Paul B. Schabas

A journalist requested an electronic database of municipal election campaign contributors from the City of Toronto to investigate potential breaches of contribution limits.

The City and the Assistant Information and Privacy Commissioner refused disclosure, citing privacy exemptions under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

On judicial review, the Divisional Court held that the Commissioner erred in interpreting the Municipal Elections Act, finding the database was a public record prepared under the Act.

The Court further held that the Commissioner's decisions on the privacy exemption and public interest override were unreasonable, as the public interest in scrutinizing the democratic process outweighed the minimal privacy intrusion of disclosing contributors' telephone numbers.

The application was allowed and the database ordered disclosed.

The appellant challenged the constitutionality of section 43 of the Criminal Code, which provides a defence for parents and teachers who use reasonable force to correct a child.

The appellant argued that the provision violates sections 7, 12, and 15 of the Charter.

The Court of Appeal dismissed the appeal, finding that while section 43 engages a child's security of the person, it does not violate the principles of fundamental justice.

The court also held that section 43 does not constitute state-imposed cruel and unusual punishment under section 12, and any infringement of equality rights under section 15 is justified under section 1 of the Charter.

Transportation Action Now, Inc. (TAN) brought a motion seeking to intervene in a human rights complaint regarding the Toronto Transit Commission's Wheel-Trans service.

TAN sought full non-party intervenor status to adduce evidence, cross-examine witnesses, and make legal submissions.

The Board of Inquiry reviewed its jurisdiction to grant intervenor status and the criteria for amicus curiae participation.

The Board found that while the case involved public interest, TAN did not demonstrate a current expertise or a perspective different from the existing parties (the Commission and the Complainants) that would assist the Board.

The motion to intervene was dismissed.

The appellant challenged an order refusing to set aside an earlier summary judgment enforcing a foreign judgment and permitting amendment of the judgment to accord with the statutory foreign-currency conversion provision.

The court held that the amendment under s. 121(1) of the Courts of Justice Act did not introduce a new cause of action, did not seek further damages, and merely brought the Ontario judgment into conformity with the amount awarded in the foreign judgment.

Because the appellant had ample opportunity to raise any limitation defence before summary judgment and the amendment created no new substantive rights or prejudice, the limitation argument failed.

The appeal was dismissed with costs.

On an appeal from summary judgment dismissing claims against a corporate officer, the court held that a moving party cannot rely on its own examination for discovery on a summary judgment motion because rule 39.04(2) applies to all motions, including summary judgment motions, and a party's own discovery is not 'other evidence' under rule 20.01(3).

The court further held that the motions judge erred by treating the appellants' inability to extract admissions on discovery as evidentiary support for the respondent.

The court also rejected the proposition that a corporate officer is immune from personal tort liability merely because the impugned acts occurred within the scope of corporate duties.

The appeal was allowed, the summary judgment and related costs order were set aside, and the respondent was left free to bring a fresh motion on a proper evidentiary record.

The individual respondent brought a preliminary motion to stay human rights proceedings against him, arguing that an extensive delay by the Commission infringed his rights under s. 7 of the Charter and breached the principles of natural justice.

The Board of Inquiry dismissed the motion, finding that s. 7 of the Charter does not apply to remedial human rights proceedings because neither the potential consequences nor the nature of the proceedings jeopardize the liberty or security interests of the respondent.

The Board also found no actual prejudice to the respondent's ability to mount a full answer and defence, and no procedural unfairness amounting to a breach of natural justice.

The individual respondent brought a preliminary motion requesting the Board of Inquiry step aside because the substance of settlement negotiations had been disclosed to the Board during related judicial review proceedings.

The Commission argued the disclosure was necessary to respond to the respondent's allegations of delay and failure to pursue settlement.

The Board granted the motion and stepped aside, finding that the disclosure of settlement details was unilateral and unnecessary, and that preserving the public policy of encouraging settlements required adjudicators to remain unaware of such negotiations.

The appellants challenged the constitutionality of s. 13(1) of the Canadian Human Rights Act after repeated antisemitic recorded telephone messages led to a human rights cease and desist order and contempt proceedings.

The Supreme Court held that the provision infringed freedom of expression under s. 2(b), but the majority found the infringement justified under s. 1 because the objective of preventing harm caused by hate propaganda and promoting equality was pressing and substantial.

The majority also held that the tribunal order was sufficiently clear and that any apprehension of bias challenge had been waived and could not be raised collaterally in contempt proceedings.

The appeal was dismissed, with a partial dissent that would have struck down the provision while still upholding the contempt convictions.

In a criminal appeal following acquittals on conspiracy charges arising from the operation of an abortion clinic, the Court held that the abortion regime in s. 251 of the Criminal Code violated s. 7 of the Charter.

A majority concluded that the therapeutic abortion committee scheme interfered with liberty and security of the person by removing decision-making from pregnant women and by imposing unfair, delay-producing procedural barriers that increased physical and psychological risk.

The Court further held that the infringement was not justified under s. 1 because the legislative means were arbitrary, overbroad, and not proportionate to the objective of protecting the foetus.

The acquittals were restored and s. 251 was struck down.

The Crown appealed an order granting a new trial after a sexual assault conviction.

The court held that an instruction on honest but mistaken belief in consent is not mandatory in every sexual assault case; it is only required where there is sufficient evidence giving that issue an air of reality under s. 244(4) of the Criminal Code.

On the record, the accused's theory of consent or mistaken belief lacked an evidentiary foundation.

The court also held that evidence from the complainant's roommate about a prior sexual proposition was admissible because its probative value outweighed its minimal prejudicial effect, and in any event any error would have been cured by the proviso.