Lise Favreau

The applicant sought judicial review of a decision by the Minister of Natural Resources granting a permit under the Endangered Species Act, 2007 for a highway project.

At the opening of the hearing, the respondents brought a preliminary motion to strike three affidavits filed by the applicant.

The Divisional Court granted the motion, striking two affidavits in their entirety and most of the third, emphasizing that judicial review is generally restricted to the record before the decision-maker.

The court noted that fresh evidence is only admissible in exceptional circumstances, which were not present, and criticized the parties for not resolving the evidentiary record prior to the hearing.

The appellants appealed a motion judge's refusal to dismiss the respondents' civil action based on statutory immunity under s. 38.1 of the Independent Health Facilities Act and abuse of process.

The respondents cross-appealed the striking of allegations relating to investigations under the Health Professions Procedural Code.

The Court of Appeal dismissed both the appeals and the cross-appeal, holding that while s. 38.1 provides immunity for losses resulting from specific regulatory orders, factual findings at trial are required to determine if any claimed losses fall outside this protection.

The abuse of process arguments were also left open for trial.

The applicants, Shoppers Drug Mart Inc. and Katz Group Canada Inc., sought costs after being wholly successful in their judicial review applications against the Minister of Health and Long-Term Care.

The respondents argued the claimed costs were excessive and duplicative.

The Divisional Court rejected the duplication argument, noting the complexity and importance of the first-instance proceeding.

The court awarded Katz Group its full claimed costs, but reduced Shoppers Drug Mart's fee claim from $104,354 to $80,000 due to excessive hours and duplication among its legal team.

The plaintiffs, family members of a young man fatally shot by police, sued the Special Investigations Unit (SIU) for negligent investigation.

The defendants moved to strike the claim as disclosing no reasonable cause of action.

The motion judge and Divisional Court allowed the claim to proceed.

On appeal, the Court of Appeal allowed the appeal and struck the claim, holding that it was plain and obvious that the SIU does not owe a private law duty of care to victims of crime or their families.

The SIU's statutory duty is owed to the public at large, and recognizing a private duty would conflict with its overarching public mandate.

The appellant appealed a decision of the Health Services Appeal and Review Board under the Independent Health Facilities Act.

The Divisional Court found that the Board erred in law by asking itself the wrong question, limiting its consideration to whether the Director had the authority to revoke the appellant's licence rather than whether the revocation was a reasonable exercise of discretion.

The court rescinded the Board's decision and remitted the matter back for a re-hearing, noting that the Board's process is a hearing where it may substitute its own opinion for that of the Director.

The applicant physician sought judicial review of a decision by the General Manager of OHIP imposing an administrative charge of $81,450 for 543 unauthorized payments.

The Divisional Court dismissed the application, finding that the General Manager had no duty to refer the administrative charge issue to the Health Services Appeal and Review Board, as the Board's jurisdiction is limited to reviewing unauthorized payments.

The Court confirmed the General Manager's authority to impose a $150 administrative charge for each unauthorized payment under the Commitment to the Future of Medicare Act, 2004.

Furthermore, the Court noted it would have declined to grant the discretionary remedy of judicial review due to the applicant's delay in bringing the application.

The applicants, who own and operate pharmacies in Ontario, challenged the validity of provincial regulations that prohibited 'private label' generic drugs from being designated as interchangeable or listed for public reimbursement.

The Divisional Court held that the regulations were ultra vires the Ontario Drug Benefit Act and the Drug Interchangeability and Dispensing Fee Act.

The Court found that the enabling statutes authorized the imposition of conditions, not absolute prohibitions, and that the ban on private label products was extraneous to the legislative purpose of controlling drug costs.

The regulations were declared invalid and of no force and effect.

The appellants brought a motion to a full panel of the Divisional Court under s. 21(5) of the Courts of Justice Act to set aside an order of a single judge.

The single judge had quashed their appeal from an interlocutory order of the Discipline Committee of the Ontario College of Pharmacists refusing production of third party records, and refused to convert the appeal into an application for judicial review.

The full panel upheld the quashing of the appeal, agreeing it was an interlocutory order.

However, the panel set aside the refusal to convert the appeal into an application for judicial review, finding that the appellants raised an arguable point regarding procedural fairness and the need for third party records to effectively cross-examine key witnesses.

The appellant was ordered to undergo a psychiatric assessment under s. 672.11 of the Criminal Code and was held in a detention centre for 15 days before a hospital bed became available.

She brought a proposed class action alleging Charter violations, breach of fiduciary duty, and negligence by the Crown for failing to immediately transfer her to a hospital.

The Court of Appeal upheld the dismissal of the action, finding that the Criminal Code permits detention in a jail pending transfer to a hospital, the detention was lawful, and the Crown owed no fiduciary duty to the appellant that would override its public interest obligations.

Sierra Club Canada brought a motion for an interlocutory injunction to halt demolition and construction activities for the Windsor-Essex Parkway, arguing the work would irreparably harm endangered species despite a permit issued under the Endangered Species Act.

The court dismissed the motion, finding no evidence of irreparable harm and that the balance of convenience favoured continuing the project with the permit's mitigation measures.

The respondent's cross-motion to dismiss the judicial review application for delay was adjourned to the panel hearing the application.

The moving party sought an interim injunction to halt the demolition of houses pending the hearing of an interlocutory injunction.

The court dismissed the motion, finding that the moving party failed to establish irreparable harm, noting that pre-screening of the properties had found no snakes.

The court also found that the balance of convenience favoured the responding party, as the demolition plans had been public for some time and the moving party could have sought relief earlier.

The Ministry of Correctional Services brought an application for judicial review of a Human Rights Tribunal order requiring the production of settlement documentation.

The respondent employee sought the documents to prove the Ministry failed to implement previously ordered remedies for workplace racial discrimination.

The Divisional Court dismissed the application, finding that the adjudicator correctly ordered production because the documents were relevant and necessary to address a compelling interest of justice, falling within an exception to settlement privilege.

The defendants sought leave to appeal an order dismissing their motion for summary judgment and to strike the plaintiffs' statement of claim.

The plaintiffs alleged the defendants engaged in a conspiracy and 'closure campaign' against their sleep clinics.

The defendants argued the claims were barred by statutory immunity under the Independent Health Facilities Act and constituted an abuse of process.

The Divisional Court dismissed the motions for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision that the pleadings were sufficient and the claims were not clearly barred by immunity.

The plaintiffs, family members of a young man shot and killed by police, brought an action against the Special Investigations Unit (SIU) alleging negligent investigation.

The defendants moved to strike the claim under Rule 21, arguing the SIU owed no private law duty of care to the family.

The motion judge dismissed the motion, finding it was not plain and obvious the claim would fail.

The Divisional Court dismissed the defendants' appeal, holding that the existence of a duty of care in these circumstances is a novel question of law that should be determined on a full evidentiary record at trial, applying the Anns/Cooper test.

The applicant physician sought judicial review of a decision by the General Manager of OHIP to suspend his medical fee payments due to his failure to cooperate with a statutorily mandated inspection of his records.

The application was brought nearly ten years after the decision.

The Divisional Court dismissed the application for undue delay, finding the delay inexplicable and prejudicial to the respondent due to the destruction of the applicant's records.

The court also held that, on the merits, the General Manager's decision to suspend payments was reasonable and authorized by the Health Insurance Act.

The defendants sought leave to appeal a decision dismissing their Rule 21 motion to strike the plaintiffs' claim for negligent investigation against the Special Investigations Unit (SIU).

The plaintiffs, family members of a youth killed in a police shooting, alleged the SIU's inadequate investigation compromised their participation in an inquest and civil action.

The court granted leave to appeal, finding conflicting jurisprudence on whether police or the SIU owe a private law duty of care to victims' families, and noting the issue is of general importance to the development of the law.

Apotex Inc. sought judicial review of decisions by the Executive Officer of the Ontario Public Drug Programs refusing to increase the reimbursable pricing of three generic antibiotic drugs.

The applicant argued that the historic pricing exemption should apply to allow price increases and challenged the Executive Officer's reliance on the single source pricing exemption to negotiate a price increase with a competitor.

The Divisional Court dismissed the application, finding that the Executive Officer's interpretation of the legislation and regulations was reasonable and that her actions to ensure a continued supply of the drugs were lawful and in the public interest.

The appellant trustee in bankruptcy appealed an order granting the Ministry of Health and Long Term Care equitable set-off.

The Ministry sought to set off $1,000,000 owed by the Crown for occupation rent of a nursing home against $4,413,285.85 owed by the bankrupt owner for over-subsidization.

The Court of Appeal dismissed the appeal, finding the application judge correctly applied the test for equitable set-off, as the cross-obligations were directly related and arose from the Ministry's decision to fund the operation directly rather than by subsidy.

The plaintiffs sued Ontario for damages suffered as a result of contracting SARS during the 2003 outbreak, alleging negligence, breach of statutory duty, conflict of interest, and breach of section 7 of the Charter.

Ontario moved to strike the statement of claim.

The motion judge struck parts of the claim but allowed the negligence, conflict of interest, and Charter claims to proceed.

On appeal, the Court of Appeal held that it was plain and obvious the allegations did not give rise to a private law duty of care or a viable Charter claim.

The appeal was allowed and the statement of claim was struck in its entirety.

The plaintiffs, nurses who contracted SARS during the 2003 outbreak, sued Ontario for negligence and breach of section 7 of the Charter.

Ontario moved to strike the claim, arguing it owed no private law duty of care to the nurses.

The motion judge struck parts of the claim but allowed the action to proceed.

On appeal, the Court of Appeal struck the entire claim, holding that Ontario's duty to protect the public from communicable diseases does not create a private law duty of care to individual healthcare workers.

The Court also found no basis for the section 7 Charter claim, as the government's actions were not arbitrary.