Padraic Ryan

The moving parties brought a motion to reopen their appeal after the Ontario government passed legislation repealing the statutory provisions at issue.

The moving parties argued that the repeal was an attempt to evade constitutional scrutiny and render the remitted rehearing moot.

The Court of Appeal dismissed the motion, holding that it was premature to conclude the remitted issues were moot, as the application judge retains discretion to hear the matter.

The Court emphasized that the application judge has the institutional advantage to make the necessary factual findings on the expanded Charter claims.

The applicant, Valero Energy Inc., brought a motion in its application for judicial review seeking an order to compel the respondents to produce a further record of proceedings, including internal Cabinet and Ministerial documents.

The underlying application challenges a regulation imposing domestic renewable content requirements for fuels.

The Divisional Court dismissed the motion, finding that the Judicial Review Procedure Act does not require a record of proceedings for a challenge to a regulation, as making a regulation is not a 'statutory power of decision'.

The court declined to exercise its inherent jurisdiction to order production, noting that judicial review of a regulation is a limited exercise in statutory interpretation and does not afford a right to documentary discovery.

Following the allowance of the appeal, the Court of Appeal requested submissions on costs for the motion, which had not been addressed at the hearing.

The parties reached an agreement on costs.

The court ordered the plaintiffs to pay the appellant $4,000 all-inclusive, in accordance with the parties' agreement.

The plaintiffs brought a constitutional challenge against provisions of the Insurance Act, alleging the Licence Appeal Tribunal (LAT) lacked adjudicative independence.

They obtained a motion judge's order under Rule 30.10 requiring the LAT to produce hundreds of internal records.

The LAT appealed.

The Court of Appeal allowed the appeal, finding the motion judge erred in her application of Rule 30.10.

The records were not relevant to a material issue because adjudicative independence in a specific case does not impact the constitutional validity of the tribunal's jurisdiction under s. 96 of the Constitution Act, 1867, nor does it engage s. 7 or s. 15 of the Charter.

The Court also clarified that deliberative secrecy applies to administrative tribunals to the same extent as courts.

The applicant challenged Ontario pandemic legislation, a municipal medical officer of health's closure order and enforcement directions, and a trespass notice issued after he deliberately reopened a restaurant for indoor dining in protest of COVID-19 restrictions.

The court held that the EMCPA, the ROA, and O. Reg. 82/20 were intra vires provincial legislation addressing local public health and economic regulation.

It found no infringement of freedom of expression, freedom of peaceful assembly, or ss. 7, 8, or 9 Charter rights, and held that any infringement would in any event be justified under s. 1.

The court also held that the medical officer of health acted within statutory authority under the HPPA and the Trespass to Property Act, and that the judicial review aspects could properly be heard together with the constitutional application.

The application for judicial review, constitutional relief, and Charter relief was dismissed.

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 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.

This is a costs endorsement following an appeal.

The parties settled the costs of the appeal, agreeing that the respondent would pay the appellants an all-inclusive amount of $75,000.

The Ontario Court of Appeal allowed an appeal by seven youth challenging the constitutionality of Ontario's greenhouse gas emission reduction target and plan.

The application judge had dismissed their claim, characterizing it as seeking positive rights.

The Court of Appeal found this was an error, clarifying that the case concerned whether Ontario's voluntarily assumed statutory obligation to combat climate change was Charter compliant under ss. 7 (life, liberty, security of the person) and 15 (equality).

The matter was remitted for a new hearing to determine if the Target and Plan violated the Charter.

The plaintiffs sued multiple defendants, including an insurer and its subcontractors, for various torts arising from the handling of a statutory accident benefits claim.

The defendants brought Rule 21 motions to strike the claims for lack of jurisdiction and disclosing no reasonable cause of action.

The court refused to strike the action for lack of jurisdiction because of an outstanding constitutional challenge to the Insurance Act.

However, the court struck all tort claims against the moving defendants, except for the claim of intentional infliction of emotional distress, finding it was plain and obvious they could not succeed.

The court also struck the plaintiff's constitutional challenges to the Statutory Accident Benefits Schedule as an abuse of process.

This appeal concerned a constitutional challenge by National Steel Car Limited to the costs of Ontario's Feed-in-Tariff (FIT) Program, arguing they constituted an unconstitutional tax disguised as a regulatory charge, primarily intended for economic stimulus.

The appellant contended that the program's true purpose was not related to electricity regulation.

The Court of Appeal upheld the application judge's decision, dismissing the appeal.

The court found that the FIT Program's primary purpose was regulatory, aimed at increasing renewable energy generation, improving air quality, planning for future supply needs, and encouraging Indigenous and community participation, with economic stimulus being an incidental, not dominant, characteristic.

The court also affirmed the sufficiency of the application judge's reasons and his assessment of expert witness bias.

Randy Hillier, a former Member of Provincial Parliament, challenged the constitutionality of Ontario's COVID-19 Gathering Restrictions (O. Reg. 82/20 and O. Reg 265/21), arguing they violated his Charter right to peaceful assembly under s. 2(c).

He faced charges for attending political protest rallies during the spring 2021 lockdown.

While Ontario conceded the s. 2(c) infringement, it argued the restrictions were justified under s. 1 of the Charter.

The court, applying the Oakes test and relying on the precedent set by Ontario (Attorney General) v. Trinity Bible Chapel, found that the restrictions served a pressing and substantial objective (reducing COVID-19 transmission and protecting the healthcare system), were rationally connected to that objective, minimally impaired Charter rights given the urgent and uncertain circumstances, and were proportionate.

The court emphasized the application of the precautionary principle in public health emergencies.

The application was dismissed, and no costs were awarded.

The plaintiffs brought a motion to certify a class action against the Government of Ontario regarding the psychiatric treatment of patients detained in the PST Unit of the St. Thomas Psychiatric Hospital between 1976 and 1992.

The plaintiffs alleged that the 'PST Program' was an experimental, abusive therapeutic community that improperly delegated treatment and punishment decisions to 'patient-teachers', resulting in physical and psychological harm.

The court granted certification, finding that the pleadings disclosed causes of action for negligence, breach of fiduciary duty, vicarious liability, and breaches of sections 7, 12, and 15 of the Charter.

However, the court narrowed the common issues, certifying questions related to systemic negligence, fiduciary duty, vicarious liability, and limitation periods, while directing that Charter breaches, causation, and damages must be determined at individual issues trials.

The court concluded that a class proceeding was the preferable procedure to advance the claims of the highly marginalized class members.

Roger Foley, the plaintiff, brought a motion under Rule 2.1.02 of the Rules of Civil Procedure to disqualify Neil Searles as counsel for the Centre for Independent Living in Toronto (CILT).

Foley alleged conflict of interest, divided loyalty, and that Searles would be a necessary witness due to a 1996 article he authored on physician-assisted suicide.

The court, on its own initiative, considered dismissing the motion as frivolous or vexatious.

The court found the motion frivolous, noting that CILT opposed the removal of its counsel, that accepting a binding Supreme Court decision (Carter) is not a basis for disqualification, and that Foley's attempt to call Searles as a witness was unlikely to be permitted at trial.

The motion was dismissed.

The applicants, seven young Ontarians, brought an application challenging Ontario's greenhouse gas reduction target (the "Target") set under the Cap and Trade Cancellation Act, 2018.

They argued that the Target, which aims to reduce emissions by 30% below 2005 levels by 2030, is unconstitutional and violates their rights under sections 7 and 15 of the Charter.

The court found that the issues were justiciable, as they involved a challenge to specific state action and legislation.

However, the court dismissed the application, concluding that while climate change poses a severe threat and disproportionately impacts youth, the Target itself does not violate the Charter.

The court held that section 7 does not impose positive obligations on the state to enact more stringent environmental policies, and the Target is not arbitrary or grossly disproportionate.

Furthermore, the court found no section 15 violation, as the disproportionate impacts are caused by climate change itself, not the impugned legislation, and the Charter does not impose a positive obligation to remedy social inequalities.

The applicants brought a Charter challenge against the public funding of Roman Catholic separate schools for non-Catholic students and high school students in Ontario.

The respondent moved to strike the application under Rule 21.01.

The court granted the motion, finding that the Supreme Court of Canada had already determined these issues in the Reference re Bill 30 decision, which held that minority education rights under section 93 of the Constitution Act, 1867 are immune from Charter scrutiny.

The court concluded there was no new legal issue or fundamental change in circumstances that would allow it to depart from binding precedent, rendering the application doomed to fail.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court reviewed the request in writing.

The motion for leave to appeal was dismissed, and costs were awarded to the responding parties in the fixed amount of $5,000.

National Steel Car Limited challenged Ontario's Feed-In Tariff (FIT) Programs, arguing that the increased electricity costs passed to consumers via the "Global Adjustment" constituted an unlawful, unconstitutional tax.

The applicant contended that the FIT Programs' stated environmental and energy purposes were a "falsehood" and their true aim was economic stimulus, making the levy a "colourable taxation" enacted by regulation rather than statute, violating sections 53 and 54 of the Constitution Act, 1867.

The court dismissed the applications, finding that the FIT Programs were not colourable taxation and served legitimate regulatory purposes related to Ontario's electricity system, including promoting renewable energy and economic development.

The court concluded that the levy was properly characterized as an intra vires regulatory charge.

The plaintiffs brought a proposed class action on behalf of prisoners and their families, alleging that Bell Canada and Ontario charged unconscionable rates for collect calls from provincial correctional facilities.

The plaintiffs sought certification, while the defendants brought cross-motions to stay the action, arguing the Canadian Radio-television and Telecommunications Commission (CRTC) had exclusive jurisdiction.

The Superior Court of Justice struck the plaintiffs' claims for an ultra vires tax and breach of the Telecommunications Act, finding it plain and obvious they could not succeed.

The court permanently stayed the remaining claims, concluding that the pith and substance of the dispute concerned telecommunications rates, which fall squarely within the specialized jurisdiction and remedial authority of the CRTC.

The applicants sought an order for restitution and vacating of victim fine surcharges imposed between 2013 and 2018, following the Supreme Court of Canada's decision in R. v. Boudreault which found the surcharge unconstitutional.

The court granted the order vacating the unpaid surcharges for the applicant, Serge Parent, finding it just and appropriate under s. 24(1) of the Charter, and that the limitation period had not expired.

However, the court dismissed the request for restitution of already paid surcharges and the broader class remedy, noting that s. 24(1) is for personal remedies and that government measures had ameliorated some harms.