Tina H. Hill

This is a class action settlement approval motion involving sexual assault and voyeurism by a physician at a university health clinic.

The representative plaintiffs sought court approval of a $21,050,000 settlement on behalf of a class of approximately 150-200 patients who were photographed, videotaped, and/or sexually assaulted without their knowledge or consent.

The settlement was reached after extensive negotiations including mediation and three days of judicial pre-trial conferences.

The court approved the settlement as fair, reasonable, and in the best interests of the class members, addressing concerns about the claims process, trauma-informed procedures, honoraria for representative plaintiffs, legal fees, and various disbursements.

The plaintiff, Ari Lesser, brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking an order requiring third party Cogeco Connexion Inc. to disclose basic subscriber information associated with a specific IP address.

The court distinguished between Norwich orders and Rule 30.10 orders, finding that as an Associate Judge, it could not grant equitable relief but could grant the requested order under Rule 30.10.

The court found the information sought was relevant and necessary, and that the plaintiff had established a prima facie case against the unknown defendants.

The motion was granted.

The plaintiff, Ari Lesser, brought a motion for a Norwich order compelling Change.org to produce subscriber information identifying the creator of a petition that allegedly defamed him.

The court reviewed the legal test for granting a Norwich order, including the necessity of the information, the relationship between the applicant and the third party, and the interests of justice.

The court found that all criteria were met and granted the order, allowing the plaintiff to obtain the requested information from Change.org.

The defendant, His Majesty the King in Right of Ontario, brought a motion to strike a single paragraph from the plaintiff Jennifer Demers' statement of claim.

The defendant argued the paragraph, which quoted Justice Wright's comments from Demers' prior criminal acquittal describing the police investigation as "deplorable" was argumentative, pleaded inadmissible evidence, and was inflammatory.

The court dismissed the motion, finding the paragraph asserted material facts relevant to a claim for punitive damages and that the admissibility of Justice Wright's decision was a matter best left to the trial judge.

The court also noted the motion was brought late in the proceedings, causing unnecessary delay.

The appellant, a defendant in a defamation action, appealed a motions judge's decision refusing her leave to amend her statement of defence.

The motions judge had found the proposed amendments were properly pleaded and caused no prejudice, but concluded the motion itself was an abuse of process because the appellant had previously sought broad disclosure without particularizing her defence.

The Divisional Court allowed the appeal, holding that Rule 26 is broadly permissive and the motion to amend was not an abuse of process, as the amendments were integral to the defence and caused no prejudice.

The court permitted the amendments but upheld the motions judge's adverse costs award against the appellant for her prior litigation conduct.

The defendant brought a motion in writing on consent for leave to amend its statement of defence and crossclaim.

The court found multiple deficiencies in the motion record, including the failure to attach the proposed amended pleading, lack of supporting affidavit evidence, and an improperly drafted consent and draft order.

Despite the motion being on consent, the court adjourned the motion and ordered the moving party to deliver a fresh, corrected motion record.

The appellant, a Senator, sued the Senate and the Attorney General of Canada for damages arising from his suspension from the Senate for allegedly claiming inappropriate expenses.

The Senate successfully moved to dismiss the action against it for lack of jurisdiction based on parliamentary privilege.

On appeal, the Court of Appeal upheld the dismissal, finding that the Senate's actions fell within established categories of parliamentary privilege, including the power to discipline its members, administer its internal affairs, and control parliamentary proceedings and freedom of speech.

The Court held that parliamentary privilege immunized the Senate's actions from judicial review, even where unlawful conduct or Charter breaches were alleged.

This case conference order, issued amidst temporary court suspensions due to COVID-19, established a timetable for a class action proceeding.

The court provided specific directions for the conduct of a "Wagg motion" and set a tentative date for the certification motion.

Directions included provisions for electronic swearing of affidavits, service methods, and electronic filing of materials, aiming to facilitate the litigation process under the prevailing restrictions.

The appellant, counsel for plaintiffs in the Indian Residential Schools Settlement Agreement proceedings, appealed a decision of the Eastern Administrative Judge refusing to recuse himself from determining a request for costs against her personally.

The Divisional Court found that the judge's prior direction, which contained substantive findings against the appellant without notice or opportunity to respond, created a reasonable apprehension of bias.

The appeal was allowed, the costs orders were set aside, and the costs matter was remanded to a different judge.

The defendants, the Ottawa Police Services Board et al., brought a motion for summary judgment seeking to dismiss the plaintiff's claim of negligent investigation.

The plaintiff, a 74-year-old Polish-speaking man with limited English, was arrested and charged with sexual assault and forcible confinement based on a complaint from an individual with a significant history of police contacts and dishonesty, which was not disclosed at the plaintiff's bail hearing.

The court found that while initial reasonable grounds for arrest might have existed, there were conflicting expert opinions regarding the police's standard of care in their subsequent and ongoing investigation.

Citing the Supreme Court's framework in Hyrniak v. Mauldin, the court determined that these genuine issues of fact, particularly the contentious expert evidence on causation and standard of care, required a trial.

The defendants' motion for summary judgment was dismissed, and they were ordered to pay costs to the plaintiff.

The defendants moved for an order compelling the plaintiff to re-attend discovery and for the defendants to be present during her examination.

The plaintiff cross-moved to exclude the defendants from her discovery and from each other's discoveries, citing psychological distress.

The court dismissed the plaintiff's motion, affirming the inherent right of parties to attend discoveries.

While not finding exceptional circumstances for full exclusion, the court ordered the plaintiff's examination to proceed via video conference, with the plaintiff and her counsel in one room and the defendants and their counsel in another, to mitigate potential distress.

The plaintiff was ordered to pay costs thrown away due to the cancellation of the original examinations.

Senator Michael Duffy sued the Senate of Canada for over $7 million in damages, alleging his suspension and denial of expenses were politically motivated, unconstitutional, and violated his Charter rights, despite his acquittal on criminal charges.

The Senate moved to dismiss the action, asserting parliamentary privilege.

The court granted the Senate's motion, finding that the Senate's decisions regarding member discipline, internal affairs, proceedings, and freedom of speech were protected by parliamentary privilege and thus immune from judicial review.

The defendant police services board brought a motion to strike paragraph 28 of the plaintiff's amended statement of claim without leave to amend.

The court found that the plaintiff's amendments, which alleged the board failed to have a system to track Charter violations and excessive force by officers, fell under the board's statutory responsibilities and provided sufficient material facts.

The motion to strike the paragraph in its entirety was dismissed, though the word 'training' was struck as it violated a previous order.

The defendants brought a motion to strike paragraph 64 of the plaintiff's Amended Amended Statement of Claim without leave to amend.

The plaintiff had previously been granted leave to amend certain subparagraphs.

The court found that the plaintiff could not add the Chief of Police to the narrative as it was outside the scope of the previous order.

However, the court held that the plaintiff had provided sufficient material facts to support the novel claim that the Police Services Board failed to have a system in place to recognize officers' propensity for Charter breaches.

The motion to strike paragraph 64 in its entirety was dismissed, with costs awarded to the plaintiff.

The defendants, the Ottawa Police Services Board and several officers, brought a motion to strike paragraph 64 of the plaintiff's Amended Statement of Claim.

The court applied the test for striking pleadings and found that the paragraphs relating to training and supervision should be struck without leave to amend, relying on established case law.

The court also struck the remaining paragraphs for failing to provide sufficient material facts, but granted leave to amend those specific portions.

The motion was granted and costs were awarded to the defendants.

The defendant Ottawa Police Services Board brought a motion to strike paragraph 28 of the plaintiff's Statement of Claim.

The court found that paragraphs 28(a) and (b) lacked sufficient material facts to support the allegations regarding the Board's knowledge of the officers' propensity for excessive force, and struck them with leave to amend.

Paragraphs 28(c), (d), and (e), which related to training and supervision, were struck without leave to amend based on established precedent.

The plaintiff was ordered to pay costs of $3,360.

The plaintiffs, Upper Canada District School Board and Patricia Brown, sought an interim injunction to compel the defendant, James Gilcig o/a Seaway Media, to remove two allegedly defamatory publications from the internet and prohibit future similar publications.

The publications concerned Ms. Brown's handling of swastika graffiti at a school in 2013.

The court applied the modified test for interim injunctions in defamation cases, which requires a high degree of certainty that the plaintiff will succeed at trial and that the words are manifestly defamatory and impossible to justify.

While acknowledging the potential reputational harm to the plaintiffs, the court found that the plaintiffs' evidentiary record was incomplete, specifically lacking a sworn deposition from maintenance staff regarding the timely removal of the graffiti.

Consequently, the motion for an interim injunction was dismissed, though the plaintiffs were not precluded from bringing the motion again with a more complete record.