Neil Finkelstein

The defendant, Her Majesty The Queen in Right of Ontario, brought a motion to stay an order dated August 4, 2017.

Following the Divisional Court's dismissal of Ontario's motion for leave to appeal on October 3, 2017, the Superior Court of Justice dismissed the motion to stay as moot.

Costs of the motion were reserved to the disposition of the defendants' motions for summary judgment.

The defendants, Ontario and OLG, brought motions to quash summonses to witness served by the plaintiffs on 13 non-parties, including former and current Cabinet ministers, in advance of pending summary judgment motions.

The plaintiffs sought to examine these witnesses under Rule 39.03 regarding the cancellation of the Slots at Race Tracks Program (SARP).

The court held that the defendants had standing to challenge the summonses and that the plaintiffs had met the low threshold of showing the proposed witnesses might have relevant evidence.

The court rejected arguments that the examinations were an abuse of process or barred by Cabinet confidentiality at this stage.

However, the court quashed the summonses served on Premier Kathleen Wynne and Minister Ted McMeekin on the basis of parliamentary privilege, as they were sitting members of the legislature.

Her Majesty the Queen in Right of Ontario (HMQ) sought an order to enforce an agreement between counsel to delay examinations under Rule 39.03 pending a motion to quash summonses, or alternatively, to stay the summonses.

The court applied the RJR MacDonald test for a stay, finding a serious issue to be tried regarding the quashing of summonses and the standing of HMQ/OLG to quash summonses for unrepresented witnesses.

The court determined that proceeding with examinations would cause irreparable harm to HMQ's legal interests by rendering the motion to quash moot.

The balance of convenience favoured HMQ, and the motion to stay the summonses was granted.

A proposed class action brought by injured workers who were denied full non-economic loss benefits under the Workplace Safety and Insurance Act on the basis of asymptomatic pre-existing conditions.

The plaintiff alleged that the denials resulted from an internal policy illegally adopted to save money.

The action was pleaded in misfeasance in public office, bad faith, and negligence.

The motion judge struck the statement of claim as disclosing no cause of action, finding the claims fell within the privative clause.

The Court of Appeal allowed the appeal, holding that the misfeasance in public office and negligence claims were properly pleaded and not plainly barred by the privative clause.

Bad faith was found not to be a free-standing cause of action but rather an element of misfeasance in public office.

The moving parties sought leave to appeal a decision dismissing their motion to disqualify the respondents' counsel of record due to an alleged conflict of interest.

The conflict allegation arose after an associate lawyer, who previously worked at the law firm representing the moving parties, joined the law firm representing the respondents.

The court applied the test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decision to satisfy Rule 62.02(4)(a) and no reason to doubt the correctness of the motion judge's order or any matter of general importance to satisfy Rule 62.02(4)(b).

The motion for leave to appeal was dismissed with costs awarded to the respondents.

In a proposed pharmaceutical products liability class proceeding, the defendants moved for summary judgment before certification.

The plaintiffs alleged that a testosterone gel caused serious cardiovascular events, was improperly marketed for age-related low testosterone, and generated claims in negligence, failure to warn, unjust enrichment, waiver of tort, and pure economic loss.

The court held that although the evidence established an association and biological plausibility, it did not establish general causation on a balance of probabilities.

The court further held that an association may trigger a duty to warn, but any failure-to-warn claim still failed because causation was not proven.

The claims for unjust enrichment, waiver of tort, and pure economic loss also failed factually and legally, and the action was dismissed.

The appellant appealed a Divisional Court decision that set aside an Environmental Review Tribunal's revocation of a Renewable Energy Approval for a wind farm project.

The Tribunal had found the project would cause serious and irreversible harm to the Blanding's turtle due to increased road mortality.

The Court of Appeal held the Divisional Court erred in its standard of review application, finding the Tribunal's decision on serious and irreversible harm was reasonable despite lacking precise numerical data.

However, the Court of Appeal agreed the Tribunal erred in revoking the approval without allowing the parties to make submissions on the appropriate remedy.

The matter was remitted to the Tribunal to determine the remedy.

The appellant municipality appealed the dismissal of its application for judicial review of a ministerial order prohibiting public access to certain Crown lands adjacent to Bala Falls for safety reasons.

It argued that the site was subject to a protected portage under s. 65(4) of the Public Lands Act and that s. 3 required the frontage to be set aside for recreational and access purposes.

The court held that s. 28 of the Public Lands Act is not subject to ss. 3 or 65(4), and that the minister's decision to restrict access was reasonable given the public safety concerns.

The court also held that the common law right of navigation does not include a right to portage over another's land.

The appeal was dismissed with costs to each respondent.

The appellant union challenged the employer's unilaterally imposed mandatory random alcohol testing policy at a paper mill.

The arbitration board allowed the grievance, finding the policy unjustified absent evidence of a workplace alcohol problem.

On judicial review, the board's decision was set aside, and the New Brunswick Court of Appeal dismissed the union's appeal.

The Supreme Court of Canada (6-3) allowed the appeal, holding the arbitration board's decision was reasonable.

The majority found the board properly applied the established arbitral "balancing of interests" test, which requires evidence of enhanced safety risks to justify random testing.

The dissent would have found the board's decision unreasonable for departing from the arbitral consensus on the evidentiary threshold without explanation.

The moving parties sought a stay of an arbitration proceeding pending appeals from arbitration panel decisions concerning jurisdiction and party participation.

The dispute arose from an agreement granting the respondent First Nations partnership a right to have a nominee appointed to the board of the Ontario Lottery and Gaming Corporation.

The moving parties argued the arbitration panel lacked jurisdiction due to the Crown prerogative over appointments and that the exclusion of the corporation from the arbitration violated natural justice.

Applying the tripartite test for a stay from RJR‑MacDonald, the court found serious issues on appeal regarding jurisdiction, irreparable harm to the public interest if arbitration proceeded prematurely, and that the balance of convenience favoured the moving parties.

The court therefore stayed the arbitration pending determination of the appeals.

The appeal addressed whether a federal regulator had statutory authority to implement a market-based regime requiring negotiations over compensation for retransmission of local television signals.

The majority held the proposed regime exceeded statutory authority and conflicted with the copyright scheme governing retransmission rights and exceptions.

The dissent would have found a sufficient statutory basis and no operational conflict between the two statutes.

The appeal was allowed, with costs throughout.

In an appeal from judicial review of a copyright tariff ruling, the Court examined whether teacher-made classroom photocopies qualified as fair dealing for research or private study under s. 29 of the Copyright Act.

The majority held the tribunal unreasonably applied key fairness factors by separating teacher and student purposes, assessing amount on aggregate copying rather than excerpt-to-work proportion, treating additional textbook purchases as a practical alternative, and inferring market harm without an adequate evidentiary link.

Applying reasonableness review, the Court concluded the unfairness determination could not stand and remitted the matter for reconsideration.

A dissent would have deferred to the tribunal’s multifactor factual assessment and would have upheld the result despite one flawed effect-of-the-dealing finding.

The applicant, a former employee and pension plan member, sought an order compelling the employer to commence proceedings to wind up the pension plan under s. 68(1) of the Pension Benefits Act.

The employer brought a motion to strike these claims, which was dismissed by the motion judge and the Divisional Court.

On appeal, the Court of Appeal allowed the appeal and struck the claims, holding that based on the Supreme Court's decision in Buschau, the court does not have jurisdiction to compel an employer to wind up a pension plan at the request of plan members.

Doing so would circumvent the statutory scheme and usurp the authority of the Superintendent of Financial Services.

The CRTC ordered telecommunications carriers to create deferral accounts from urban residential telephone service revenues.

It later directed that these funds be used to improve accessibility for persons with disabilities, expand broadband coverage, and distribute remaining amounts to subscribers as credits.

Bell Canada, TELUS, and consumer groups appealed the CRTC's authority to make these allocations.

The Supreme Court of Canada dismissed the appeals, holding that the CRTC's creation and use of the deferral accounts was a reasonable exercise of its rate-setting authority under the Telecommunications Act, which requires it to balance the interests of consumers, carriers, and competitors while implementing national telecommunications policy objectives.

The moving parties (defendants) sought an extension of time to seek leave to appeal an order denying them leave to appeal a class action certification order.

The moving parties argued that a recent Saskatchewan Court of Appeal decision quashing a similar class action created conflicting decisions.

The Court of Appeal for Ontario held that if the order denying leave was final, the appeal lay to the Court of Appeal as of right, and if interlocutory, to the Divisional Court with leave.

The court granted an extension of time to file a notice of appeal to the Court of Appeal, leaving the determination of whether the order was final or interlocutory to a panel of the court.

The defendants appealed a motion judge's decision refusing to stay an Ontario multi-jurisdictional class action in favour of a similar Saskatchewan class action that had been certified earlier.

The defendants argued that the principles of comity and full faith and credit constitutionally required the Ontario court to defer to the Saskatchewan certification order.

The Divisional Court dismissed the appeal, holding that the motion judge was not bound to stay the proceeding, particularly given a prior Ontario carriage decision that found the plaintiffs' counsel in the Saskatchewan action unsuitable to represent a national class.

The court also found that permitting two overlapping multi-jurisdictional class actions to proceed did not constitute an abuse of process.

The appellant banks sought a declaration that their promotion of certain insurance products authorized by the federal Bank Act was immune from Alberta's Insurance Act, which required them to obtain a provincial license.

The Supreme Court of Canada held that the provincial legislation was valid under the province's property and civil rights power.

The Court rejected the application of interjurisdictional immunity, finding that the promotion of insurance is not vital or essential to the core of banking.

The Court also found no operational conflict or frustration of federal purpose to trigger the doctrine of federal paramountcy.

The appeal was dismissed, meaning the banks must comply with the provincial insurance regulations.

The appellant consented to the dismissal of the appeal on the basis that there would be no costs in the Court of Appeal or the court below.

The Court of Appeal ordered the dismissal on consent.

The former chauffeur to the Speaker of the House of Commons filed discrimination and harassment complaints with the Canadian Human Rights Commission after his position was declared surplus.

The Speaker and the House of Commons challenged the Commission's jurisdiction, claiming parliamentary privilege over the management of employees.

The Supreme Court of Canada held that the appellants failed to establish a broad parliamentary privilege immunizing all employee relations from external review.

However, the Court ruled that the employee was required to pursue his complaints through the grievance procedure established under the Parliamentary Employment and Staff Relations Act, which ousted the jurisdiction of the Canadian Human Rights Commission for this dispute.

The appellant Canadian Cable Television Association (CCTA) sought access to the power poles of the respondent provincially regulated electric power utilities to support cable television transmission lines.

The CRTC ordered the utilities to grant access, interpreting 'the supporting structure of a transmission line' in s. 43(5) of the Telecommunications Act to include the utilities' power poles.

The Federal Court of Appeal reviewed the decision on a correctness standard and held that s. 43(5) does not give the CRTC jurisdiction over the power poles of provincially regulated electric power companies.

The Supreme Court of Canada dismissed the appeal, confirming that the standard of review is correctness and that s. 43(5) cannot bear the broad meaning given to it by the CRTC.