Robin Kumar Basu

The Attorney General of Ontario appealed a Superior Court decision striking down provisions of the Security from Trespass and Protecting Food Safety Act, 2020 and its Regulation.

The application judge had found that provisions invalidating consent to enter a farm obtained under false pretences violated the freedom of expression of animal rights activists seeking to conduct undercover exposés.

The Court of Appeal allowed the appeal, holding that the activists' claim was a positive rights claim seeking access to private property on their own terms.

The Court found that the legislation did not substantially interfere with freedom of expression and that any limits were justified under section 1 of the Charter.

The moving parties brought an ex parte motion for an interim injunction to suspend the coming into force of provisions in Bill 97 that would exempt the Premier's cell phone call logs from disclosure under the Freedom of Information and Protection of Privacy Act.

The moving parties argued that the legislation violated section 2(b) of the Charter and that the records might be destroyed.

The court dismissed the motion, finding no arguable case, no irreparable harm, and that the balance of convenience favoured the government.

The court awarded costs of $1,500 to the Attorney General.

This endorsement addresses seven motions for leave to intervene in an appeal concerning the constitutionality of provisions of the Security from Trespass and Protecting Food Safety Act, 2020, and its Regulation 701/20, which were found to violate the Canadian Charter of Rights and Freedoms.

The Court of Appeal granted leave to intervene to Animal Alliance, Centre for Free Expression (CFE), Canadian Civil Liberties Association (CCLA), and Labour Issues Coordinating Committee (LICC), finding they offered useful and distinct perspectives without unduly expanding the appeal's scope.

Motions by Justicia for Migrant Workers (J4MW), Canadian Journalists for Free Expression (CJFE), and Animal Environmental Legal Advocacy (AEL Advocacy) were dismissed, primarily due to concerns about expanding the issues or duplication of arguments.

The applicants, animal rights activists, challenged the constitutionality of the Security from Trespass and Protecting Food Safety Act and its Regulation.

They argued that provisions voiding consent to enter agricultural premises if obtained under false pretences, and provisions prohibiting interaction with farm animals, violated their Charter rights to freedom of expression and assembly.

The court found that the Act's prohibition on interacting with animals did not violate the Charter, as there is no constitutional right to physically interact with another's private property.

However, the court held that Section 9 of the Regulation, which penalized any false statement made to gain access to agricultural premises, unjustifiably infringed freedom of expression.

The court struck down Section 9 and certain limitations within the whistleblower and journalist exemptions, while upholding the rest of the Act.

The applicants, representing members of Ontario's Sinhalese diaspora, brought applications challenging the constitutionality of the Tamil Genocide Education Week Act, 2021.

They argued the Act was ultra vires the province and violated their rights under sections 2(b) and 15 of the Charter.

The Superior Court of Justice dismissed the applications, finding that the Act is in pith and substance related to education, which falls within provincial jurisdiction.

The court further held that the Act does not restrict freedom of expression, nor does it create a discriminatory distinction based on enumerated or analogous grounds.

The appellant municipality challenged provincial legislation that reduced Toronto City Council's ward structure from 47 to 25 wards mid-election campaign, arguing it violated the Charter's freedom of expression guarantee and the unwritten constitutional principle of democracy.

The majority held that the appellant's claim was a positive rights claim governed by the Baier framework, requiring demonstration of radical frustration of expression effectively precluding meaningful expression, a threshold not met where candidates had 69 days to re-orient their campaigns under the new structure.

The majority further held that unwritten constitutional principles cannot serve as independent bases for invalidating legislation, and that the democratic principle cannot be used to narrow provincial authority over municipalities under s. 92(8) of the Constitution Act, 1867.

The dissent would have allowed the appeal, finding the timing of the legislation violated s. 2(b) and that Ontario offered no pressing and substantial justification for making the changes during an ongoing election.

The appellant was successful on appeal and sought costs for both the appeal and the underlying summary judgment motions.

The parties agreed to fix the appeal costs at $75,000.

For the motions, the appellant sought partial indemnity costs of approximately $212,500.

The respondents argued this amount was excessive and not within their reasonable contemplation, suggesting a cap of $125,000.

The Court of Appeal found that while there was some overlap in the respondents' work, it was not considerable, and fixed the motion costs at $175,000 inclusive of HST and disbursements.

The appellant, a heavy electricity user, challenged the constitutionality of the Global Adjustment component of Ontario's electricity pricing formula, which funds the Feed-in Tariff (FIT) program.

The appellant argued that the FIT program component was a colourable attempt to disguise a tax as a regulatory charge, designed to provide economic stimulus and subsidies to preferred communities (aboriginal peoples, co-operatives, and municipalities) rather than to regulate electricity generation.

The motion judge struck the applications, finding the Global Adjustment was a valid regulatory charge within a closed system.

The Court of Appeal allowed the appeal, finding the appellant's colourability challenge was sufficiently plausible that the applications should not have been dismissed on a pleadings motion and should proceed to a full hearing on the merits.

The Ontario legislature enacted the Better Local Government Act, 2018, which reduced Toronto City Council from 47 to 25 councillors and changed ward boundaries in the middle of a municipal election campaign.

The applicants challenged the constitutionality of the Act, arguing it violated section 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression) and unwritten constitutional principles.

The application judge found the Act violated section 2(b) and allowed the application.

On appeal, the majority (D.M. Miller J.A., with Tulloch and Harvison Young JJ.A. concurring) allowed the appeal and upheld the Act as constitutional.

The majority held that section 2(b) does not guarantee effective expression, does not require government to maintain platforms for expression, and does not incorporate the right to vote from section 3 of the Charter.

The majority also rejected arguments based on unwritten constitutional principles and jurisdictional limits in section 92(8) of the Constitution Act, 1867.

MacPherson J.A. (with Nordheimer J.A. concurring) dissented, finding the Act infringed section 2(b) by interfering with freedom of expression during an active election and that the infringement could not be justified under section 1 of the Charter.

The Attorney General of Ontario appealed a Superior Court decision that declared provisions of Bill 5 (Better Local Government Act, 2018) unconstitutional for violating freedom of expression rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.

Bill 5 reduced Toronto's municipal wards from 47 to 25 mid-election.

The application judge found that the mid-campaign change substantially interfered with candidates' ability to communicate their political messages and violated voters' right to effective representation.

The Court of Appeal granted a stay of the lower court's order pending appeal, finding a strong likelihood that the application judge erred in law and that the appeal would succeed.

The court held that Bill 5 does not limit or restrict candidates' messages and that the right to effective representation falls under s. 3 (democratic rights), not s. 2(b) (freedom of expression), and s. 3 does not apply to municipal elections.

The province enacted Bill 5, reducing Toronto wards from 47 to 25, mid-municipal election.

Applicants challenged its constitutionality.

The court found Bill 5 violated candidates' and voters' freedom of expression under s. 2(b) of the Charter, as it substantially interfered with campaign communication and denied effective representation due to increased ward sizes.

The violation was not justified under s. 1, as the legislative objectives (better decision-making, voter parity) were not pressing and substantial enough to warrant mid-election implementation, nor was minimal impairment demonstrated.

The impugned provisions were declared unconstitutional and set aside, requiring the election to proceed with 47 wards.

The court issued a costs endorsement following successful motions by the Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and the Independent Electricity System Operator (IESO) to strike two constitutional challenge applications.

The applications, brought by National Steel Car Limited, challenged aspects of Ontario's Global Adjustment electricity regime.

The court awarded partial indemnity costs to the Attorney General and Her Majesty in the amount of $50,000, and to the IESO in the amount of $75,000.

The decision considered the general principles of costs under Rule 57.01, the principle of indemnity, and the reasonable expectations of the parties.

It addressed the applicant's argument of being a public interest litigant and confirmed that a party fully participating in and supporting a successful motion, even without formally bringing it, can be awarded costs, subject to adjustment.

The respondents brought a motion to strike out two applications challenging the constitutionality of the Global Adjustment under the Electricity Act, 1998.

The responding party argued that the Global Adjustment was an unconstitutional tax that violated s. 53 of the Constitution Act, 1867.

The court applied the Lawson and Westbank tests, concluding that the Global Adjustment is a regulatory charge tied to a complex regulatory scheme, not a tax.

The court found it plain and obvious that the applications could not succeed and granted the motion to strike.

The applicants brought a motion seeking leave to file seven reply affidavits in an application for judicial review concerning a decision to allow increased sulphur production at a Suncor refinery.

The respondents objected to the vast majority of the proposed reply evidence on grounds including improper case-splitting, irrelevance, and that the evidence was available earlier.

The court held that a less strict standard for reply evidence applies on an application prior to cross-examinations than at trial.

Applying this standard, the court permitted most of the reply evidence, striking only portions that were purely confirmatory, raised new issues that should have been in the main case, or repeated earlier evidence verbatim.

The parties requested an amendment to a May 9, 2012 consent order that had finally disposed of the human rights complaint.

Due to an error by counsel, the order and minutes of settlement did not reflect the parties' agreement that parts of the complaint not relating to intensive behavioural intervention (IBI) would proceed.

The Tribunal granted the request to amend the order to allow the non-IBI parts of the complaint to proceed, waived the 30-day delay for making such a request, and set a schedule for next steps, including addressing the complainant's capacity to conduct litigation now that he is over 18.

The applicants sought judicial review of a Ministry of the Environment decision approving an increase in sulphur production at a Suncor refinery, arguing the failure to conduct a cumulative effects assessment violated their Charter rights.

The respondents brought motions to strike the application as a collateral attack on prior approvals and to strike much of the applicants' affidavit evidence.

The applicants brought a cross-motion for a protective costs order.

The Divisional Court dismissed the motion to strike the application, finding it was not plain and obvious it would fail.

The court allowed the motion to strike evidence in part, striking improper expert opinion and unattributed hearsay, but leaving relevance determinations to the hearing panel.

The motion for a protective costs order was dismissed, as the applicants had pro bono representation and the narrow administrative issue did not meet the exceptional public importance threshold.

The Attorney General appealed the dismissal of an application for civil forfeiture of $9,616.98 seized from an individual arrested for marijuana possession.

The application judge had dismissed the application, finding the Attorney General failed to prove the funds were proceeds of unlawful activity and that forfeiture would not be in the interests of justice due to withdrawn criminal charges and potential Charter breaches.

The Divisional Court allowed the appeal, holding that the application judge erred by disregarding the individual's prior drug record, the lack of an innocent explanation for the funds, and the individual's consent to forfeiture.

The Court further held that withdrawn charges and potential Charter breaches do not render forfeiture clearly not in the interests of justice.

The appellant appealed a civil forfeiture order regarding a property where police discovered a sophisticated marijuana grow operation.

The appellant claimed he had leased the property to a man he met at a casino and had no knowledge of the operation, which the application judge rejected.

The Court of Appeal dismissed the appeal, finding no error in the application judge's factual findings, his conclusion that there was no evidence to rebut the presumption of unlawful activity, or his determination that forfeiture was in the interests of justice.

The Attorney General of Ontario brought applications under the Civil Remedies Act, 2001 for the civil forfeiture of four properties used as marijuana grow operations.

The application judge ordered the forfeiture of three properties but declined to forfeit the fourth, finding it would clearly not be in the interests of justice because the owner was innocent and only a small portion of the mortgage was paid with illicit funds.

The property owners appealed the forfeiture orders, arguing the standard of proof should be beyond a reasonable doubt and that the Crown was estopped from seeking civil forfeiture.

The Attorney General appealed the refusal to forfeit the fourth property.

The Court of Appeal dismissed all appeals, affirming that civil forfeiture operates on a balance of probabilities, is independent of criminal proceedings, and that the 'interests of justice' exception functions similarly to equitable relief from forfeiture.

The appeal concerned a constitutional challenge to Ontario’s separate labour relations regime for agricultural workers.

The Court held that s. 2(d) of the Charter protects a meaningful process of collective action toward workplace goals, including employee representations that employers must consider in good faith, but does not constitutionalize any particular model of labour relations.

The majority interpreted the Agricultural Employees Protection Act, 2002 as implicitly requiring good faith consideration of employee representations and concluded that the claimants had not established that the statutory scheme made meaningful association effectively impossible.

The s. 15 challenge also failed because the record did not establish substantive discrimination, and the claim was premature.