Michael Fenrick

On a motion for leave to intervene in a pending constitutional challenge to the mental-illness exclusion from medical assistance in dying, the court granted leave to four public-interest interveners to participate in an urgent July motion seeking individual constitutional relief under s. 24(1) of the Charter.

Applying Rule 13.02 and the generous constitutional intervention framework, the court found each proposed intervener had a sufficient interest, distinct perspective, or recognized expertise capable of assisting the court.

The court held it was premature to determine intervention in the underlying application because the evidentiary record was incomplete and additional intervener requests might follow.

Strict limits were imposed: no new evidence, no new issues, no submissions on the individual applicant’s personal circumstances, and no costs.

This is an appeal from a motion judge's order dismissing the appellants' motion for summary judgment and declaring that the respondents' action was commenced within the limitation period.

The appellants argued the claim was discovered earlier, based on a 2015 telephone conversation and a 2005 memorandum concerning tax consequences of a trust.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her application of the relevant statutory provisions and caselaw, particularly Grant Thornton LLP v. New Brunswick.

The court agreed that the information known to the respondents' lawyer was insufficient to ground a plausible inference of liability without expert advice, thus the limitation period began later, making the action not time-barred.

The appeal was dismissed with costs.

The defendants moved for summary judgment to dismiss the plaintiffs' action as statute-barred under the Limitations Act, 2002, arguing that the plaintiffs' former lawyer had sufficient knowledge of the potential claim more than two years before the action was commenced.

The plaintiffs contended that the information available to their lawyer was insufficient to trigger the limitation period, requiring further expert investigation.

The court dismissed the defendants' motion, finding that the information known to the plaintiffs' lawyer was merely a suspicion and not enough to establish a plausible inference of liability, especially given the complex technical nature of the tax issue and conflicting professional opinions.

The limitation period was held to have commenced either when further due diligence was decided upon (February 22, 2016) or when a comprehensive expert opinion was provided (February 24, 2017), both dates being within the two-year period.

The Law Society of Ontario (LSO) brought an application for an interlocutory injunction to prevent Metrolinx from removing mature trees and commencing construction of a subway station on the historic Osgoode Hall site.

The LSO argued that Metrolinx's actions required municipal approval under s. 33(1) of the Ontario Heritage Act.

The court dismissed the application, finding no serious issue to be tried because s. 33(1) does not apply to neighboring property owners or to prescribed public bodies like Metrolinx, which are governed by a separate statutory regime.

The court also found that the balance of convenience favoured allowing the critical public transit project to proceed.

The Privacy Commissioner brought a reference to the Federal Court regarding the application of PIPEDA to Google's search engine.

A complainant alleged Google contravened PIPEDA by displaying links to sensitive news articles when his name was searched.

The Court answered two reference questions.

First, the Court held that Google collects, uses, and discloses personal information in the course of commercial activities when indexing and displaying search results, as every component of its business model is commercial.

Second, the Court held Google's search engine service is not excluded from PIPEDA under the journalistic exemption, as its primary purpose is not journalistic, and certainly not exclusively journalistic.

The Court concluded PIPEDA applies to Google's search engine operations.

The plaintiffs in a price-fixing class action regarding electrolytic capacitors moved for court approval of a $5.9 million settlement with the Panasonic defendants, as well as approval of class counsel fees and disbursements.

The court found the settlement, which included significant cooperation from the settling defendants, to be fair, reasonable, and in the best interests of the class.

The court also approved the retainer agreements and the requested class counsel fees of $1,487,500 (25% of the settlement) and disbursements of $141,866.96, noting the complexity and risk of the litigation.

The plaintiff in a class action alleging a price-fixing conspiracy regarding film capacitors moved for approval of a settlement with the Panasonic defendants and for approval of class counsel fees.

The court found the $1.35 million settlement, which included valuable cooperation from the settling defendants, to be fair and reasonable despite being heavily discounted from the estimated exposure.

The court also approved the requested class counsel fees of 25% of the settlement, but ordered the payment to be split into two installments to incentivize counsel to advance the litigation more expeditiously.

The defendants brought a motion for security for costs against the plaintiff, a U.S. resident with no assets in Ontario, in a complex family dispute over trust funds.

The plaintiff claimed impecuniosity and that his action was not devoid of merit.

The court found that the plaintiff had not demonstrated impecuniosity with sufficient financial disclosure and that, while the merits were not decisive, they favored granting security due to prior releases.

The court ordered the plaintiff to post security for costs totaling $130,000 on a partial indemnity scale, balancing the plaintiff's access to justice with the defendants' protection against an unenforceable costs award.

The appellant sought to set aside an order enforcing a settlement agreement.

The appellant was a fully informed participant in the settlement, acting on legal advice, and knowingly entered into the settlement structured in the manner challenged on appeal.

The Court of Appeal found no illegality or impropriety in the enforcement of the settlement and upheld the motion judge's decision to enforce it.

The court also upheld the costs award made by the motion judge.

The applicant brought a motion to set aside an order denying its request to file an affidavit as part of its record in an application for judicial review of an Ontario Labour Relations Board decision.

The applicant argued that the affidavit was necessary to show the Board's findings of fact were unreasonable.

The Divisional Court dismissed the motion, finding no error of law by the motion judge, who was bound by established precedent that restricts the admission of new affidavit evidence on judicial review.

The applicant union brought a motion for leave to file an affidavit in support of its application for judicial review of an Ontario Labour Relations Board decision.

The affidavit sought to challenge numerous factual findings made by the Board, alleging they were unreasonable or made without evidence.

The Divisional Court dismissed the motion, applying the strict test that affidavit evidence is only admissible on judicial review in rare and exceptional circumstances to demonstrate a complete absence of evidence on an essential jurisdictional point.

The court found the applicant failed to meet this exacting standard, as the Board had received some evidence on the primary functions in dispute, and the affidavit merely reflected the applicant's counsel's differing notes of the proceedings.

The appellant appealed the dismissal of his application for judicial review against the Workplace Safety and Insurance Board and the Workplace Safety and Insurance Appeals Tribunal.

The application concerned the denial of reimbursement for non-prescription pain medication, cessation of coverage for prescription medication, and denial of benefits for certain dates in 1998.

The application judge found no urgency as required by the Judicial Review Procedure Act and dismissed the application as premature, as the appellant had not exhausted the administrative appeal process.

The Court of Appeal upheld this decision, finding no legal error in the application judge's analysis regarding the reasonableness of the WSIB's request for updated medical information.

The applicant sought judicial review of the New Democratic Party's internal decision to reject his candidacy for the party's leadership.

The court first determined that it had jurisdiction to review the decision, finding that the selection of a major political party's leader has a sufficiently broad public impact to bring it within the realm of public law.

However, applying a reasonableness standard, the court upheld the National Director's decision to reject the applicant, finding no reasonable apprehension of bias and concluding that the party was entitled to broad discretion in vetting its leadership candidates.

The defendants brought a motion to strike paragraphs in the plaintiffs' amended statement of claim alleging financial improprieties by the individual defendants.

The defendants argued that under Rea v. Wildeboer, these were derivative claims that could not be pursued in a personal oppression action.

The court dismissed the motion, finding that the claims were 'individualized claims' because the plaintiffs sought to adjust the historical earnings of the corporation to determine the fair value of their shares following their alleged wrongful termination.

The court held that in the context of a closely held corporation, there is a defensible basis for overlap between personal and derivative claims.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.

The appellants appealed a summary judgment order, arguing the motion judge erred by granting it despite a viable set-off defence and inconsistently allowing the counterclaim to proceed.

The Court of Appeal dismissed the appeal, finding the motion judge reasonably exercised his discretion.

The appellants had failed to provide evidence of their damages claim after being given a year to do so, leaving only an unsubstantial punitive damages claim.

The Toronto Chief of Police issued an order requiring suspended officers to report twice daily at police headquarters.

The Toronto Police Association filed a policy grievance challenging the reasonableness of the order.

The arbitrator concluded the order was not arbitrable as it fell within the Chief's exclusive statutory authority over operational matters.

The Divisional Court found the arbitrator's decision unreasonable.

The Court of Appeal dismissed the Board's appeal, agreeing that the arbitrator's interpretation of the Police Services Act and the collective agreement was unreasonable, particularly her failure to apply established jurisprudence regarding the balance between management rights and working conditions.

Following the dismissal of her application for judicial review, the applicant opposed an award of costs, arguing the case involved novel human rights issues of public importance.

The Divisional Court rejected this argument, finding the proceeding was a quest for personal vindication arising from fractious collective bargaining, not a public interest matter.

The court awarded the successful respondents $7,500 in costs, discounting their requested amount of $15,000 to exclude expenses related to the involvement of three intervenors.

The appellant brought a motion to vary the order of the motion judge to grant a stay of the Tribunal's decision pending appeal.

The Divisional Court found that the motion judge offered no reasons regarding irreparable harm and thus his decision was not entitled to deference.

Applying the RJR-MacDonald test, the Court found a serious issue to be tried and that the balance of convenience favoured a stay, noting the member had practiced without restriction since 2005.

The motion was granted and a stay was ordered until the appeal hearing date.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her complaint of discrimination and harassment.

The complaint arose from sexist blog posts made by a union president during a labour dispute.

The Divisional Court upheld the Tribunal's decision, finding it reasonable to conclude that the blog posts were not made 'in the workplace' and that the Tribunal appropriately considered the union president's Charter rights to freedom of expression and association when determining the posts did not constitute discrimination with respect to employment.