Vanessa May Marie Glasser

Following the release of its decision allowing the Crown's appeal and setting aside a class action certification order, the Divisional Court entertained post-decision submissions from the respondent based on two new Court of Appeal decisions regarding state liability in negligence.

The court concluded that the new decisions applied settled law and did not alter its previous reasoning.

The court amended its previous disposition to clarify that while the appeal is allowed and the certification order is set aside, the underlying action is not dismissed, leaving that issue for the parties to address below.

Following a successful application for judicial review where the impugned regulation was declared ultra vires but Charter claims were dismissed, the applicants sought costs of $153,499.07 on a partial indemnity basis.

The respondents argued for no costs or a maximum of $35,000.

The Divisional Court found the applicants' requested costs excessive given it was a one-day hearing and a large portion related to unsuccessful Charter claims.

The court fixed costs at $50,000 all inclusive.

The plaintiff, acting as litigation guardian for his developmentally disabled daughter, brought a proposed class action against Ontario alleging negligence and section 7 Charter violations regarding the administration of waitlists for adult developmental services.

The motion judge certified the negligence and Charter claims.

Ontario appealed to the Divisional Court.

The Divisional Court unanimously allowed the appeal regarding the Charter claims, finding no positive obligation on the state to provide social assistance.

A majority of the court also allowed the appeal regarding the negligence claims, holding that the administration of the benefits program is a core policy decision protected by Crown immunity.

The appeal was allowed and the action dismissed.

The applicants sought judicial review of an Ontario regulation that discontinued the reimbursement of out-of-country medical expenses under the provincial health insurance plan.

The Divisional Court found that the regulation clearly violated the portability criterion of the Canada Health Act, which would disqualify Ontario from receiving a full federal cash contribution.

Because the Health Insurance Act explicitly prohibits the Lieutenant Governor in Council from making regulations that would cause such disqualification, the impugned regulation was declared ultra vires.

The applicants' Charter challenges under sections 7 and 15 were dismissed.

A case management endorsement setting out the schedule and procedural directions for an upcoming judicial review application to be heard by video conference.

The court provided instructions on the use of a drop box for document filing, formatting requirements for electronic materials, and the timeline for submissions.

A case management conference was held to set procedural directions for an upcoming virtual appeal hearing before the Divisional Court.

The court issued directions regarding the use of Zoom, attire, and the electronic filing of materials, including factums, compendiums, and authorities via a password-protected drop box.

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.

The plaintiffs, promoters of a wind farm project, brought a motion to compel answers to questions and production of documents refused by the Crown during examinations for discovery.

The plaintiffs alleged that the Crown's refusal to issue a Renewable Energy Approval was due to bad faith political interference during the 2014 provincial election.

The Crown argued the questions were res judicata and the documents were not in its control or were protected by Cabinet privilege.

The Master granted the motion, finding the issues were not res judicata, the documents were relevant and within the Crown's control, and the public interest in disclosure outweighed any claim of Cabinet privilege.

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.

The applicants sought judicial review of the Ministry's decision to provide disability funding for the applicant's daughter through a transfer payment agency rather than directly to a family-run microboard.

The Divisional Court dismissed the application, finding that the Ministry's decision was reasonable, did not fetter its discretion, and did not breach procedural fairness.

The court held that the Ministry has broad statutory discretion to determine how to allocate and administer funding, and its reliance on transfer payment agencies for oversight and accountability was a reasonable exercise of that discretion.

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.

The plaintiff First Nation brought an action against Canada and Ontario for failing to set aside a reserve for them under Treaty No. 9 in 1906.

The parties agreed that a reserve should have been set aside.

The threshold issue at trial was determining the 'crystallization date'—the point in time at which the band's population should be assessed to calculate the size of the reserve.

The plaintiffs argued the population should be determined as of the date the reserve is actually set aside or the date of the court's declaration.

The Crown argued the population should be determined as of the date the treaty was made.

The court held that the common intention of the parties, based on the text of the treaty and its historical context, was that reserves were to be set aside and sized according to the population at the time the treaty was made.

The representative plaintiff brought a class action on behalf of private issuers who operate ServiceOntario outlets, alleging that Ontario breached its duty of good faith and acted unreasonably in exercising its unilateral discretion to set their compensation.

The plaintiff argued that the compensation was inadequate and failed to keep pace with expenses.

The court dismissed the action, finding no evidence of dishonesty or bad faith by Ontario.

The court held that the duty of good faith applies to the performance of the contract, not to ensuring a commercially reasonable outcome, and that Ontario's compensation decisions were not commercially unreasonable in any event.

The alternative claim for unjust enrichment was also dismissed as the contract constituted a juristic reason for the enrichment.

In this certified class action, the defendant moved for summary judgment dismissing claims by private issuers of motor vehicle licences and registrations alleging breach of contract and unjust enrichment arising from compensation fixed by the province.

The plaintiff informally sought summary judgment on issues including commercially reasonable compensation, good faith, and the anti-fettering doctrine.

Applying the post-Hryniak summary judgment framework, the court held that the action raised numerous genuine, novel, and profound issues at the intersection of private and public law that should be determined at trial.

The court emphasized the need for a full evidentiary record, party vindication, and appellate review.

Both the motion and the informal cross-request for summary judgment were dismissed, with costs in the cause.

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 defendant Ministry appealed a Master's decision at a status hearing allowing the plaintiff's action to proceed despite a five-year delay.

The Master found the delay was caused by the plaintiff's former counsel failing to act on instructions, and that the defendant would suffer no non-compensable prejudice.

The Superior Court of Justice dismissed the appeal, holding that the Master made no errors of law or palpable and overriding errors of fact in applying the Khan test for delay.

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 Minister of Municipal Affairs and Housing brought a motion to quash an application for judicial review commenced by a landowner regarding a Minister's zoning order and a declaration of provincial interest.

The Minister argued the application should be dismissed for delay or prematurity, or alternatively, that portions of the supporting affidavits should be struck.

The Divisional Court dismissed the motion, finding no unexplained delay, concluding it was not a clear case of prematurity to be decided by a single judge, and leaving the evidentiary issues for the panel hearing the merits.

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.