Michael Sims

Following the dismissal of the plaintiff's action against Ontario for historical sexual assault by a participant in the Witness Protection Program, Ontario sought costs of over $516,000 on a partial indemnity basis.

The plaintiff argued no costs should be awarded due to the nature of the claim and the Victims' Bill of Rights.

The court rejected the plaintiff's argument that victims of sexual assault should be presumptively shielded from costs when unsuccessful, but considered the plaintiff's good faith and the need for proportionality.

Costs were fixed at $275,000.

The parties settled a civil appeal and an associated motion to produce fresh evidence.

On consent, the Court of Appeal dismissed both proceedings with prejudice and without costs.

As part of the settlement, Ontario undertook not to enforce the $3,000 costs award made below.

The court directed that the order issue on consent in accordance with the settlement terms.

The plaintiff alleged she was sexually assaulted while in the Witness Protection Program and sought damages against Ontario on theories of negligence, breach of fiduciary duty, and breach of contract.

The court found on a balance of probabilities that the sexual assault occurred, but held that the protection team’s private duty of care was limited to protection from the identified outside threat and that no breach of the applicable standard of care was proven, particularly in the absence of expert evidence on the Witness Protection Program standard of care in 1987.

The court further held that legal causation and foreseeability were not established, and rejected the fiduciary and contract claims.

In an alternative assessment, the court would have awarded damages for psychological harm from the assault, but not for COPD, income loss, or housekeeping claims.

The appellant sought a stay pending appeal of an application judge's decision dismissing its application for a declaration that the modified version of its GotSkill? game was not a game of mixed chance and skill under the Criminal Code.

The appellant also sought injunctive orders preventing enforcement of a bulletin issued by the respondent requiring liquor licensees to cease operating the game.

The motion judge dismissed the motion, finding that while there was a serious issue to be tried and the appellant would suffer irreparable harm, the balance of convenience favoured the respondent due to the public interest in enforcing gambling and alcohol regulations designed to protect minors and vulnerable individuals.

The applicant sought judicial review of the Registrar of the Alcohol and Gaming Commission of Ontario's determination that the modified version of GotSkill, an electronic terminal game, remains a game of mixed chance and skill under section 197(1) of the Criminal Code.

The applicant had modified the game following the 2019 Court of Appeal decision in Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), which found the original version to be a game of mixed chance and skill.

The court upheld the Registrar's decision, finding that despite modifications allowing players to view the next five potential wins, the game continues to involve a systematic resort to chance by inducing players to wager money in hopes of uncovering valuable prizes in future rounds.

The applicant sought judicial review of a Ministry determination that it owed refunds to three students because an instructor lacked the requisite qualifications under the Private Career Colleges Act.

The applicant argued the Ministry failed to consider evidence establishing the instructor's qualifications during an internal review.

The Divisional Court dismissed the application, finding that the evidence was submitted after the internal review decision had already been made, and the Ministry's refusal to reconsider the matter a second time was reasonable and did not breach procedural fairness.

The applicant sought judicial review to quash two Orders in Council (OICs) related to the expropriation of its lands for a transit-oriented community project.

The first OIC designated the lands as transit-oriented community land, removing the right to a hearing of necessity, while the second authorized the expropriation.

The Divisional Court dismissed the application, applying the Auer framework to find that both OICs were reasonably within the scope of authority delegated by the enabling legislation.

The court rejected arguments that the OICs were arbitrary, discriminatory, unnecessary, or made in bad faith.

The appellant appealed orders striking out two applications, arguing they failed to disclose a reasonable cause of action, were improperly commenced, and that the motion judge demonstrated a reasonable apprehension of bias.

The Court of Appeal dismissed the appeals, finding no error in the motion judge's conclusions on all grounds.

The appellant, a lawyer, sought declarations and mandamus to compel the production of aggregated civil trial data from the Ontario Ministry of the Attorney General (MAG) for research purposes, after his initial requests were denied by MAG and the Chief Justice of the Superior Court.

The application judge denied the requests, finding that declaratory relief would serve no practical purpose and that the open court principle did not extend to requiring the aggregation of bulk data.

On appeal, the Court of Appeal dismissed the appeal, upholding the application judge's discretionary decision to deny the declarations on the basis that they would serve no practical purpose.

The court emphasized that control over judicial information rests with the judiciary, not MAG, rendering declarations against MAG ineffective.

The Attorney General of Canada was initially named as a respondent but the application against it was abandoned.

The appellant, Neighbour’s Drug Mart Ltd., appealed the Divisional Court's dismissal of its judicial review application.

The original decision by the Executive Officer of the Ontario Public Drug Programs terminated Neighbour’s Health Network System Agreement, revoked its billing privileges under the Ontario Drug Benefit Act, and suspended its entitlement to payment due to false or unsubstantiated claims.

Neighbour’s argued the Divisional Court erred by misapprehending the record, imposing an unsupported sanction, and creating absolute liability.

The Court of Appeal dismissed the appeal, finding no reversible error in the Divisional Court's application of the reasonableness standard or its conclusions regarding the owner's responsibility and the regulatory scheme's honour system.

The court also rejected the argument that the Executive Officer's consent to a change of control precluded subsequent termination, emphasizing the new owner's assumption of all liabilities.

The applicant municipality sought declarations and advisory opinions from the Superior Court of Justice regarding a perceived conflict between its statutory duty to maintain highways under the Municipal Act, 2001, and its obligations to protect endangered species and their habitats under the Endangered Species Act, 2007.

The municipality faced charges under the ESA for road maintenance activities that allegedly harmed the mottled Duskywing butterfly and its habitat, arguing it was impossible to comply with both statutes simultaneously.

The court dismissed the application, finding the issues were not ripe for declaratory relief because the municipality had not availed itself of the permit process provided under the ESA, nor had it fully tested its defenses in the ongoing provincial prosecution.

The appellants appealed their convictions for offences under the Fish and Wildlife Conservation Act and Fishing Licensing Regulation, specifically concerning the interpretation of an exemption related to buying baitfish for commercial purposes without a license.

The Court of Appeal upheld the lower court's decision, finding that the exemption in s. 32(1) of the Regulation applies only to the general prohibition in s. 51(1) of the FWCA, not to the specific commercial baitfish prohibition in s. 31.3(1)(b) of the Regulation.

The court also rejected a due diligence/mistake of fact defence, reiterating that misinterpretation of law is not a valid defence.

The applicant sought declarations and an order of mandamus to compel the Attorney General of Ontario to provide statistical data and court file numbers related to civil trials.

The court dismissed the application, finding that the open court principle does not extend to requiring the aggregation and generation of such bulk data, and that the Attorney General lacked the authority to provide the information, as it rests exclusively with the court.

The court also denied the applicant's request to transfer the application to the Divisional Court for judicial review, citing procedural deficiencies and lack of jurisdiction.

The appellants sought to consolidate two leave to appeal proceedings before the Court of Appeal, arising from regulatory action by the Chief Animal Welfare Inspector concerning sled dogs.

The first leave application related to the legality of dog removal and compliance orders, while the second concerned a statement of account for dog care costs.

The court applied Rule 6.01(1) of the Rules of Civil Procedure, finding a common factual origin but distinct legal questions.

The motion judge dismissed the consolidation request, concluding that the balance of convenience did not favour consolidation, as there was little efficiency to be gained in written leave applications and the potential prejudice to the respondent outweighed marginal benefits.

The Superintendent of Private Career Colleges sought a restraining order against Island Air Flight School & Charters Inc. for allegedly operating as an unregistered private career college and offering vocational programs in contravention of the Private Career Colleges Act, 2005.

The court found that Island Air did violate the Act by providing vocational training until August 2019, but not thereafter.

The court declined to issue a restraining order, exercising its discretion based on the lack of reasonable grounds to believe future violations would occur, the absence of public safety or significant consumer protection concerns, and the availability of adequate alternative remedies under the Act.

Following a hearing, the parties agreed that there would be no order as to costs.

The Divisional Court endorsed the agreement, making no order as to costs.

The applicants raised a preliminary objection seeking the recusal of Leiper J. from the panel on the basis of a reasonable apprehension of bias.

The applicants argued that Leiper J.'s involvement in two prior decisions involving the same parties, including a refusal to grant a stay that was later partially reversed by the Court of Appeal, met the threshold for disqualification.

The Divisional Court dismissed the objection, finding that the applicants failed to meet the heavy burden of rebutting the strong presumption of judicial impartiality, noting that prior involvement alone does not establish bias and there were no allegations of improper conduct.

The moving parties, operators of a dog-sledding business, sought to set aside a single judge's decision refusing to extend a stay of an Animal Care Review Board costs order regarding the care of their removed dogs.

The Divisional Court panel dismissed the motion, finding no error in the motions judge's balance of convenience analysis, which heavily weighed the mounting public costs of caring for the dogs.

The panel also rejected a request to disqualify one of its members based on prior involvement in a related judicial review, and admitted but gave no weight to fresh evidence of a new statutory application for the dogs' return.

The applicants brought a motion to set aside a previous decision and to admit fresh evidence.

The Divisional Court reserved its decision on the motion.

However, the court ordered that the stay of the Animal Care Review Board's decision be continued pending the release of the court's decision on the motion.

The parties were also directed to advise the court of any resolution reached at an upcoming board hearing.

The moving parties sought to continue a stay of an Animal Care Review Board decision requiring them to pay $505,760 in boarding costs for 200 sled dogs seized under the Provincial Animal Welfare Services Act.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried and irreparable harm (forfeiture of the dogs), the balance of convenience favoured the respondent.

The court noted the mounting public cost of boarding the dogs, estimated at $4 million, and the moving parties' inability to pay.

The motion to continue the stay was dismissed.