Sujit Choudhry

Six organizations brought motions for leave to intervene in an appeal from an order dismissing the certification of a proposed class action regarding the overrepresentation of Indigenous children in the child welfare system.

The motion judge granted leave to intervene to the Anishinabek Nation, the British Columbia Civil Liberties Association, the Chiefs of Ontario, and the Nishnawbe Aski Nation, finding they would provide useful and unique perspectives on the issues raised on appeal.

The motions by the Hiawatha First Nation and Nigig Nibi Ki-win Gamik were dismissed because their proposed submissions would improperly expand the scope of the appeal and the evidentiary record.

The appellant, an independent health facility operator, appealed a decision of the Health Services Appeal and Review Board upholding the Minister of Health's order to repay nearly $300,000 in facility fees for limited pelvic ultrasounds.

The Board found the appellant improperly billed for these ultrasounds because they were not requested by a referring physician or radiologist and their medical necessity was not adequately documented.

The Divisional Court dismissed the appeal, finding the Board correctly determined its hearing was de novo, the process was procedurally fair, and the appellant failed to meet the statutory documentation requirements for reimbursement.

Ten groups brought motions for leave to intervene in an appeal concerning whether a municipal by-law prohibiting individuals from erecting tents or living in public parks violated sections 7 and 15 of the Charter.

The motion judge granted leave to intervene to seven groups, finding they would provide unique and helpful perspectives on issues such as Charter damages, international human rights standards, and the social context of homelessness.

Leave was denied to three groups whose proposed submissions either expanded the scope of the appeal or duplicated arguments already raised by the parties.

The respondent sought an extension of the suspension of the declaration of invalidity of certain provisions of the Citizenship Act.

The declaration was originally suspended for six months from December 19, 2023, and has been extended multiple times.

The respondent sought an extension to January 20, 2026 (reduced from April 22, 2026 by consent).

The court granted a two-month extension to January 20, 2026, noting significant progress in enacting replacement legislation with a reasonable expectation that it may come into force by the end of 2025.

The court adjourned the balance of the motion to January 13, 2026.

A case management conference was held to schedule the next steps in an appeal concerning the eviction of individuals from city parks.

The case management judge set deadlines for perfecting the appeal, filing responding materials, a motion for fresh evidence, and intervention motions.

The judge also granted the parties leave to file factums up to 12,000 words, exceeding the standard limits, due to the extensive evidentiary record involving fourteen appellants.

The Court of Appeal for Ontario considered whether it could hear an appeal of two interlocutory orders together with an appeal of a final order in a Charter challenge by 14 unhoused individuals against the City of Hamilton.

The interlocutory orders excluded physician evidence and demographic data relevant to the Charter claims.

The Court held that because the interlocutory and final orders were so interrelated, leave to appeal the interlocutory orders would inevitably have been granted, and thus the appeals could be heard together.

The motion to strike the grounds relating to the interlocutory orders was dismissed.

The respondent, the Attorney General of Canada, sought a 12-month extension of the suspension of the declaration of invalidity regarding the first-generation limit on derivative citizenship in the Citizenship Act.

The court had previously declared the provisions unconstitutional under sections 6 and 15 of the Charter but suspended the declaration to allow Parliament to pass remedial legislation.

Due to the recent prorogation and dissolution of Parliament for a general election, the government was unable to pass the remedial bill.

The court granted a shorter extension of the suspension to November 20, 2025, balancing the need for Parliament to address the complex legislative scheme against the ongoing rights violations of affected individuals.

The court considers a motion by the Attorney General of Canada for a further extension of the suspension of a declaration of invalidity regarding certain provisions of the Citizenship Act, previously found unconstitutional.

The court reviews the history of prior extensions, the respondent’s reliance on Parliament’s prorogation, and the adequacy of interim measures for rights-holders.

Finding the respondent’s evidence on expanded interim measures insufficient, the court grants a short extension and directs the respondent to file further evidence and argument, with a return date set for April 11, 2025.

The moving party brought an urgent motion seeking a further three-month extension of the suspension of a declaration of invalidity regarding sections of the Citizenship Act.

The court previously found the limits on derivative citizenship unconstitutional and suspended the declaration to allow Parliament to pass remedial legislation.

Despite finding that the government had not acted with sufficient diligence in advancing the replacement bill, the court reluctantly granted the extension to March 19, 2025, balancing the public interest in having replacement legislation, the complexity of the citizenship regime, and the potential for chaos if the unconstitutional law was struck down without a replacement.

Costs were awarded to the responding party.

The Ontario Human Rights Commission (OHRC) appealed a Superior Court decision denying its leave to intervene as a friend of the court in an application challenging the constitutionality of municipal by-laws related to encampments.

The Court of Appeal quashed the appeal for want of jurisdiction, holding that an order denying leave to intervene as a friend of the court is an interlocutory order, not a final order, and therefore not appealable to the Court of Appeal under the Courts of Justice Act.

The court distinguished between party interventions (which may be final orders) and friend of the court interventions (which are interlocutory).

The appellant, Valerie Jacob, a recipient of Canada Pension Plan Disability Benefit (CPP-D), challenged the eligibility criteria for the Canadian Emergency Response Benefit (CERB) and Canadian Recovery Benefit (CRB) during the COVID-19 pandemic.

She argued that the $5,000 income threshold and the exclusion of CPP-D from eligible income sources violated her equality rights under s. 15(1) of the Charter.

The application judge dismissed her claim.

On appeal, the Court of Appeal found that the income threshold and the exclusion of CPP-D did constitute a breach of s. 15(1) due to their disproportionate impact on disabled workers.

However, the Court further concluded that this breach was justified as a reasonable limit under s. 1 of the Charter, given the emergency context of the pandemic and the government's need for a simple, fast mechanism for benefit delivery, along with subsequent ameliorative measures like relaxed Employment Insurance rules.

The appeal was dismissed, and no costs were ordered.

This endorsement addresses a motion by the Attorney General of Canada for a further extension of the suspension of a declaration of invalidity concerning sections 3(3)(a) and 3(3)(b) of the Citizenship Act, which were previously found to contravene the Charter.

The court assessed the respondent's updated mechanism for addressing urgent hardship cases and the progress of Bill C-71, intended to remedy the unconstitutional provisions.

The court found the hardship mechanism sufficient and the legislative progress satisfactory, concluding that a further extension would not undermine confidence in the administration of justice.

The extension was granted until December 19, 2024, and the applicants were awarded partial indemnity costs.

The Attorney General of Canada brought an urgent motion seeking a six-month extension of a suspended declaration of invalidity concerning sections 3(3)(a) and 3(3)(b) of the Citizenship Act, which were previously found unconstitutional for limiting derivative citizenship.

The applicants opposed the extension or sought conditions.

The court granted a shorter extension until August 9, 2024, with a further hearing scheduled for August 1, 2024, to review progress on remedial legislation (Bill C-71) and an improved plan for addressing hardship cases.

The court also ordered that constitutional exemptions be granted to other first-generation born abroad applicants.

This decision addresses a motion for leave to intervene in an appeal concerning a s. 15 Charter challenge to COVID-19 benefit programs.

The Canadian Civil Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC) sought leave to intervene as friends of the court.

The appellant consented to both interventions, while the respondent opposed ISAC's motion.

The court granted both motions, finding that both interveners would provide unique and useful contributions, particularly on issues of remedy, retroactive application of invalidity declarations, and the application of substantive equality analysis in the context of disability and income security programs.

This decision provides supplementary reasons to a constitutional application that previously found s. 3(3)(a) of the Citizenship Act unconstitutional for creating a second-generation cut-off for citizenship by descent.

The court clarifies and amends its prior order, extending the declaration of invalidity to s. 3(3)(b) of the Act, which also imposes a second-generation cut-off for those born before 1977.

It also amends the constitutional exemptions granted to specific applicants and their children, including those born after the initial hearing, and extends the deadline for issuing citizenship certificates due to logistical issues.

The applicants challenged the constitutionality of the 'second-generation cut-off' in s. 3(3)(a) of the Citizenship Act, which prevents Canadian citizens born abroad from automatically passing citizenship to their children born abroad.

The Superior Court of Justice found that the provision violates s. 15(1) of the Charter by discriminating on the basis of national origin and the intersection of national origin and sex.

The court also found a violation of s. 6(1) mobility rights, as the law penalizes first-generation born abroad Canadians for choosing to live and work abroad.

The violations were not saved by s. 1.

The court declared the provision of no force or effect, suspended the declaration for six months, and granted constitutional exemptions to specific applicants, but denied Charter damages.

The applicant, Valerie Jacob, challenged the $5,000 income eligibility criteria for the Canada Emergency Response Benefit (CERB), Canada Recovery Benefit (CRB), and Canada Recovery Sickness Benefit (CRSB), asserting it violated her section 15(1) Charter right due to her physical disability.

The court applied the two-step test from R. v. Sharma, finding that the applicant failed to demonstrate a disproportionate impact based on disability (first step) and that the criteria did not reinforce, perpetuate, or exacerbate disadvantage (second step).

The court concluded the $5,000 threshold was not arbitrary, being based on a minimum workforce attachment benchmark, and applied equally to disabled and non-disabled individuals who did not meet it.

The application was dismissed without costs.

This is a motion for leave to intervene as a friend of the court in an appeal of a costs award made against a non-party public interest organization.

The proposed interveners, a group of three public interest organizations, sought to make submissions on the appropriate legal standard for awarding non-party costs against non-profit and public interest organizations, particularly concerning fundraising activities.

The court granted leave to intervene, finding that while the underlying dispute was private, the issues raised involved broader public policy considerations, and the proposed interveners could offer a useful, non-duplicative contribution to the appeal.

This is a costs endorsement following the dismissal of the respondents' motion to strike the applicants' amended notice of application.

The applicants sought substantial indemnity costs, but the court awarded partial indemnity costs, significantly reducing the amount claimed.

The court found the applicants' costs disproportionate, particularly regarding fees for amending their own deficient pleading, senior counsel rates for drafting, and unnecessary travel/disbursements for a virtual hearing.

The court emphasized that while the applicants won the underlying motion, their approach to costs was unreasonable.

The applicants sought an order requiring the federal government to regulate Twitter to prevent it from refusing to sell them 'promoted tweets' for their political documentary film.

The Attorney General moved to dismiss the application for failing to state a reasonable cause of action.

The court applied the Supreme Court of Canada's test for positive rights under section 2(b) of the Charter, finding that the applicants were not effectively precluded from meaningful expression, as they could still use regular tweets and other advertising mediums.

The court also held that the relief sought was not justiciable, as it would require the court to set legislative priorities.

The motion was granted and the application was dismissed.