Administrative Law - ONCA

The appellant, George Bennett, appealed a Superior Court decision that upheld a finding of incapacity by the Consent and Capacity Board regarding his ability to make treatment decisions about antipsychotic medication.

The appellant argued the Board erroneously preferred historical evidence over current evidence and erred in its assessment of his ability to appreciate the benefits of the medication.

The Court of Appeal, stepping into the shoes of the Superior Court, dismissed the appeal, finding no palpable and overriding error in the Board's decision.

The court affirmed that historical medical evidence can properly support an assessment of current capacity and that the Board was entitled to make credibility findings and prefer expert evidence.

The appellants, Wesley Moore and St. Jacobs Carpenter House Inc., appealed an order requiring them to cease operating an unlicensed retirement home.

The core issues were whether their facility met the statutory definition of a "retirement home" under the Retirement Homes Act, 2010, specifically regarding the provision of "care services" (meals and drug administration), and whether the application judge erred in finding an abuse of process or in ordering the cessation of operations.

The Court of Appeal upheld the application judge's findings, confirming that the facility provided at least two care services, including a broad interpretation of "administration of a drug" to encompass assistance.

The court also rejected the abuse of process argument and affirmed the judge's power to issue a cease and vacate order under the Act.

The appeal was dismissed with costs.

The appellant, found not criminally responsible (NCR) for aggravated assault and weapon possession, appealed the Ontario Review Board's decision to continue his detention order at a forensic hospital.

He argued the Board made material factual errors and that he should be granted an absolute discharge.

The Court of Appeal dismissed the appeal, finding that while the Board made mischaracterizations of the evidence, these errors did not impact the reasonableness of its risk assessment or disposition.

The court concluded that the Board understood the correct factual context when its reasons were read as a whole, and that the detention order remained the least onerous and restrictive disposition consistent with public safety, given the appellant's ongoing substance abuse and lack of insight into his mental illness.

The appellants, a group of First Nations, appealed a Divisional Court decision that dismissed their application for judicial review.

They argued that Ontario's revocation of a forest management regulation (MNR-75) and amendments to the Environmental Assessment Act (Bill 197) breached the Crown's duty to consult and the honour of the Crown.

The Court of Appeal upheld the Divisional Court's decision, finding that the duty to consult does not apply to the law-making process (Bill 197) and that the revocation of MNR-75 did not give rise to a duty to consult as the alleged adverse effects were speculative and equivalent protections remained in force through other legally binding instruments.

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 appellant appealed the summary judgment dismissing her two actions against the respondent, alleging misapprehension of evidence, erroneous refusal of an adjournment, and reasonable apprehension of bias.

The Court of Appeal found no error in the motion judge's decision, concluding that the appellant failed to raise a genuine issue requiring a trial and did not establish any error in the exercise of discretion, bias, or procedural unfairness.

This appeal arose from the dismissal of a class proceeding claiming damages against the Crown for negligence related to the presence of Bovine Spongiform Encephalopathy (BSE) in Canada between 2003 and 2008.

The trial judge dismissed the claim, finding it barred by section 9 of the Crown Liability and Proceedings Act, and also that no duty of care was owed and no negligence occurred.

The Court of Appeal upheld the dismissal, focusing solely on the application of section 9.

It found that various government programs providing financial assistance to cattle farmers in response to the BSE outbreak constituted "compensation" under section 9, thereby barring the negligence claim as it sought double recovery for the same factual basis of loss.

Tenzin Norbu appealed a committal order for extradition to the United States on immigration fraud charges and sought judicial review of the Minister of Justice's surrender order.

The alleged scheme involved preparing and selling fraudulent documentation and false narratives to asylum seekers.

The Court of Appeal dismissed both the appeal, finding sufficient identification evidence and evidence for the broader fraudulent scheme, and the application for judicial review, upholding the Minister's decision not to seek assurances regarding potential deportation to China.

This appeal involved a constitutional challenge to Ontario's COVID-19 public health measures, specifically the proof of vaccination requirement enacted by Ont.

Reg 364/20.

The Court of Appeal dismissed the appeal as moot because the provincial government had ceased enforcement and subsequently revoked the Regulation.

The court declined to exercise its discretion to hear the moot appeal, finding no practical effect for the declaratory relief sought and that the claim for nominal damages did not cure mootness.

Concerns about judicial economy and the utility of deciding fact-specific constitutional issues in the absence of a live controversy also weighed against exercising discretion.

The appellant, found not criminally responsible for theft, appealed the Ontario Review Board's decision to continue his detention order with community privileges, seeking an absolute discharge.

The Board found that an absolute discharge would pose a significant public safety threat due to likely medication non-compliance and substance abuse leading to decompensation.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable.

The court rejected arguments that the Board failed to consider the appellant's improvements or misapprehended evidence regarding substance use, emphasizing that appellate review is limited to reasonableness and does not involve reweighing evidence.

Fresh evidence regarding recent decompensation reinforced the Board's conclusion.

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

This appeal addressed whether a Band Council Resolution (BCR) could be enforced as a by-law under the Indian Act.

Hiawatha First Nation sought a permanent injunction to stop three of its members from building a gas station on the reserve, relying on a BCR that imposed a moratorium on new businesses.

The application judge granted the injunction, treating the BCR as a by-law.

The Court of Appeal found that a BCR is distinct from a by-law and does not have the force of law to create rights and duties for band members or third parties under the Indian Act.

The court emphasized that law-making authority under the Indian Act, particularly when affecting proprietary rights, requires adherence to specific by-law formalities.

Consequently, the appeal was allowed, and the injunction based on the BCR was set aside.

The Auditor General of Ontario appealed a lower court decision regarding the interpretation of section 10 of the Auditor General Act, R.S.O. 1990, c.

A.35.

The core issue was whether the Act confers authority on the Auditor General to access and compel disclosure of privileged information (solicitor-client, litigation, and settlement privilege) from a grant recipient, Laurentian University of Sudbury, during a value-for-money audit.

The Court of Appeal dismissed the appeal, affirming that statutory language must demonstrate a clear, explicit, and unambiguous intent to abrogate privilege, and the Auditor General Act's provisions did not meet this high standard.

The appellant, Lynn Larabie, as executrix of her parents' estate, appealed a Superior Court decision that dismissed her application to quash a zoning by-law passed by the Township of Moonbeam.

The by-law rezoned an adjacent property to permit expansion.

The appellant argued the Township failed to provide proper statutory notice under the Planning Act and regulations, and acted in bad faith.

The application judge found the by-law procedurally illegal due to notice failures but exercised discretion not to quash it, finding no bad faith and negligible broader consequences.

The Court of Appeal upheld the application judge's decision, finding no error in the bad faith analysis or the exercise of discretion not to quash the by-law, despite the procedural illegality.

The appellants, a Township and its officials, appealed the dismissal of their anti-SLAPP motion seeking to dismiss a defamation and misfeasance in public office action brought by the respondents, owners of a community newspaper.

The Court of Appeal dismissed the appeal, finding no reviewable error in the motion judge's application of the anti-SLAPP test under s. 137.1 of the Courts of Justice Act, including the weighing of public interest in expression versus harm to reputation, and the assessment of available defences.

The court affirmed that the motion judge correctly applied the legal tests and that anti-SLAPP motions are not the forum for definitive determinations of complex defences.

The appellants, four corporate entities and their principal, appealed a Superior Court decision that confirmed an assessment officer's assessment of four accounts from their former solicitors, totaling $148,120.95.

The appellants argued the assessment officer exceeded jurisdiction, erred in findings, and showed reasonable apprehension of bias.

The Court of Appeal found no error in the reviewing judge's decision, which had applied a deferential standard of review.

The appeal was dismissed.

The appellants, committed to trial for second-degree murder, successfully appealed a judicial review order that had quashed their preliminary inquiry judge's decision and directed committal for first-degree murder.

The Court of Appeal found the reviewing judge erred by substituting his view of the evidence for that of the preliminary inquiry judge, incorrectly identifying jurisdictional errors.

The preliminary inquiry judge had correctly applied the law and did not commit jurisdictional error by finding insufficient evidence for first-degree murder.

The appeal was allowed, the judicial review decision quashed, and the original committal for second-degree murder reinstated.

This appeal concerned the Ontario Review Board's refusal to order a psychiatric assessment for an accused, found not criminally responsible by reason of mental disorder (NCRMD) for double murder, who had been designated a "high-risk accused." The accused sought the assessment to promote an application to the Superior Court to remove his high-risk designation, arguing his progress meant he no longer qualified.

The Court of Appeal dismissed the appeal, affirming the Board's decision.

The Court clarified that the "substantial likelihood" test for reviewing a high-risk designation assesses the accused's inherent risk of violence if not subject to external constraints, not their risk under current supervised conditions.

Given the accused's history and ongoing risk factors, the Board's conclusion that an assessment would not change its determination was reasonable.

The Court also noted the Board's error in applying an "onus" on the accused in inquisitorial proceedings, though found it non-prejudicial.

The College of Massage Therapists of Ontario appealed a Divisional Court decision concerning a discipline committee order.

The appeal became moot when the respondent accepted the licence revocation.

The Court of Appeal declined to hear the appeal on its merits to set a judicial precedent, citing the absence of an adversarial context and the inappropriate use of judicial resources for an issue without practical consequences for both parties.

By consent, the Court reinstated the original order of the Discipline Committee.

The Society of United Professionals appealed a Divisional Court decision affirming the Ontario Labour Relations Board's (OLRB) rulings regarding New Horizon System Solutions' refusal to disclose a Master Services Agreement (MSA).

The Society alleged violations of ss. 17 (duty to bargain in good faith) and 70 (interference with union representation) of the Labour Relations Act, 1995.

The Court of Appeal upheld the Divisional Court's finding that the OLRB's decisions were reasonable, concluding that the MSA was not necessary for the Society to carry out its representational duties under s. 70 and that the s. 17 application was premature when initially brought.

The court also found the OLRB's partial disclosure order under s. 17 and its reliance on counsel's representation regarding a specific MSA article to be reasonable.