Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240410 DOCKET: COA-23-CV-0585

Roberts, George and Monahan JJ.A.

BETWEEN

Grace Foster Plaintiff (Appellant)

and

His Majesty the King in Right of Ontario (as represented by the Ministry of Children, Community & Social Services), Premier Doug Ford, and Minister Todd Smith Defendants (Respondent)

Grace Foster, acting in person Laura Brazil, for the respondent

Heard: March 26, 2024

On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice, dated April 13, 2023.

Reasons for Decision

[1] The appellant appeals the summary judgment granted by the motion judge, dismissing her two actions against the respondent. She submits that the motion judge misapprehended the evidence and erred in refusing her adjournment request and in granting summary judgment. The appellant moreover argues that the motion judge’s actions give rise to a reasonable apprehension of bias and resulted in an unfair hearing.

[2] We see no basis to intervene with the motion judge’s decision.

[3] The appellant alleges that the respondent enabled or facilitated her landlord to place audio and video recording devices in her apartment and that the respondent shared recordings taken of her with others. She maintains that the respondent’s alleged actions breached her rights under the Human Rights Code, R.S.O. 1990, c. H. 19, and the Charter of Rights and Freedoms. To obtain evidence in support of her allegations, she brought requests for release of various documents under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”), which were subsequently released to her.

[4] The motion judge found that there was no evidence to substantiate the appellant’s allegations about the placement of audio and video recording devices, either from her or the respondent. As the motion judge noted, the appellant put forward no affidavit evidence sufficient to make out her allegations and, in cross-examination, the appellant declined to answer how she discovered surveillance equipment in her apartment. Moreover, she was unable to confirm the identity of the person who allegedly told her that there were cameras in her apartment. The motion judge accepted the respondent’s evidence that the responses to the appellant’s FIPPA requests were adequate and thorough and that there was nothing in the documents reviewed pursuant to the appellant’s FIPPA requests to suggest any irregularities, misconduct, privacy breaches, or anything else to support the appellant’s allegations and, in particular, nothing about surveillance equipment being installed in the appellant’s apartment. The motion judge declined to allow the appellant’s request for an adjournment to call the Ombudsman of Ontario as a witness. He was not persuaded that the Ombudsman would be able to offer any relevant evidence of camera and audio recordings in her apartment.

[5] Concerned about the appellant’s statements during the hearing of the motion that she would end her life if summary judgment were granted, the motion judge appointed amicus curiae for the purpose of advising the court how to proceed. Prior to the release of his reasons, amicus advised the court that the appellant was hospitalized. Following amicus’ recommendation, the motion judge released his reasons on the summary judgment motion while the appellant was hospitalized and had the support of hospital staff and physicians in order to minimize the possibility of her self-harm.

[6] We see no error in the motion judge’s disposition of this matter. The appellant has raised no error of fact or law that would require intervention by this court. It was open to the motion judge to make the findings he did based on the record before him. While the appellant submitted evidence, the motion judge was not satisfied that this evidence raised a genuine issue requiring a trial. That was his decision to make. Similarly, she has not persuaded us that he erred in the exercise of his discretion not to grant the adjournment. Nor has she established that there was any reasonable apprehension of bias or procedural unfairness. The record demonstrates that the motion judge showed particular sensitivity to the appellant’s circumstances and treated the appellant with courtesy and respect.

[7] The appeal is dismissed. No costs were requested. There shall be no order as to costs.

“L.B. Roberts J.A.”

“J. George J.A.”

“P.J. Monahan J.A.”