Human Rights - ONCA

The Centre for Free Expression (CFE) sought leave to intervene as a friend of the court in a civil appeal arising from the dismissal of a motion under s. 137.1 of the Courts of Justice Act (Ontario) in a defamation action.

The Court of Appeal for Ontario, per Roberts J.A., dismissed the motion for intervention, finding that while CFE had a clear mandate and interest in freedom of expression issues, its proposed submissions would not provide a distinct or useful contribution beyond those of the parties.

The court emphasized that intervention is to be granted sparingly, particularly in private disputes, and that the issues raised by CFE were already adequately addressed by the parties.

The Court of Appeal for Ontario dismissed the appeal of law enforcement agencies found liable for the negligent arrest and detention of two senior citizens at the Canada/U.S. border, based on inaccurate information in the Canadian Police Information Centre (CPIC) system.

The court held that, in the circumstances, the officers were required to verify the CPIC information before arresting the respondents.

The decision clarifies that the standard of care for police officers incorporates criminal law standards and that, depending on the context, officers may be required to verify database information before acting.

The court also rejected arguments that the law had changed since the incident or that the trial judge applied an inappropriately high standard.

This addendum to the Court of Appeal for Ontario’s decision in Hillier v. Ontario addresses the appropriate constitutional remedy for unjustified limits on peaceful assembly rights under the Charter during the COVID-19 pandemic.

The court discusses the principles of “reading in” and “reading down” as remedial tools, ultimately preferring reading down the impugned regulations to exclude peaceful outdoor protests of up to 10 people from the prohibition on gatherings.

The court’s approach is guided by Supreme Court authority and the need to respect legislative intent while vindicating Charter rights.

The Court of Appeal for Ontario considered when a gender affirming surgery, specifically a vaginoplasty without penectomy, qualifies as an insured service under the Ontario Health Insurance Plan (OHIP).

The court held that vaginoplasty is a specifically listed insured service in the Schedule of Benefits, regardless of whether it is accompanied by a penectomy, and that the exclusion for experimental procedures does not apply to specifically listed services.

The appeal by the General Manager of OHIP was dismissed.

The Court of Appeal for Ontario allowed Randy Hillier’s appeal, finding that Ontario’s absolute ban on outdoor peaceful assembly during the COVID-19 pandemic was not demonstrably justified under section 1 of the Charter.

The court held that the government failed to consider the impact of the gathering limits on the right to peaceful assembly under section 2(c) and did not tailor the restrictions to accommodate this fundamental freedom, unlike the approach taken for religious gatherings.

The decision clarifies the independent constitutional status of peaceful assembly and the necessity for governments to justify limits on this right, especially in the context of political protest.

The appellant was convicted of sexual assault and appealed both the conviction and the sentence.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's assessment of evidence or consent analysis.

However, the court allowed the sentence appeal, finding that the trial judge erred in dismissing the appellant's s. 11(b) Charter application regarding post-conviction delay.

The court found the delay unreasonable, specifically rejecting the trial judge's characterization of immigration complexity and minor technical issues as exceptional circumstances.

As a remedy for the Charter breach, the conditional sentence was reduced from two years less a day to 20 months, as a conditional discharge was deemed unfit given the serious nature of the offence.

The applicant sought a review of a motion judge's decision that dismissed her motion to extend the time to perfect her motion for leave to appeal from a Divisional Court order.

The Divisional Court had dismissed her application for judicial review of a Human Rights Tribunal of Ontario decision.

The Court of Appeal found no error in the motion judge's decision, noting unacceptable delay and lack of merit in the proposed appeal, as the underlying Human Rights Tribunal decision was fact-based and the Divisional Court found no question of law warranting intervention.

The review motion was dismissed.

This appeal concerns a partial stay of proceedings granted by a trial judge due to Charter violations arising from an unauthorized "no-knock" police entry into the accused's residence to effect an arrest.

The Court of Appeal found the trial judge erred in granting a partial stay based on a factual misapprehension and in rejecting alternative remedies.

The Court concluded that while the police misconduct was serious, a stay was not warranted given the lack of evidence of a systemic problem and the availability of alternative remedies like a strong judicial reprimand and potential sentence reduction.

The Crown's appeal was allowed, vacating the stay, and the accused's cross-appeal was dismissed.

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.

The appellant was convicted of various firearms offences.

He appealed, arguing that the trial judge erred in finding that the arresting officer had reasonable and probable grounds to arrest him for drug trafficking, which led to an arbitrary detention and an unlawful search incident to arrest, and that the evidence (a sawed-off shotgun and ammunition) should have been excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that there were reasonable and probable grounds for the arrest.

The court emphasized that the assessment of reasonable and probable grounds proceeds from a holistic consideration of all facts, including prior surveillance of a suspected drug trafficker, a drug overdose in the hotel room, and the suspicious conduct of the appellant and his associate, Ms. Gaspari.

The court found the trial judge's reasoning for the arrest was sound, making it unnecessary to address the s. 24(2) Charter argument.

The appellants (Crown) appealed a Divisional Court order that declared the Math Proficiency Test (MPT) unconstitutional for infringing s. 15(1) of the Charter due to disproportionate adverse impact on racialized teacher candidates, and found it not justified under s. 1.

The Court of Appeal found that the Divisional Court erred by relying on incomplete and preliminary data (July 2021 Data) to conclude a disproportionate adverse impact.

The Court of Appeal, reviewing more complete data (December 2021 Data), determined that the MPT did not have a disproportionate adverse impact on racialized candidates' entry to the teaching profession, nor did it reinforce existing disadvantages.

The appeal was allowed, and the Divisional Court's order, including the declaration that s. 18(1)(c) of the OCTA was unconstitutional, was set aside.

Kevin Tran appealed his convictions for narcotics, proceeds of crime, and firearm offences.

He argued that the verdicts were unreasonable, the trial judge erred in not excluding evidence under s. 24(2) of the Charter, and the trial judge erred in not staying proceedings due to unreasonable delay under s. 11(b).

The Court of Appeal dismissed all grounds of appeal, finding the verdicts reasonable, the s. 24(2) decision correct (despite an unconstitutional warrant, evidence was admissible due to good faith), and the s. 11(b) delay justified by exceptional circumstances related to a joint trial.

The appellant appealed a lower court decision that struck her claim, which alleged defamation, constructive discrimination, and harassment, without leave to amend.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the claim failed to provide adequate notice, clearly identify causes of action, or set out material facts.

The Court also deferred to the motion judge's refusal to grant leave to amend and the costs award.

The appeal was dismissed with costs awarded to the respondent.

The appellant, Alexander Shaulov, appealed the dismissal of his claims against the Law Society of Ontario (LSO) and other respondents, and sought leave to appeal a costs order.

Shaulov, a prospective lawyer, was removed from the LSO's licensing process after failing the Barrister Licensing Examination multiple times.

He sued, alleging discrimination under the Canadian Charter of Rights and Freedoms and the Human Rights Code, and challenging the LSO's processes.

The motion judge dismissed most claims.

The Court of Appeal partially allowed the appeal, granting leave to amend the discrimination claims against the LSO and remitting the administrative law claims for determination of dismissal under Rule 21.01(1)(b).

The appeal from the costs order was dismissed.

The Durham Regional Police Services Board and Christopher Delaney appealed a Divisional Court decision that found the Human Rights Tribunal of Ontario's (HRTO) decisions unreasonable.

The HRTO had ruled that a settlement agreement for a second human rights application also settled a prior, undecided first application by Joseph Briggs, and subsequently cancelled a favourable decision for Briggs on the first application as an abuse of process.

The Divisional Court reversed the HRTO, finding its interpretation of the settlement unreasonable and deciding the matter itself rather than remitting it.

The Court of Appeal upheld the Divisional Court's finding that the HRTO's decision was unreasonable due to its narrow interpretation of the factual matrix and exclusion of relevant evidence (Form 25).

The Court of Appeal also affirmed the Divisional Court's discretion to decide the matter rather than remitting it, citing the inordinate delay and the binary nature of the issue.

The appeal was dismissed, confirming that the settlement did not cover the first application.

The appellants, Daye, Isaac, and Saunders, appealed their drug-related convictions.

Isaac also sought leave to appeal his sentence.

The Court of Appeal dismissed all appeals from conviction, finding no errors in the trial judge's rulings regarding Charter breaches (s. 10(b), s. 9, s. 11(b)), refusal to permit cross-examination of the affiant, or the issuance of search warrants.

The court also found Saunders' conviction for constructive possession reasonable.

However, Isaac was granted leave to appeal his sentence, and his six-year global sentence was reduced to four years, as the trial judge failed to adequately consider his de facto guilty plea.

The appellant, Rayon Williams, appealed his convictions for possession of controlled substances for the purpose of trafficking, raising three grounds: errors in finding no ss. 9 and 8 Charter breaches regarding his arrest and vehicle search, and an error in jury instruction concerning sunglasses found with the drugs.

The Court of Appeal dismissed the appeal, finding the trial judge correctly determined reasonable and probable grounds for the arrest and search based on corroborated confidential informant information and police investigation.

The court also found no error in the jury instruction, as the sunglasses issue was not central and lacked sufficient evidentiary support.

The appellant, Feisal Noor, appealed his conviction on firearms-related charges, arguing that his s. 9 Charter right against arbitrary detention and s. 8 Charter right against unreasonable search and seizure were violated.

The Court of Appeal upheld the trial judge's findings that the police had reasonable suspicion for an investigative detention and that the handgun was found in plain view during a lawful struggle, thus dismissing the Charter application and affirming the conviction.

The appellant appealed a summary judgment dismissing his claim for constructive dismissal and other related relief.

The Court of Appeal found no error in the motion judge's decision to focus on the constructive dismissal claim, as it was central to all other claims (intentional infliction of mental distress, human rights violation, punitive damages).

The court also upheld the motion judge's refusal to grant an adjournment and her approach to summary judgment, noting that the employer had made reasonable efforts to accommodate the appellant, which were frustrated by the appellant's non-compliance.

The appeal was dismissed, and costs were awarded to the respondent.

Roch Longueépée, largely successful in his appeal, sought partial indemnity costs from the University of Waterloo and the Human Rights Tribunal of Ontario (HRTO).

The Court of Appeal for Ontario found Longueépée entitled to costs against the University, fixing them at $25,000.

The court also awarded costs against the HRTO, fixed at $7,500, because its arguments on the standard of review and request for a five-judge panel expanded the scope of the appeal, even though its position was not taken in bad faith.