Ryan Cookson

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.

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 Court of Appeal for Ontario heard an appeal regarding the constitutionality of s. 17 of the Crown Liability and Proceedings Act, 2019 (CLPA).

This section imposes a leave requirement for tort claims against the Crown alleging misfeasance in public office or bad faith, limiting discovery.

The application judge had declared s. 17 unconstitutional, finding it violated s. 96 of the Constitution Act, 1867 by preventing "meaningful access" to superior courts.

The Court of Appeal allowed the appeal, holding that s. 17 is a valid exercise of provincial legislative authority under s. 92(14) and does not infringe s. 96.

The court clarified that s. 96 protects the institutional core jurisdiction of superior courts, not an individual right of access, and that procedural changes making claims more difficult do not equate to an infringement of core jurisdiction.

The appellants sought to appeal the dismissal of their application challenging outdoor gathering restrictions imposed as public health measures during the COVID-19 pandemic, which was initially dismissed for lack of public interest standing.

The Court of Appeal determined that the underlying application was moot because the challenged regulations were no longer in force.

The court declined to exercise its discretion to hear the appeal regarding Mr. Baber's private interest standing, finding that this issue was also moot and that a decision would not resolve any live controversy or bind future hypothetical challenges.

The moving parties, consisting of two churches and their members, brought motions to set aside judicial orders directing compliance with COVID-19 religious gathering limits.

They argued the capacity restrictions infringed their freedom of religion under s. 2(a) of the Charter.

The court found that the numerical and percentage capacity limits did infringe s. 2(a) by interfering with the claimants' ability to engage in religious activity as a collective in-person congregation.

However, applying the Oakes test, the court concluded that the restrictions were demonstrably justified under s. 1 of the Charter as a reasonable limit in a free and democratic society to protect public health during the pandemic.

The motions were dismissed.

The applicants, operators of a restaurant, brought a constitutional challenge against the Reopening Ontario Act and its Step 3 Regulation, specifically targeting the masking and proof of vaccination requirements.

They argued these measures infringed their rights under sections 2, 7, 8, and 15 of the Charter.

The court dismissed the application, finding no infringement of the Charter rights, as the Charter does not protect purely economic interests or the right to operate a business free of regulation.

The court further held that even if there were an infringement, the public health measures were justified under section 1 of the Charter.

The self-represented defendant in an action for a permanent injunction and defamation brought a motion for a further and better affidavit of documents.

She sought a list of all 'Implementation Specialists' engaged by the plaintiffs since January 2012 to obtain evidence regarding working conditions.

The plaintiffs opposed the request on the grounds of relevance, proportionality, and privacy.

The court found the information relevant to the plaintiffs' claim for an injunction restraining the defendant from making statements about working conditions.

To balance the defendant's need for evidence against the risk of disrupting the plaintiffs' business, the court ordered the production of contact information for former workers only.

The plaintiffs brought a motion to strike the self-represented defendant's counterclaim.

The defendant's employment had previously been terminated for refusing a security clearance check, leading to an injunction and a subsequent contempt finding against her.

The court found that the defendant's counterclaim, which alleged wrongful accusations and Charter violations, did not disclose any tenable claims and that any abuse of process claims were premature.

The counterclaim was struck without leave to amend.

The municipality sought an injunction requiring the respondents to obtain a licence as either a taxicab broker or a limousine service company under Chapter 545 of the City of Toronto Municipal Code.

The application alleged that the respondents, through their smartphone platform, accepted requests for transportation services and therefore carried on a regulated business.

The court interpreted the by‑law definitions of “taxicab”, “limousine service company”, and the requirement to “accept calls”, concluding that the automated software platform merely relayed digital requests between passengers and drivers.

Because acceptance occurred only when an individual driver chose to accept a trip request, the respondents themselves did not accept calls or requests within the meaning of the by‑law.

Accordingly, the respondents were not operating as a taxicab broker or limousine service company requiring a municipal licence.

The plaintiffs sought a Mareva injunction freezing assets of an individual defendant alleged to have received fraudulent transfers from a corporate defendant.

The court accepted that the plaintiffs had established a strong prima facie case that certain transfers constituted fraudulent conveyances and that judgment in related U.S. proceedings was likely.

However, the evidence failed to demonstrate the existence of assets in Ontario or a current risk of dissipation within the jurisdiction.

The court concluded that a Mareva injunction cannot be used as a tool to investigate whether assets exist.

Because the applicants could not satisfy the jurisdictional asset and dissipation requirements, the motion was dismissed.

Following a prior finding of civil contempt for breaching an injunction prohibiting dissemination of confidential business information, the court considered the appropriate sanction.

The defendant knowingly and deliberately violated a court order by distributing a press release containing confidential information and refusing to provide disclosure of recipients, showing persistent defiance and no remorse.

The court emphasized the importance of deterrence and the integrity of court orders in the administration of justice.

Finding that a fine would be ineffective due to the defendant’s financial circumstances and continuing defiance, the court imposed a custodial sanction.

A 20‑day jail sentence to be served intermittently over five weekends was ordered, with the sentence stayed for 30 days to permit the defendant to seek a stay pending appeal.

The plaintiffs brought a motion under Rule 60.11(1) of the Rules of Civil Procedure seeking a contempt finding against a former subcontractor who published a press release disclosing confidential business information after being served with an interim injunction prohibiting publication.

The court reviewed the legal test for civil contempt, requiring proof beyond a reasonable doubt that the order was clear, that the alleged contemnor had knowledge of the order, and that the breach was deliberate and wilful.

Evidence showed the respondent had actual knowledge of the injunction yet failed to take reasonable steps to prevent publication of the press release and refused to disclose the recipients of confidential information as required by the order.

The court rejected the respondent’s arguments that the order did not require post-order disclosure or that publication could not be stopped.

The court concluded that the respondent knowingly and wilfully breached the order in both letter and spirit.

The plaintiffs sought a Mareva injunction against the assets of the defendants, specifically a biodiesel plant owned by Great Lakes Biodiesel Inc., alleging that funds were fraudulently conveyed by Verdeo Inc. to the defendants to fund the plant's construction.

In the alternative, the plaintiffs sought interim relief under the oppression provisions of the Business Corporations Act or a certificate of pending litigation.

The court dismissed the motions, finding that the plaintiffs failed to establish a strong prima facie case of a fraudulent conveyance from the intermediary corporations to Great Lakes Biodiesel Inc., and that the balance of convenience did not favour a certificate of pending litigation.