Sunil S. Mathai

The plaintiff sued the police and Crown Attorneys for negligent investigation, unlawful arrest, and intentional infliction of mental suffering following an acquittal on a murder charge that involved a 'Mr. Big' operation.

The Crown Attorneys moved to strike the plaintiff's claim and a crossclaim brought by the police for negligent legal advice.

The court struck the plaintiff's claim against the Crown Attorneys, finding it barred by absolute common law immunity, which only allows claims for malicious prosecution.

However, the court refused to strike the police crossclaim for negligent legal advice, finding it was not plain and obvious that Crown Attorneys do not owe a duty of care to police when providing legal advice during an investigation.

The court also held that statutory immunity under s. 8 of the Ministry of the Attorney General Act applied to the plaintiff's claim but not the crossclaim.

The appellants, environmental groups, appealed a Divisional Court decision dismissing their judicial review application challenging the vires of O. Reg. 176/13 under the Endangered Species Act, 2007.

The regulation provided exemptions from the Act's prohibitions.

The appellants argued the Minister failed to meet a statutory condition precedent by not considering the effect of the regulation on each individual species, and that the regulation's purpose was inconsistent with the Act.

The Court of Appeal dismissed the appeal, finding the Minister properly considered the effect on each species and the regulation was not inconsistent with the Act's purpose.

The applicant sought judicial review of a decision by AgriCorp awarding it compensation under the AgriStability program, arguing that the participation of AgriCorp staff at multiple stages of the decision-making process created a reasonable apprehension of bias.

The Divisional Court dismissed the application, finding that AgriCorp is essentially a delegate of the Minister exercising executive functions, and the required level of impartiality is that of an 'open mind'.

The court concluded that AgriCorp maintained an open mind and that the staff's involvement did not give rise to a reasonable apprehension of bias.

The respondents' family members were killed in a motor vehicle collision caused by a driver fleeing a high-speed pursuit by the Akwesasne Mohawk Police Service.

The respondents sued the police service and the governments of Ontario, Quebec, and Canada, alleging vicarious liability and direct negligence.

The governments appealed the dismissal of their summary judgment motions and the granting of the respondents' motion to amend their pleadings.

The Court of Appeal allowed the appeals, finding that the quadripartite policing agreement did not create a relationship sufficiently close to impose vicarious liability on the provinces, and that the governments owed no private law duty of care to the deceased based on a 1991 audit report.

The applicants, two environmental organizations, brought an application challenging the validity of Ontario Regulation 176/13 made under the Endangered Species Act, 2007.

They argued the Minister failed to meet a mandatory condition precedent under s. 57(1) of the Act and that the regulation was inconsistent with the Act's purposes.

The Divisional Court dismissed the application, finding that the Minister had properly formed the required opinion that the regulation would not jeopardize the survival of species at risk, and that the regulation's balancing of environmental protection with economic considerations was consistent with the broader purposes of the Act.

The applicant sought to be relieved from paying costs under the public interest principle after its application was dismissed.

The Divisional Court declined to deprive the respondents of costs, noting that while the applicant had no pecuniary interest, the application was without legal basis given clear and recent precedent.

The applicant was ordered to pay partial indemnity costs of $10,000 to each of the respondents.

The applicant sought judicial review of the Ministry of Natural Resources and Forestry's alleged decision to exempt a wind farm project from compliance with the Endangered Species Act regarding the Redside Dace.

The Ministry had communicated via email that there were no Redside Dace issues in the project area, and thus the proponent did not need to apply for a permit.

The Divisional Court dismissed the application, finding that the Ministry's emails did not constitute an exercise of a statutory power of decision subject to judicial review, applying the precedent from Sierra Club.

The applicants, who recently took over the operation of a convenience store, sought judicial review of a Minister's decision applying a tobacco sales prohibition order to them.

The prohibition was issued under section 16 of the Smoke-Free Ontario Act because employees of the prior, unrelated operator had been twice convicted of selling tobacco to minors.

The Divisional Court allowed the application, holding that on a purposive interpretation of the Act, the prohibition can only be applied to a person who has committed at least one tobacco sales offence.

Since the applicants had never been convicted of such an offence, the Minister lacked jurisdiction to apply the prohibition to them.

Following earlier litigation involving the issuance of Notices of Prohibition by the Ministry, the successful party sought costs for multiple court attendances.

The court held that although costs were not specifically addressed at earlier hearings, they were necessary steps in the litigation and the successful party was entitled to recover costs.

The judge expressed concern that the ministry refused to hold its Notices of Prohibition in abeyance to allow an orderly hearing and indicated that substantial indemnity costs might otherwise have been appropriate.

However, due to deficiencies in the bill of costs and excessive hours claimed for research, the court reduced the hours and awarded partial indemnity costs.

Final costs were fixed at $45,076.33 inclusive of disbursements and HST.

East Durham Wind, LP moved to be added as a party or intervener in an application for judicial review concerning a Renewable Energy Approval for its wind project.

The applicant opposed the motion, while the respondent Ministry consented.

The court granted East Durham Wind party intervener status under Rule 13.01, finding it had a direct economic interest and could make a useful contribution.

The court also granted the moving party's request to conditionally transfer the proceeding from Brampton to Toronto to facilitate an expedited hearing before the scheduled start of project construction.

Following a motion decision dismissing a request to amend a statement of defence to add a cross‑claim against Ontario and Canada as statute‑barred, the court addressed Ontario’s claim for costs.

The unsuccessful party argued that Ontario acted opportunistically by waiting until after the limitation period expired to raise the limitation defence and submitted that each party should bear its own costs or that Ontario’s rates should be reduced.

The court rejected the allegation of opportunism and confirmed that costs for the Crown are assessed based on fairness and reasonableness rather than actual internal billing rates.

After considering the hours claimed, the applicable partial indemnity rate guidance, and comparative information regarding Canada’s costs settlement on the same motion, the court exercised its discretion to reduce the requested amount.

Costs were awarded to Ontario in the amount of $6,000 inclusive.

The applicant supermarket owner sought judicial review of an automatic prohibition issued under the Smoke-Free Ontario Act after employees were convicted of selling tobacco to minors.

The prohibition barred the store from selling tobacco products for nine months based solely on employee convictions, even though the employer had never been charged and had no opportunity to assert the statutory due diligence defence available to owners.

The court found that the Ministry’s notice process, information system, and decision-making framework failed to provide adequate notice or a meaningful opportunity for the employer to present a defence.

Because the administrative system did not record or consider whether the employer had exercised due diligence, the issuance of the prohibition violated procedural fairness and frustrated the statutory scheme.

The notice of prohibition was quashed.

The appellant sought out-of-country funding for surgery to repair a medical condition, arguing that a delay in Ontario would cause irreversible tissue damage.

The Health Services Appeal and Review Board denied the request, and the appellant appealed to the Divisional Court.

The appellant argued the Board lost jurisdiction by reconstituting the hearing panel and ignored medical evidence regarding tissue damage.

The Divisional Court dismissed the appeal, finding no procedural unfairness in the panel reconstitution and concluding the Board's decision on the medical evidence was reasonable.

This appeal and cross-appeal addressed whether Ontario’s SIU framework permits police officers involved in fatal incidents to consult counsel before completing duty notes.

The majority held the regulatory scheme does not permit consultation with counsel at the note-making stage, emphasizing transparency, public confidence, legislative history, and the duty to prepare independent, complete notes.

It rejected even limited pre-note legal consultation as inconsistent with the scheme’s objectives, while confirming officers may consult counsel after filing notes.

The cross-appeal was allowed, overturning the Court of Appeal’s allowance of basic legal advice prior to notes.

Dissenting reasons on cross-appeal would have preserved a narrow right to basic legal advice that excluded drafting assistance.

The self-represented applicant brought a motion seeking to vary a prior endorsement denying urgency, to set aside a costs award, and to obtain declarations relating to alleged misconduct by a respondent in a judicial review proceeding concerning an order under the Freedom of Information and Protection of Privacy Act.

The court reviewed the transcript of the earlier motion and found that the prior judge’s determination regarding urgency and the costs award were supported by the record and applicable law.

The applicant failed to establish any basis to vary the earlier endorsement or to set aside the costs award.

The court concluded the judicial review application was not urgent and ordered that the matter be transferred to the Divisional Court pursuant to the Judicial Review Procedure Act.

Costs of the motion were awarded to the Information and Privacy Commissioner.

The appellant filed a police misconduct complaint under the Police Services Act and commenced a parallel civil action for damages arising from the same arrest.

After the disciplinary hearing officer found the officers not guilty, the respondents successfully moved to strike the civil claims on the basis of issue estoppel.

The Supreme Court of Canada, in a 4-3 decision, allowed the appeal, holding that while no public policy rule should categorically exclude police disciplinary hearings from issue estoppel, the Court of Appeal erred in its discretionary analysis by failing to consider the significant differences in purpose, scope, and stakes between the two proceedings, the parties' reasonable expectations, and the unfairness of permitting the Chief of Police's designate's decision to exonerate the Chief from civil liability.

During a second degree murder jury trial, the defence applied for an inquiry under s. 644 of the Criminal Code to determine whether a juror should be discharged due to alleged conduct suggesting partiality, including turning away during the accused’s testimony and making gestures during closing submissions.

The court held that the alleged behaviour did not meet the high threshold required to justify an inquiry into a juror’s fitness.

Juror conduct must raise a serious issue regarding the ability to perform duties before the court interferes with jury secrecy.

The court emphasized that jurors may form provisional views during trial provided they remain open to deliberation.

The application for an inquiry and the related request for a mistrial were dismissed.

The applicants, family members of individuals whose deaths were investigated by the Special Investigations Unit (SIU), sought a declaration that police officers involved in SIU investigations are not entitled to legal assistance in preparing their notes.

The application judge dismissed the application on grounds of standing, justiciability, and mootness.

The Court of Appeal allowed the appeal, finding the applicants had public interest standing and the issues were justiciable and not moot.

Exercising its jurisdiction to decide the substantive issues, the Court held that the Police Services Act and the SIU Regulation do not permit police officers to have a lawyer vet or assist in the preparation of their notes, though they may obtain basic legal advice regarding their rights and duties provided it does not delay note completion.

The respondents moved to strike or quash portions of the appellants' Notice of Appeal, specifically a request for a declaration and a ground of appeal relating to justiciability and standing.

The Court of Appeal dismissed the motion, deferring the jurisdictional issue to the panel hearing the appeal.

The appellants' cross-motion to have the appeal case-managed was granted, with costs of the motion awarded to the appellants.

The Superintendent appealed a Divisional Court decision that set aside a Licence Appeal Tribunal order revoking the registration of a private career college.

The Divisional Court had found a reasonable apprehension of bias based on the adjudicator's statement that the self-represented principal was 'misleading the Tribunal' and her irrelevant questioning about his possible ties to a terrorist organization.

The Court of Appeal dismissed the appeal, upholding the finding of bias, rejecting the argument that the bias claim was waived, and affirming that a new hearing was the appropriate remedy despite the strength of the Superintendent's case.