Phillip W. Sutherland

This case involves a Charter challenge to sections 286.2 (material benefit), 286.3(1) (procuring), and 286.4 (advertising) of the Criminal Code, enacted as part of the Protection of Communities and Exploited Persons Act (PCEPA).

The applicant argued these provisions violate sections 2(b), 2(d), and 7 of the Canadian Charter of Rights and Freedoms.

The court found that sections 286.2, 286.3(1), and 286.4 infringe section 7 of the Charter due to overbreadth and gross disproportionality, as they make the lawful activity of selling sexual services more dangerous by preventing sex workers from taking safety measures like sharing expenses or openly advertising.

These infringements were not saved by section 1 of the Charter.

The court declined to rule on the section 2(d) challenge and found itself bound by prior appellate and Supreme Court decisions regarding the section 2(b) challenge to advertising.

Further submissions on the appropriate remedy were requested.

The plaintiffs purchased a cottage and later discovered significant structural issues and Building Code violations during renovations.

They sued the Township for negligent building inspections and failure to enforce the Building Code Act.

The court found that the Township owed a duty of care to the plaintiffs and breached that duty by granting a building permit without proper plans and failing to identify structural deficiencies during inspections.

The Township was held liable for the costs to remedy the Code violations and for the plaintiffs' mental distress, resulting in a total damages award of $361,875.33.

The plaintiff brought a summary judgment motion seeking a declaration that her home insurance policy was in effect when a fire destroyed her property, and claiming damages of $398,958.94.

The insurer had terminated the policy for non-payment of premiums months before the fire.

The fire was intentionally set by the plaintiff's husband, who was living at the property.

The court found no genuine issue for trial, concluding that the insurer properly terminated the policy according to its terms.

Furthermore, even if the policy had been in force, the intentional or criminal act exclusion would have barred coverage because the husband was an insured living in the household.

The plaintiff's claims for negligent misrepresentation and negligence were also dismissed.

The motion and action were dismissed.

The appellant, Halton Hills Hydro Inc., appealed a decision of the Ontario Energy Board refusing a discretionary rate adjustment for operation, maintenance, and administration costs of a new transformer station between five-year rate-setting intervals.

The Divisional Court dismissed the appeal, finding no error of law or jurisdiction in the Board's conclusion that the requested costs were not sufficiently material to justify an exception to its general policy.

The applicant union sought judicial review of an arbitration award that dismissed its grievance regarding the respondent employer's decision to close its Windsor plant.

The union argued that the plant closure violated a 'sole sourcing' promise made by the employer in exchange for wage concessions.

The Divisional Court found the arbitrator's decision unreasonable because it relied on an improper inference drawn from rejected proposed contract language, failing to consider the overall context of the negotiations.

The application was granted, the arbitrator's decision was quashed, and the grievance was remitted back to the arbitrator for a fresh determination.

The applicant hospital sought judicial review of an interest arbitration award that harmonized wages for a newly merged bargaining unit to the highest pre-existing rate.

The Board of Arbitration based its decision on a well-established pattern of post-merger harmonization in the hospital sector, without analyzing the hospital's arguments that its specific circumstances were unique.

The Divisional Court granted the application and quashed the award, finding that the Board failed to provide sufficient reasons meeting the minimum standards of justification, transparency, and intelligibility as required by Vavilov.

The matter was remitted to the Board.

The appellant appealed a Licence Appeal Tribunal (LAT) decision that found it lacked jurisdiction to grant interim statutory accident benefits.

Before the appeal could be heard, the appellant's underlying claim was settled, rendering the appeal moot.

The appellant argued the court should still hear the appeal because the issue was evasive of review and of public importance.

Applying the Borowski factors, the Divisional Court declined to exercise its discretion to hear the moot appeal, finding that the issue was not evasive of review and that a future, non-moot case would provide a better factual foundation.

The appeal was dismissed.

The appellant appealed a decision refusing to confirm a master's report that granted summary judgment in a construction lien action.

The Divisional Court held that a master acting as a referee under the Construction Lien Act has the jurisdiction to use the enhanced powers of a judge on a summary judgment motion.

However, the appeal was dismissed because the master deprived the self-represented respondent of procedural fairness by treating his motion to discharge the lien under section 47 as a motion for summary judgment without notice.

The matter was remitted back to a master for disposition.

The applicant father and respondent mother brought urgent motions regarding parenting arrangements during the COVID-19 pandemic.

The primary unresolved issues were whether the applicant's adult daughter, an ICU nurse, should self-isolate from the children during parenting time, and where the children should reside if a household member exhibited COVID-19 symptoms.

The court ruled that the adult daughter did not need to self-isolate, emphasizing adherence to public health protocols and the lack of medical evidence supporting isolation.

For the second issue, the court directed parents to seek medical advice and follow Canada Public Health Protocols.

The applicant employer sought judicial review of an arbitrator's interlocutory evidentiary ruling regarding settlement privilege in one of 11 test cases concerning employee benefits fraud.

The parties had agreed that the ruling in this test case would apply to the other ten.

The Divisional Court dismissed the application as premature, finding that the agreement to apply the ruling across test cases did not constitute exceptional circumstances justifying the fragmentation of the administrative process.

The court emphasized that labour arbitration cases should generally be decided finally before judicial review is sought.

The plaintiff and certain defendants each brought urgent motions during the COVID-19 pandemic, when the court was only hearing urgent matters.

The defendants sought an order to pay out funds held in court, while the plaintiff sought to prohibit the payout and further motions.

The court found that neither party provided cogent, particular, and specific evidence to demonstrate that the relief requested was urgent, as defined by the Chief Justice's notices.

Consequently, both motions were dismissed for lack of urgency, and no hearing was scheduled.

The defendant moved to dismiss the plaintiff's wrongful dismissal action, arguing it was statute-barred under sections 97(2) and 97(4) of the Employment Standards Act, 2000 (ESA) because the plaintiff had initially filed an ESA claim.

The plaintiff opposed, asserting "special circumstances" due to inadequate legal advice from his paralegal, leading him to withdraw the ESA claim shortly after the statutory two-week period.

The court exercised its inherent jurisdiction, finding special circumstances existed, including the plaintiff's lack of proper legal advice, prompt withdrawal of the ESA claim upon receiving proper counsel, lack of prejudice to the defendant, and no evidence of forum shopping or bad faith.

The defendant's motion was dismissed, allowing the plaintiff's civil action to proceed.

A.C. was charged with two counts of sexual assault and brought an application for a directed verdict, arguing that the Crown's evidence was manifestly unreliable.

The Crown contended that the evidence, if believed, could support guilty verdicts and that the court should not assess reliability or credibility at this stage.

The court, bound by R. v. Tomlinson, dismissed the application, holding that where direct evidence is presented on each essential element of the offence, the reliability and credibility assessment is for the trier of fact, not the judge on a directed verdict application.

The applicant employer sought judicial review of a grievance arbitration award that substituted a thirty-day suspension for the termination of an employee.

The Divisional Court stayed the application as premature, noting that the arbitrator had remitted the matter back to the parties and remained seized of the issue of whether reinstatement was an appropriate remedy.

The court held that judicial review should wait until the final disposition of the remedy to avoid overlapping work and inconsistent decisions.

The accused, A.C., brought an application under section 278.92 of the Criminal Code to admit emails exchanged with the complainant for cross-examination in a sexual assault trial.

The emails concerned the breakdown of their marriage, separation agreement negotiations, and the complainant's sentiments.

The court found the emails to be "records" and admissible for the limited purpose of cross-examining the complainant on issues of animus and reliability, provided they are used intelligently and do not infer "twin myths" or delve into irrelevant matters.

The court emphasized the importance of context and a holistic review of the emails.

The accused sought to cross-examine the complainant at trial using emails exchanged between them regarding their marriage breakdown and separation agreement.

The Crown argued the emails were 'records' under section 278.1 of the Criminal Code, requiring a hearing under section 278.92.

The court found that the emails contained personal information with a reasonable expectation of privacy, thus constituting records.

The court also held that the recent amendments to section 278.1 were procedural in nature and operated retrospectively, applying to the accused's trial despite the charges predating the amendments.

The applicant union sought judicial review of an arbitration award upholding the layoff of two unionized employees.

The union argued the arbitrator unreasonably applied the wrong standard of review by deferring to the employer's assessment of the employees' relative abilities rather than determining correctness.

The Divisional Court dismissed the application, finding the arbitrator's approach was consistent with established arbitral consensus and reasonable.

The court also rejected arguments regarding the arbitrator's delay in issuing the decision.

The applicant sought judicial review of a decision upholding sanctions for research misconduct, which prohibited him from conducting research as a principal investigator, applying for grants, and permanently closed his research laboratory.

The applicant argued the decision failed to consider mitigating factors, including his unblemished record and status as a world-renowned researcher.

The Divisional Court dismissed the application, finding the decision reasonable given the systemic and persistent nature of the misconduct over a ten-year period.

The accused, charged with two counts of sexual assault, brought an application under s. 276 of the Criminal Code to admit evidence of prior discussions with the complainant regarding 'rough sex' and a 'rape fantasy', as well as her characterization of the incident as a 'grey area'.

The Crown opposed, arguing the evidence engaged the twin myths and the application lacked sufficient detail.

The court found the application material sufficient, as the proposed evidence came from the complainant's own statements to police and at the preliminary inquiry.

The court ruled the evidence admissible, finding its probative value for full answer and defence outweighed prejudicial effects, provided cross-examination is strictly limited to the specific statements and not used to invoke the twin myths.

The applicant, charged with trafficking cocaine, brought a Rowbotham application seeking a stay of proceedings until the state agreed to fund his legal counsel.

Although he had been denied legal aid, the court found his financial disclosure deficient.

He failed to provide evidence of his recent employment income, the value of his vehicle, or a logical explanation for transactions in his girlfriend's bank account.

The application was dismissed as the applicant did not prove on a balance of probabilities that he could not afford to retain private counsel.