Michael Swinwood

The Crown applied for summary dismissal of the accused's application alleging institutional bias in relation to cannabis-related charges.

The accused alleged that the history of the Jesuits' involvement with Indigenous peoples created a reasonable apprehension of institutional bias, and that a question posed by Crown counsel during cross-examination regarding the Pope crystallized this bias.

The accused sought a traditional Indigenous circle for resolution of the matters.

The court granted the Crown's application for summary dismissal, finding the underlying application manifestly frivolous and that the accused failed to meet the high threshold for establishing institutional bias.

This decision addresses the issue of costs following the release of the Canada RFD Decision in the Fontaine litigation.

The court considered whether the unsuccessful Respondents should be awarded costs, despite not prevailing on the motion.

The court reviewed the parties’ written submissions and the relevant legal principles, ultimately concluding that there were no exceptional circumstances justifying a costs award to the unsuccessful party.

The court declined to order costs of the hearing.

The requestors brought a motion to summon the former Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat to provide evidence at an upcoming hearing of a Request for Directions (RFD) brought by Canada.

Canada's RFD sought to strike the requestors' own RFD regarding compliance with ancillary orders.

The court dismissed the motion, finding that the former Chief Adjudicator's evidence regarding his conduct or failure to bring an RFD was not relevant to the narrow interpretation and procedural issues raised in Canada's RFD.

The requestors brought a motion seeking answers to 142 questions refused by Canada during an out-of-court cross-examination of a government affiant.

The cross-examination arose in the context of Canada's request for directions to strike the requestors' motion regarding compliance with the Indian Residential Schools Settlement Agreement.

The court largely upheld Canada's refusals on the bases of relevance, proportionality, privilege, and speculation, but ordered Canada to answer six specific questions of fact.

The applicants brought a motion to oppose confirmation of an Assessment Officer's report, effectively appealing the assessment of unpaid legal fees owed to the respondent solicitor.

The applicants argued the Assessment Officer erred by including a second bill, failing to follow precedent regarding complexity, and misapprehending evidence about an earnout provision.

The Superior Court of Justice dismissed the application, finding the Assessment Officer properly followed a prior court order, correctly assessed the complexity of the share transaction, and reasonably concluded the applicants were the authors of their own misfortune regarding the earnout provision.

Costs of $12,500 were awarded to the respondent.

The plaintiffs initiated a class action against numerous governmental and international entities, including Pope Francis and Queen Elizabeth II, alleging harms from COVID-19 protocols and constitutional infringements.

Several defendants moved to dismiss the action under Rule 2.1.01 of the Rules of Civil Procedure.

The court found the statement of claim to be frivolous, vexatious, and an abuse of process due to its rambling nature, irrelevant historical allegations, and lack of specific legal basis for claims.

The action was dismissed in its entirety against all defendants, with no costs awarded.

The parties, former common-law spouses, brought competing motions for summary judgment regarding the ownership of their former home.

The applicant had previously transferred his 50 percent joint interest in the property to the respondent gratuitously to protect it from creditors.

The court found that the gratuitous transfer created a presumption of resulting trust, which the respondent failed to rebut, as an intention to defeat creditors is not conclusive evidence of a gift.

The applicant's motion for a declaration of a resulting trust was granted, and the respondent's motion to dismiss or compel undertakings was dismissed.

However, the applicant was ordered to pay the respondent's substantial indemnity costs of $5,000 due to his conduct in the litigation.

The College of Physicians and Surgeons of Ontario sought costs following successful applications against three physicians who failed to cooperate with regulatory investigations related to COVID-19.

The court rejected arguments that the respondents were public interest litigants or entitled to costs despite partial success.

Costs were awarded to the applicant on a partial indemnity scale against all three respondents, totaling approximately $40,000.

The respondent sought to re-open a previous hearing to advance a constitutional challenge to the Township's zoning by-law, asserting the property is unceded Indigenous territory.

The initial application by the Township for demolition of buildings on the respondent's property had been granted, but the order had not yet been signed, issued, or entered.

The respondent had been self-represented at the original hearing.

The court granted the motion to re-open, finding it was in the interests of justice given the respondent's prior unfamiliarity with court rules, the novelty of the constitutional issue, the lack of prejudice to the applicant (as no enforcement steps had been taken), and the fact that the original order was not yet finalized, allowing for broader judicial discretion.

The Crown sought summary dismissal of five constitutional questions (NCQs) raised by Indigenous respondents charged with various cannabis offences.

The respondents claimed their lands were not part of Canada, that cannabis laws infringed their traditional rights and economic well-being, and that the laws were part of genocide/apartheid, and that the Crown failed in its duty to consult.

The court summarily dismissed four of the five NCQs, finding them non-justiciable or without reasonable prospect of success (sovereignty, genocide/apartheid, economic well-being).

The fifth NCQ, regarding traditional use and trade of cannabis/hemp under s. 35 of the Charter, was not summarily dismissed, but the court ordered further case management due to delays in expert reports.

This is an appeal from the dismissal of a proposed class action and constitutional challenge as frivolous and vexatious under Rule 2.1.01 of the Rules of Civil Procedure.

The underlying action asserted a global conspiracy related to COVID-19, seeking billions in damages from various domestic and foreign entities.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion, legal analysis, or factual findings, and affirmed that the case was a clear instance for applying Rule 2.1.01.

The defendant, Ronald Flom, brought a motion to dismiss or stay the action of the corporate plaintiff, O Cannabis We Stand On Guard for Thee Corporation, for lack of authority, and to consolidate the plaintiffs' Ottawa action with his earlier Toronto action for fees.

The corporate plaintiff discontinued its action shortly before the hearing.

The court found significant overlap between the Ottawa and Toronto actions, arising from the same transaction, and ordered the Ottawa action stayed until the Toronto action's assessment hearing was determined, after which it would be consolidated as a counterclaim in Toronto.

The court also addressed costs, finding the plaintiffs and their counsel jointly and severally liable for substantial indemnity costs due to the unauthorized corporate action and the plaintiffs' failure to accept a reasonable offer to settle.

The applicant sought costs of $15,000 previously fixed by Kimmel J. relating to an injunction granted against the respondents for breaching COVID-19 public health orders.

The respondents argued they should be excused from paying costs as public interest litigants.

The court rejected this argument, finding that by choosing to disobey the law rather than challenge it directly, the respondents engaged in conduct harmful to the public interest.

The respondents were ordered to pay $15,000 in costs.

The College of Physicians and Surgeons of Ontario brought applications to compel three physicians to cooperate with investigations into their practices, particularly concerning the issuance of COVID-19 vaccination exemptions and the dissemination of information.

The physicians refused to cooperate, asserting constitutional rights.

The court dismissed the respondents' adjournment requests and ordered them to comply with the investigations, including providing medical charts and patient information.

The court granted a publication ban on the identities of private physician sources and witnesses but denied a ban on the identities of the College's staff and the Medical Officer of Health, finding that social media comments directed at public officials, while vituperative, did not constitute actual threats of violence justifying such a ban.

The moving parties sought to review an order dismissing their motion to extend time to perfect an appeal of an Independent Review Order concerning St. Anne's Indian Residential School claims.

The Independent Review Order had appointed an independent special advisor to review certain concluded claims.

After the motion was heard, the independent review was completed, and its report approved.

The court found the appeal moot because the factual substratum had disappeared, and there were no grounds to exercise discretion to hear a moot appeal.

Consequently, the review motion was dismissed, and no extension of time to appeal was granted.

The Requestors, former students of St. Anne's Indian Residential School, brought a Request for Directions to determine whether their 2018 civil action against Canada and their former lawyers for professional negligence and breach of the Indian Residential Schools Settlement Agreement (IRSSA) could proceed in the Superior Court of Justice.

Canada argued the claims were exclusively governed by the Independent Assessment Process under the IRSSA.

The court held that the IRSSA did not oust the jurisdiction of the Superior Court of Justice, and the administrative protocol for the IRSSA was procedural, not jurisdictional.

The court directed that the civil action proceed in the Superior Court of Justice.

Following the dismissal of the respondents' motion for Charter damages due to procedural errors, the applicant sought costs for the hearing and for a prior hearing.

The respondents argued they were public interest litigants and no costs should be awarded.

The court rejected this argument, finding that public interest litigants are not entitled to cause wasted costs through basic procedural errors.

The court awarded the applicant $15,000 in partial indemnity costs for the recent hearing and deferred the prior costs pending a determination on the merits.

The respondents brought an interim motion seeking Charter damages and a declaration of invalidity regarding COVID-19 public health regulations that restricted their restaurant operations.

The court dismissed the motion on threshold jurisdictional grounds, finding that the respondents failed to commence an originating process claiming such relief and that their Notice of Motion was procedurally defective.

The court held it had no jurisdiction to grant final Charter damages on an interlocutory motion.

The moving parties, who are Independent Assessment Process (IAP) claimants under the Indian Residential Schools Settlement Agreement, brought a motion requesting that the case management judge recuse himself from hearing their Request for Directions.

The moving parties alleged actual bias or a reasonable apprehension of bias against St. Anne's IAP claimants, the lead moving party personally, and her former counsel.

The court reviewed the history of the proceedings, including numerous prior orders compelling document production from the respondent, and found no evidence of conscious or unconscious bias.

The court concluded that a reasonable and informed person would not apprehend bias, and dismissed the recusal motion with costs.