Vanessa May Marie Glasser

The Court of Appeal for Ontario dismissed the appeal from the denial of certification of a class action alleging systemic negligence in the use of seclusion and restraint at a forensic psychiatric hospital.

The court found that the motion judge did not err in concluding that the claims lacked commonality, as the alleged wrongdoing could only be determined on an individual basis.

The court also upheld the dismissal of claims against individual hospital administrators and affirmed the costs award, finding no reversible error in the motion judge’s analysis.

The Empowerment Council sought leave to intervene as a friend of the court in an appeal from the refusal to certify a proposed class action concerning psychiatric inpatients at Waypoint Centre for Mental Health Care.

The Court of Appeal dismissed the motion, finding that the proposed intervener’s submissions were largely duplicative of the appellants’ and would not usefully contribute to the resolution of the appeal without prejudicing the parties.

This decision addresses the costs of a "Hybrid Motion" brought by Iskatewizaagegan No. 39 Independent First Nation against the City of Winnipeg and His Majesty the King in Right of Ontario.

The First Nation sought leave to amend its statement of claim to increase damages and clarify the "Headlands Issue," a ruling on a legal issue, and a refusals motion.

The motion had mixed success for all parties.

The First Nation requested substantial indemnity costs of over $200,000, while the defendants sought no costs or partial indemnity of $15,000-$20,000.

The court awarded the First Nation partial indemnity costs of $90,000, payable in the cause, finding no basis for substantial indemnity due to the procedural nature of the motion and the absence of punitive conduct.

The court also noted that principles of reconciliation were not argued on the motion and did not warrant extraordinary costs in this interlocutory context.

The appellant sought an extension of time to appeal a Divisional Court decision that dismissed his motion to set aside a prior ruling under Rule 2.1 of the Rules of Civil Procedure.

The original application for judicial review sought a mandamus order against the Chief Medical Officer of Health of Ontario regarding pediatric COVID-19 vaccinations, which was quashed for lack of arguable claim and standing.

The Court of Appeal, applying the four-factor test for extending time, found a lengthy delay without cogent explanation and, critically, that the proposed appeal lacked merit.

The court affirmed that a Rule 2.1 dismissal is appropriate for frivolous and vexatious motions, and that new evidence irrelevant to the fundamental deficiencies of the original application would not alter the outcome.

The motion for an extension of time was denied, and the appeal dismissed.

The Plaintiffs, investors in a cancelled wind turbine project, brought a motion for further production and discovery against the Defendant, His Majesty the King in Right of Ontario.

The Plaintiffs alleged that the government acted arbitrarily and in bad faith by directing the Ministry of Environment (MOE) to refuse a Renewable Energy Approval (REA) for their project for political purposes.

The court noted the extensive discovery already undertaken, including voluminous document production and examinations.

Despite the Plaintiffs' suspicions of political interference, the court found no documentary or testimonial evidence to support these claims.

The motion was dismissed, with costs in the cause, as the court determined that the discovery process had yielded all available information.

The appellant, through her litigation guardian, appealed a Divisional Court decision that reversed a certification order for a proposed class action against the Government of Ontario.

The class action alleged negligence in the administration of services for adults with developmental disabilities and a breach of section 7 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that the Divisional Court erred in recharacterizing the negligence claim as impugning core policy decisions and in striking the section 7 Charter claim.

The Court held that the negligence claim concerned operational failures within existing resources, and the section 7 claim alleged psychological harm from the arbitrary administration of waitlists for approved services, which was not foreclosed by existing jurisprudence.

The appeal was allowed, restoring the motion judge's certification order.

The Superior Court of Justice, on remittal from the Divisional Court, reconsidered the certification of an operational negligence class action claim against the provincial government in light of the newly enacted Crown Liability and Proceedings Act (CLPA) and a constitutional challenge under s. 96 of the Constitution Act, 1867.

The court found it was not plain and obvious that the operational negligence claim was statute-barred by the CLPA, particularly due to the "decision" requirement in s. 11(4) of the CLPA and the plaintiff's pleadings.

Furthermore, the court determined that the s. 96 constitutional challenge to the CLPA was not plainly and obviously doomed to fail, emphasizing the importance of access to courts and the Supreme Court's caution against restoring complete governmental immunity by broadly defining "policy matters." The court concluded that the meaning and constitutionality of the CLPA should be decided on a complete record at trial or summary judgment, not on a pleadings motion.

The original certification of the operational negligence claim remained intact, and a new common issue regarding the CLPA's effect was added by consent.

A sole practitioner lawyer provided legal services to the Office of the Children's Lawyer (OCL) pursuant to a series of retainer agreements over 13 years.

When the OCL did not renew her retainer, the lawyer claimed she was a dependent contractor entitled to notice of termination.

The motion judge found her to be a dependent contractor, but the Court of Appeal reversed, holding that she was an independent contractor.

The court found that while the OCL work represented an average of 39.9% of her billings, this did not constitute the "near-complete exclusivity" required to establish dependent contractor status.

The court emphasized that exclusivity is the hallmark of dependent contractor relationships and that 39.9% of income cannot reasonably be characterized as near-exclusive.

This motion concerned the certification of a proposed class action against the provincial government regarding the negligent operation and administration of social assistance programs for developmentally disabled adults.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of section 7 of the Canadian Charter of Rights and Freedoms, primarily due to indeterminate waitlists and flawed prioritization for approved services.

The court certified the class action, allowing the negligence and Charter claims to proceed, but struck the breach of fiduciary duty claim.

Common issues related to duty of care, Charter rights, and the availability of punitive damages were certified, while aggregate damages and the amount of punitive damages were not.

An applicant in child protection proceedings brought an application for court-appointed legal counsel, arguing she had exhausted legal aid appeals, could not afford private counsel, and found the issues too complex.

The Attorney General opposed the application.

The court dismissed the application, finding that while legal representation would be beneficial, the applicant was intelligent and articulate with sufficient capacity to represent herself.

The applicant had rejected the Attorney General's offer of funded counsel on a repayment basis, and the court found her financial circumstances would have permitted such an arrangement.

The court also noted that finding counsel willing to take the case would likely cause delays that were unnecessary given the applicant's demonstrated competence.

The accused brought a Rowbotham application seeking state-funded counsel after being refused Legal Aid in relation to a Gardiner hearing on the quantum of fraud admitted on a guilty plea.

The court considered the requirements that Legal Aid be refused, that the accused be indigent, and that counsel be essential to a fair trial.

The court found the accused had significant accounting experience, understood the documentary evidence, and had effectively represented himself at the preliminary inquiry.

It also found he had previously retained counsel and had access to funds from family, undermining the claim of indigence.

The court concluded that the relatively short and straightforward Gardiner hearing did not require state-funded counsel to ensure trial fairness.

The moving party brought a motion under Rule 54.09 of the Rules of Civil Procedure to oppose confirmation of a report and certificate of assessment that awarded legal fees to a solicitor for representation before the Ontario Review Board.

The dispute centred on whether the assessment officer had jurisdiction to assess the solicitor’s accounts where the existence of a retainer and responsibility for payment—between Legal Aid Ontario and the Attorney General—were contested.

The court held that a bona fide dispute regarding the retainer deprived the assessment officer of jurisdiction under the Solicitors Act to proceed with the assessment.

As the retainer issue had not been resolved through civil litigation, the assessment process was improper.

The report and certificate of assessment were therefore set aside.

The moving party sought leave to appeal an order granting advance costs to plaintiffs in treaty land entitlement litigation involving the size of a reserve under Treaty 9.

The motion judge had found the plaintiffs met the Supreme Court of Canada test for advance costs and ordered the costs initially shared between the federal and provincial defendants, subject to later adjustment.

The court held there was no reason to doubt the correctness of the motion judge’s application of the three‑part test for advance costs or her discretionary decision to award them.

The allocation of costs between the governmental defendants was reasonable at this preliminary stage.

Leave to appeal was denied because the issues were fact‑driven and did not raise matters of public importance or legal development.

The accused applied for a Fisher (Peterman) order seeking increased public funding to retain specific out‑of‑town counsel at rates substantially higher than the Legal Aid tariff.

Both accused already held Legal Aid certificates with travel authorization for counsel.

The court held that the right to counsel of choice does not impose a positive obligation on the state to fund that counsel at enhanced rates.

The applicants had not exhausted available competent counsel in nearby jurisdictions and the circumstances did not meet the extraordinary threshold required for such relief.

The application was dismissed.