Vilko Joseph Zbogar

Five organizations brought motions for leave to intervene in an appeal concerning the constitutionality of provincial legislation that required the removal of bicycle lanes in Toronto.

The underlying judgment found the legislation violated section 7 of the Charter.

The motion judge granted leave to all five proposed interveners, but limited the scope of their interventions to specific issues such as the positive/negative rights dichotomy, the interpretation of recent section 7 jurisprudence, and the application of equality and child-interest principles to the gross disproportionality analysis.

The interveners were restricted to 10-page factums and brief oral submissions.

During a case conference, the plaintiffs sought to regularize the late delivery of their motion records for upcoming cross-motions.

The defendants opposed, citing the plaintiffs' continued disregard of court orders and the plaintiffs' counsel's recent administrative suspension.

As the parties could not agree on a procedural path, the case management judge granted leave for the parties to bring meta-motions regarding the late filing and admissibility of the evidence, and vacated the scheduled hearing date for the main cross-motions.

The plaintiffs brought a motion to compel the defendants to answer fifteen refusals from examinations for discovery and written interrogatories.

The underlying action involves an environmental investigation.

The court reviewed each refusal, upholding several on the basis of solicitor-client privilege, proportionality, and sufficient prior answers, while ordering the defendants to answer others, including clarifying transcript discrepancies and conducting specific email searches.

The motion was granted in part.

The defendants brought a motion to compel the plaintiffs to answer questions refused on discovery and for a declaration that the plaintiffs waived solicitor-client privilege over legal advice received from their former counsel.

The defendants argued privilege was waived through the plaintiffs' pleadings of duress, their discovery evidence, and by publicly filing documents in a separate small claims court action against the counsel.

The court held that the plaintiffs did not waive privilege in this action because they did not put the legal advice in issue or rely on it for their claims.

While privilege was waived over the publicly filed documents, those documents were deemed irrelevant to the current action.

The court also ruled on several other discovery refusals, upholding some and ordering answers or redactions for others.

The appellant appealed the dismissal of his personal claims by the motion judge in two actions against the Attorney General of Canada and individuals employed by Environment Canada.

The motion judge had ordered security for costs of $230,000 on a joint and several basis.

When the second instalment of $130,000 was not paid by the deadline, the motion judge dismissed the appellant's personal claims while granting the corporate plaintiffs an extension to post the security.

The Court of Appeal found this was a reversible error, holding that the motion judge failed to apply the same balancing exercise to the appellant as he did to the corporate plaintiffs, and that the factual inference that the appellant no longer wished to pursue his claim was not supported by the record.

The defendants moved to dismiss four actions due to the plaintiffs' failure to post security for costs and other alleged breaches of interlocutory orders.

The plaintiffs cross-moved to vary or rescind the security for costs order or, alternatively, for an extension of time.

The court dismissed Patrick Whitty's claims in two actions and granted the corporate plaintiffs an extension until October 31, 2018, to post the outstanding security.

Despite initial inclination that the defendants were more successful, the disclosure of a reasonable offer to settle by the plaintiffs altered the assessment.

The court found both sides engaged in "expensive overkill" by seeking excessive relief instead of agreeing to a reasonable mid-ground.

Consequently, the court ordered that each party bear their own costs for the motions.

The defendants moved to dismiss four proceedings due to the plaintiffs' failure to post $130,000 security for costs as required by a prior order.

The plaintiffs cross-moved to vary the security for costs order or, alternatively, seek an extension of time.

The court dismissed Patrick Whitty's personal actions, finding he had indicated a lack of interest in proceeding personally by declining to post further security.

For the corporate plaintiffs, the court denied the motion to vary the security for costs order, finding no significant change in circumstances or a gap between ordered security and likely costs.

However, recognizing the overall goal of fair dispute resolution, the court granted the corporate plaintiffs a final extension until October 31, 2018, to post the outstanding security, emphasizing that failure to comply would result in dismissal without further notice.

The plaintiffs sought leave to appeal an interlocutory order that dismissed their motion for additional documentary production from the Crown, upheld claims of solicitor-client privilege between a Crown prosecutor and Environment Canada investigators, and allowed the Crown to claw back inadvertently disclosed privileged documents.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decisions, which properly applied principles of proportionality and solicitor-client privilege.

The court also found that the proposed appeal did not involve matters of general importance, as the issues were specific to the parties.

The parties sought costs following a series of motions concerning document production and privilege.

The plaintiffs had been unsuccessful on all their motions, including an attempt to set aside prior orders based on unproven allegations of fraud against the Crown.

The Crown and another defendant, Sandra Antoniani, were successful in their respective motions.

The court awarded partial indemnity costs to Antoniani in the amount of $25,635.80.

The court awarded the Crown $25,000 in partial indemnity costs for its clawback motion and $45,000 in substantial indemnity costs for responding to the plaintiffs' motions, noting the plaintiffs' unproven allegations of fraud and unnecessary prolongation of the proceedings.

The plaintiffs sued the Crown and others for misfeasance in public office and defamation related to regulatory charges.

The plaintiffs moved for further document disclosure, arguing the Crown's production was deficient compared to documents released under the Access to Information Act.

The Crown moved to claw back privileged documents inadvertently disclosed under the Act.

The court dismissed the plaintiffs' motions, finding that the different criteria for civil discovery and access to information requests explained the discrepancy in document volume.

The court upheld the Crown's claims of solicitor-client privilege over communications between the prosecutor and regulatory investigators, and found that the inadvertent disclosure did not constitute a waiver of privilege.

The plaintiffs were ordered to return and destroy the privileged documents.

The applicant brought a motion to set aside a Registrar's order dismissing his Charter application for delay.

The application challenged the Toronto Police Service's practice of 'carding' or 'street checks'.

The court found that the applicant failed to provide a reasonable explanation for the delay, noting that counsel being too busy is not a sufficient excuse.

The court also found a lack of bona fide intention to meet the time limits and presumed prejudice to the respondents.

The motion was dismissed.

The plaintiffs brought a motion for a further extension of time to deliver their affidavits of documents and an expert report on damages in a $50 million action against the government.

The defendants did not oppose the extension but sought terms requiring the plaintiffs to post security for costs and pay costs thrown away due to the plaintiffs' failure to comply with previous scheduling orders.

The court granted the extension but ordered the plaintiffs to post $230,000 in security for costs and pay $20,000 in costs thrown away, finding that the plaintiffs had failed to commit the necessary resources to advance their claims efficiently and had breached court orders.

The plaintiffs sought leave to appeal a motions judge's order that made no award of costs for several motions.

The plaintiffs argued there was good reason to doubt the correctness of the decision and that it involved issues of general importance.

The Divisional Court dismissed the motion for leave to appeal, finding that costs are a quintessential exercise of discretion and the motions judge made no error in principle.

The court also noted that the plaintiffs were seeking an indulgence and that the case did not raise any matters of general importance.

The defendant, a federal standing Crown agent, moved to strike the plaintiffs' statement of claim under Rule 21.01(1)(b) on the basis of prosecutorial immunity and failure to plead sufficient facts for malicious prosecution.

The plaintiffs alleged misfeasance in public office, abuse of process, conspiracy, and malicious prosecution arising from the defendant's involvement in an environmental investigation and subsequent prosecution.

The court dismissed the motion, finding it was not plain and obvious that the claims were barred by prosecutorial immunity, as the jurisprudence on whether other torts can be brought against prosecutors remains unsettled.

The court also found the plaintiffs pleaded sufficient material facts to support the elements of malicious prosecution.

The plaintiffs, engaged in the hazardous waste disposal business, were investigated by Environment Canada, resulting in the execution of two search warrants and the laying of charges.

The plaintiffs commenced multiple Small Claims Court actions against the Crown defendants and various officials, alleging improper conduct during the investigations and searches.

These actions were transferred to the Superior Court and consolidated.

The plaintiffs brought a motion for leave to amend their statement of claim to divide the action into four separate claims and to add new causes of action, including negligence, Charter breaches, misfeasance in public office, and malicious prosecution, as well as new parties.

The defendants opposed the amendments, arguing they were statute-barred by the Limitations Act.

The court granted the plaintiffs' motion to amend, finding that the original pleadings contained sufficient material facts to support the alternative theories of liability, while granting the defendants leave to raise limitation period defences in respect of certain claims.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they discriminated against the respondents, two Black men, by asking them for identification in a lawyers' lounge.

The Divisional Court quashed the Tribunal's decision, finding no evidence of differential treatment or a causal nexus to race.

The Court held that the Tribunal improperly reversed the burden of proof by requiring the applicants to provide a non-discriminatory explanation for routine identification checks without the respondents first establishing a prima facie case of discrimination.

This is a costs endorsement following an appeal regarding a receivership of public sector organizations operating affordable housing.

The appellants sought costs for a re-argued motion and the appeal.

The Court of Appeal rejected the 'hours times rates' approach, noting that public sector organizations should not be expected to pay full indemnity hourly rates and the hours docketed were excessive.

The court fixed the costs of the re-argued motion at $15,000 and the costs of the appeal at $30,000.

The appellant corporations were placed into receivership.

The boards of directors retained counsel to oppose the receivership and represent the corporations' interests.

The motion judge held that the boards did not have the right to retain counsel without court approval but awarded partial costs on an equitable basis.

On appeal, the Court of Appeal held that the boards retained residual authority to retain counsel without prior approval of the receiver or the court to challenge the receivership or the receiver's actions.

The Court ordered that the reasonable legal fees for the receivership litigation be paid out of the corporations' assets.

The moving parties, two not-for-profit corporations in receivership, sought an interim order allowing their boards of directors to retain counsel for an appeal and directing that the legal fees be paid from the corporations' assets.

The motion judge had previously ruled the boards could not retain counsel without leave of the court or the receiver's approval.

The Court of Appeal granted the motion, holding that the boards' right to pursue the appeal would be hollow without counsel, and ordered that reasonable legal fees be paid from the corporations' assets.

The appellants appealed a decision upholding a municipal by-law that restricted the height of their natural garden planted on city property.

The application judge found that any infringement of the appellants' freedom of conscience, religion, or expression was justified under s. 1 of the Charter as a reasonable limit for public safety and visibility on roadways.

The Court of Appeal agreed with the application judge's analysis, concluding that the by-law's limitation on vegetation was tied to safety hazards and was not overly vague or unreasonable.

The appeal was dismissed with costs.