Sarah Toby Kraicer

The Association of Justices of the Peace of Ontario brought an urgent motion for an interim stay of the implementation of changes to pre-retirement and post-retirement benefits for Justices of the Peace, pending an application for judicial review.

The applicant argued that the government's unilateral implementation of these changes without input from an independent commission violated constitutional principles of judicial independence.

Applying the RJR-Macdonald test, the court found a serious issue to be tried, irreparable harm to the justices if the stay was not granted, and that the balance of convenience favoured the applicant.

The interim stay was granted.

The Association of Justices of the Peace of Ontario sought judicial review of the provincial government's decision to reject the recommendation of the Justice of the Peace Remuneration Commission regarding the appropriate Industrial Aggregate Index rate for a 2008 salary increase.

The Commission's majority had recommended a compromise rate of 3.3%, which the government rejected in favour of the minority's 2.7% recommendation.

The Divisional Court dismissed the application, finding that the government met the standard of simple rationality by providing legitimate reasons for its decision, including that the majority failed to answer the specific question referred to it and failed to properly weigh the required statutory criteria.

An association representing justices of the peace brought an application seeking a declaration that existing pension arrangements—under which justices of the peace participate in the provincial public servants’ pension plan—violate the constitutional principle of judicial independence.

The respondent argued that the application should not proceed because the issue was currently before the Justice of the Peace Remuneration Commission.

The court held that although it possessed inherent jurisdiction to determine constitutional questions, courts should ordinarily refrain from intervening before specialized administrative processes are completed.

Given that the Commission was actively considering the same issue and could provide an informed report, the court found the application premature.

The application was therefore adjourned pending the Commission’s report.

The applicant, a First Nations constable, sought judicial review of a Human Rights Tribunal decision dismissing his complaint that his suspension and termination by the OPP Commissioner were discriminatory and acts of reprisal.

The applicant had been terminated after making public comments criticizing the OPP.

The Divisional Court upheld the Tribunal's findings that the exclusion of First Nations constables from the procedural protections of the Police Services Act was not discriminatory, but rather respected First Nations self-government.

The Court also upheld the finding that the termination was not a reprisal under the Human Rights Code, as the applicant's public comments were not an assertion of human rights.

A related application by the First Nation Council alleging a denial of natural justice was also dismissed.

The Crown appealed a declaration that the process for setting the remuneration of Case Management Masters violated the constitutional principle of judicial independence.

The respondents cross-appealed, seeking a broader remedy than a simple declaration of invalidity.

The Court of Appeal dismissed the appeal, finding that linking the Masters' salaries in perpetuity to a specific civil service classification without an independent commission violated the requirement for an independent, effective, and objective process.

The cross-appeal was also dismissed, as a simple declaration of invalidity was the appropriate remedy.

The suspension of the declaration of invalidity was extended for 12 months.

The Ministry of the Attorney General applied for judicial review of an order by the Information and Privacy Commissioner requiring the disclosure of severed portions of statistical reports regarding court activity.

The reports were created by the Ministry at the request of the Chief Justice.

The Divisional Court held that while the Commissioner erred in finding the reports were under the Ministry's 'control', the reports were nonetheless in the Ministry's 'custody' because they were integrated into the Ministry's operations and used for its own core functions.

The court concluded that disclosing the severed portions would not compromise judicial independence and dismissed the application.

The respondents, who suffered from severe alcoholism, were denied disability benefits under the Ontario Disability Support Program Act (ODSPA) because s. 5(2) disqualifies individuals whose sole impairment is substance dependence.

The Social Benefits Tribunal found this provision discriminated against the respondents based on disability, contrary to s. 1 of the Human Rights Code.

The Divisional Court upheld this decision but proposed a new test for discrimination.

On appeal, the Court of Appeal rejected the Divisional Court's new test, finding it improperly removed the requirement to prove disadvantage and reversed the burden of proof.

However, the Court dismissed the appeal, upholding the Tribunal's finding that s. 5(2) of the ODSPA was discriminatory and rejecting the appellant's expert evidence that the policy was medically appropriate.

The Director of the Ontario Disability Support Program appealed a Social Benefits Tribunal decision finding that s. 5(2) of the ODSPA, which denies benefits to individuals whose sole impairment is addiction, violated the Human Rights Code.

The Divisional Court dismissed the appeal, upholding the Tribunal's finding that the respondents, who were disabled by alcoholism, were discriminated against.

The Court confirmed that the Tribunal was not required to apply the third, dignity-focused step of the Law test to establish discrimination under the Code.

The Complainant brought a motion to amend his human rights complaints to claim general and liquidated damages for alleged harm to his medical condition caused by the denial of access to services, as well as legal fees.

The Respondents opposed the amendments, arguing prejudice due to delay and the Complainant's previous abandonment of these claims.

The Tribunal allowed the amendments for general and liquidated damages, finding that the Respondents failed to establish actual prejudice that could not be cured by an adjournment.

However, the Tribunal denied the request to amend the complaints to claim legal fees, as it lacks jurisdiction to award costs to a complainant under the Human Rights Code.

The Ontario Court of Appeal heard two appeals concerning the definition of 'spouse' under Ontario's social assistance legislation.

In the Falkiner appeal, the court held that the 1995 'spouse in the house' rule, which presumed a spousal relationship based on co-residency and financial arrangements, violated s. 15(1) of the Charter.

The court recognized 'receipt of social assistance' as an analogous ground of discrimination and found the definition discriminated on the basis of sex, marital status, and receipt of social assistance.

The violation was not justified under s. 1.

In the Thomas appeal, the court found the Board erred in classifying a disabled man and his caregiver as spouses without considering if the relationship was marriage-like or accounting for his disability.

The government's appeal in Falkiner was dismissed, and Thomas's appeal was allowed.

The appellants, non-band aboriginal communities, challenged their exclusion from the proceeds of Ontario's first reserve-based commercial casino (the First Nations Fund).

The province had restricted the distribution of the fund to First Nations communities registered as bands under the Indian Act.

The Supreme Court of Canada held that the exclusion did not violate s. 15(1) of the Charter, as the casino project was a targeted ameliorative program designed to support the self-reliance and self-government of First Nations bands, and the exclusion did not demean the appellants' human dignity.

The Court also held that the province did not act ultra vires its jurisdiction under s. 91(24) of the Constitution Act, 1867, as it was simply exercising its spending power.

The complainant requested reconsideration of an earlier interim decision deferring a constitutional question to the courts, and sought to amend her human rights complaint.

The Board of Inquiry held that it lacked jurisdiction to reconsider its decision because its rules of practice do not provide for reconsideration, as required by the Statutory Powers Procedure Act.

The Board also dismissed the motion to amend the complaint, finding that the proposed amendments did not assert new grounds of discrimination but merely pleaded additional evidence and particularized allegations already covered by the original complaint, which the respondents had already conceded.