiently connected to the dispute.

The court also found Ontario to be the most appropriate forum.

The appellant insurer appealed a decision finding that its directors and officers insurance policy provided coverage for defence costs incurred by the respondent in an OSC proceeding.

The respondent had previously given notice of potential claims to a prior insurer.

The Court of Appeal upheld the application judge's finding that, viewed objectively, the parties intended the new policy to cover the prior acts referred to in the notice up to the first $5 million of the policy limits.

The court found that the insurer had waived the carve-out provisions in the application and that general exclusion clauses did not override the specific agreement for prior acts coverage.

The appeal and cross-appeal on costs were dismissed.