Savitri Gordian

The Court of Appeal for Ontario considered when a gender affirming surgery, specifically a vaginoplasty without penectomy, qualifies as an insured service under the Ontario Health Insurance Plan (OHIP).

The court held that vaginoplasty is a specifically listed insured service in the Schedule of Benefits, regardless of whether it is accompanied by a penectomy, and that the exclusion for experimental procedures does not apply to specifically listed services.

The appeal by the General Manager of OHIP was dismissed.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

The applicants sought an order for restitution and vacating of victim fine surcharges imposed between 2013 and 2018, following the Supreme Court of Canada's decision in R. v. Boudreault which found the surcharge unconstitutional.

The court granted the order vacating the unpaid surcharges for the applicant, Serge Parent, finding it just and appropriate under s. 24(1) of the Charter, and that the limitation period had not expired.

However, the court dismissed the request for restitution of already paid surcharges and the broader class remedy, noting that s. 24(1) is for personal remedies and that government measures had ameliorated some harms.

The applicant church sought $75,000 in costs after being unsuccessful on an urgent application for an interim injunction to stay COVID-19 restrictions on in-person religious services.

The church argued costs were warranted because the case raised a novel issue of significant public importance.

The court dismissed the request, finding that the injunction application focused on the narrow interests of the church rather than broad public interest, and turned on settled legal principles rather than novel issues.

No costs were awarded to either party for the injunction application.

The applicant church sought an interim injunction to exempt it from O. Reg. 82/20, which restricted religious gatherings to a maximum of ten people in regions designated as Stage 1 during the COVID-19 pandemic.

The church argued the regulation infringed its freedom of religion under s. 2(a) of the Charter.

Applying the RJR-MacDonald test, the court found that the church established a serious issue to be tried and irreparable harm.

However, the court concluded that the balance of convenience favoured the respondent, as the public interest in protecting health and preventing the spread of COVID-19 outweighed the temporary restriction on the church's religious freedom.

The application for an interim injunction was dismissed.

The appellants appealed a Superior Court decision finding that frequent lockdowns at Maplehurst Correctional Complex violated the Charter rights of two remanded inmates under section 12 (cruel and unusual treatment).

The Court of Appeal allowed the appeal, finding that the application judge had significantly overstated the frequency, duration, and impact of lockdowns affecting the respondents.

The court concluded that while lockdowns occurred more frequently than ideal, they did not rise to the level of cruel and unusual treatment.

The court also found procedural unfairness in the award of damages without notice to the parties and rejected alternative arguments based on sections 7 and 10(c) of the Charter.

The appellant appealed from a Superior Court order dismissing his application on the grounds of res judicata and abuse of process.

The appellant had previously brought an application challenging the constitutionality of sections of the Human Rights Code of Ontario, which was dismissed by Wright J. He subsequently refiled the application with additional research and content.

The Court of Appeal upheld the dismissal, finding that the refiled application was fundamentally an attempt to re-litigate the issues already decided by Wright J. The court also rejected the appellant's claim of procedural unfairness, noting that the trial judge had provided both parties with the opportunity to make oral submissions.

The accused pleaded guilty to manslaughter and, during the sentencing hearing, sought to bring a Charter application for declaratory relief and damages under s. 24(1) due to his treatment in pre-trial solitary confinement.

The court declined to hear the application, ruling that a criminal sentencing hearing is not the appropriate forum for a complex civil damages claim, which should instead be pursued in the civil courts.

The applicant, incarcerated and self-represented, brought a summary application seeking constitutional declarations and $2 million in damages against the Crown, alleging violations related to frequent lockdowns, inadequate medical and legal assistance, and denial of religious freedoms at Toronto South Detention Centre.

The Crown moved to convert the application to an action, arguing that the complexity, anticipated credibility issues, and volume of evidence necessitated a full trial process with documentary and oral discoveries.

The court granted the Crown's motion, converting the application to an action, finding that a structured action process would be fairer, more affordable, and ultimately more efficient given the substantial damages claimed and the applicant's detailed rebuttal to the Crown's anticipated evidence.

The Ministry of Community Safety and Correctional Services and Toronto South Detention Centre were removed as respondents.

The applicants, an immigration detainee and a remand detainee housed in a maximum security provincial correctional facility, brought an application for habeas corpus and a remedy under s. 24(1) of the Charter.

They alleged that frequent and unpredictable lockdowns, primarily caused by staff shortages, violated their Charter rights.

During lockdowns, inmates were confined to their double-bunked cells for 24 hours a day with limited access to showers, phones, and programs.

The court found that the conditions during the lockdowns, which occurred approximately 50% of the time, constituted cruel and unusual treatment in violation of s. 12 of the Charter.

The court declined to order a systemic remedy or a transfer, but awarded Charter damages of $60,000 to the immigration detainee (payable jointly by Ontario and Canada) and $25,000 to the remand detainee (payable by Ontario).