Appeals and Judicial Review

On September 25, 2019 Richard Stephenson argued the appeal of R. v. Nugent in the Ontario Court of Appeal. The case is a Crown appeal of a stay issued by the Ontario Court of Justice (upheld on appeal in the Ontario Superior Court) because of a violation of s. 11(b) of the Charter of Rights and Freedoms of a prosecution of three employees under the Occupational Health and Safety Act.  The case is a leading authority of the decision of the Supreme Court of Canada in R. v. Jordan in the context of Occupational Health and Safety prosecutions in Ontario.

Chris Paliare and Tina Lie successfully represented Environs Landscape Contracting Ltd. on an appeal of a partial summary judgment decision finding their client liable for breach of contract and negligent misrepresentation. The decision was overturned by the Court of Appeal for Ontario and the action was dismissed in its entirety. (Environs Wholesale Nursery Ltd. v. Environs Landscape Contraction Ltd., 2019 ONCA 547 (CanLII)
https://www.canlii.org/en/on/onca/doc/2019/2019onca547/2019onca547.html)

Jodi Martin and Elizabeth Rathbone acted for the Ontario Association of Child Protection Lawyers in Hunt v. Worrod, 2019 ONCA 540. The issue in the appeal was the award of significant costs against Legal Aid Ontario for providing funding in an estates litigation matter. The Association intervened to provide the Court of Appeal with submissions concerning the implication of the costs award for access to justice in child protection matters, and the impact on solicitor client privilege for litigants who rely on legal aid certificates. The appeal was allowed.

Andrew Lokan and Lorne Waldman of Waldman and Associates successfully represented Kazakh businessman Rustem Tursunbayev in securing the Federal Court’s largest-ever costs award in an immigration matter, after the Federal Court found that the Attorney General had unreasonably opposed Mr. Tursunbayev’s request for a stay of deportation proceedings against him, based on his claim that Canadian officials had committed an abuse of process in seeking his deportation to a country that uses torture.

More details can be found here: https://bit.ly/2ZW6dAy

Nini Jones, Jodi Martin, and Glynnis Hawe successfully represented the Waterloo Regional Police Association in an appeal brought by the plaintiffs, current and former uniform women members, in a proposed class action proceeding.  They were entirely successful once again in arguing that the civil courts have no jurisdiction over claims of unfair representation by the Association, which must be heard by specialized labour arbitrators appointed under the Police Services Act.

Rivers v Waterloo Regional Police Services Board, 2019 ONCA 267:

https://www.canlii.org/en/on/onca/doc/2019/2019onca267/2019onca267.html?autocompleteStr=rivers%20v%20waterloo&autocompletePos=7

Spence v. University of Toronto, 2019 ONSC 1085 (CanLII), <http://canlii.ca/t/hxmjw>,

Rob Centa and Emily Home successfully represented the University of Toronto in an application for judicial review brought by a graduate of the University. The Divisional Court dismissed the application and held that there was no violation of procedural fairness and the penalty of the revocation of his doctoral degree for plagiarism was reasonable.

Christopher Spence v. University of Toronto 2019 ONSC 1085 (CanLII):

Rob Centa and Emily Home successfully represented the University of Toronto in an application for judicial review of a complex academic discipline decision. The court held that there was no violation of procedural fairness. See: http://canlii.ca/t/hxmjw

Chris Paliare and Richard Stephenson successfully represented our client the Building Industry and Land Development Association (BILD) in responding to an appeal in the Divisional Court brought by the City of Toronto.  The City sought to overturn a decision of the OMB (now LPAT) regarding the City’s new Development Permit System.  The case raised important and novel issues with respect to both municipal planning and administrative law.  See:

https://www.canlii.org/en/on/onscdc/doc/2019/2019onsc146/2019onsc146.html

Zeng v. The Governing Council of the University of Toronto – Robert Centa – 2018 CarswellOnt 14162 (Div. Ct.) – Public Law/Judicial Review – Fact member of committee found in favour of applicant in past did not constitute reasonable apprehension of bias when viewed from perspective of reasonable person cognizant of all relevant facts, and nothing in conduct of hearing met test for reasonable apprehension of bias — Applicant did not ask member to recuse herself and was barred from raising issue of reasonable apprehension of bias — Applicant had not shown denial of procedural fairness, as he was represented at hearing and received legal advice throughout — Committee was alive to existence of applicant’s disability issues and gave consideration to whether they should impact result — There was no error of fact or law that rendered committee’s decision unreasonable.

Ombudsman of Ontario v. Hamilton (City) – Robert Centa and Denise Cooney 2018 CarswellOnt 8627 (ONCA)  – Public Law/Judicial review Respondent city was subject of appellant provincial ombudsman’s report — Ombudsman challenged city boards’ private deliberations and issuing of reasons in private, after holding public hearings — Ombudsman issued complaint, and prepared report — City applied for judicial review of report, seeking declaratory relief — Application was granted in part — Reviewing court found that city boards were not local boards under law, and were outside ombudsman’s jurisdiction — Reviewing court did not grant broader declaratory relief, as to ombudsman’s jurisdiction — Ombudsman claimed reviewing court was in error, on issue of what was local board — City claimed that even if boards were considered local, deliberations were exempt from being made public — Ombudsman appealed from reviewing court’s judgment — City cross-appealed — Appeal dismissed; no judgment made as to cross-appeal — City boards did not provide essential services, as to day-to-day operation of city — As investigative and adjudicative bodies, city boards’ function was different than those identified as local boards — Ombudsman did not have jurisdiction to investigate alleged non-compliance.

Rob Centa and Michael Fenrick represented a major federal political party on an application for judicial review regarding whether or not the party’s decisions rejecting the applicant’s candidacy for the leadership of the party  are properly the subject of judicial review under the Judicial Review Procedure Act.  Graff v New Democratic Party, 2017 ONSC 3578 (CanLII),
http://canlii.ca/t/h46sv

On July 4, 2017, the Ontario Court of Appeal released its decision in Angus v. Municipality of Port Hope, 2017 ONCA 566, leave to appeal to SCC dismissed, which reviews key principles in determining whether obligations are pursuant to contract or trust.  Chris Paliare, Richard Stephenson, and Lindsay Scott successfully represented the Municipality of Port Hope as appellant.

On April 18, 2012, the Supreme Court of Canada released Club Resorts Ltd. v. Van Breda, 2012 SCC 17 which established a new test for determining when an Ontario court is entitled to assume jurisdiction over a foreign defendant for a tort committed outside of Ontario. Chris Paliare, Rob Centa, Tina Lie, and Alysha Shore successfully represented Morgan Van Breda, an Ontario resident injured while staying at a resort in Cuba.

Linda Rothstein, Andrew Lokan and Michael Fenrick represented the Canadian Civil Liberties Association in R. v. Bedford, 2012 ONCA 186 in which the Ontario Court of Appeal struck down substantially all of the Criminal Code provisions regulating prostitution in Canada.

Andrew Lokan, Massimo Starnino and Michael Fenrick represented the Foundation for the Advancement of Investor Rights in the Reference re Securities Act, 2011 SCC 66 respecting the constitutionality of proposed federal securities legislation.

Nini Jones, Jodi Martin and Michael Fenrick represented Gloria Saccon, a ratepayer in Ward 9 of the City of Toronto, in Cusimano v. Toronto (City), 2011 ONSC 7271 a successful appeal that overturned a decision to invalidate the election of Maria Augimeri.

In Mann v. Ryerson University, 2011 ONSC 7378 (Div. Ct.), Robert Centa and Danny Kastner successfully represented the respondent, Ryerson University, on a judicial review of a disciplinary decision. The Divisional Court dismissed the application for judicial review for delay, and as without merit.

Robert Centa represented the plaintiff in Searle v. McCabe, Filken & Garvie LLP Barristers & Solicitors 2011 Carswell Ont 11696, 2011 ONSC 6344 (Div. Ct.). The Divisional Court refused to grant the defendants leave to appeal an order denying them a stay of the plaintiff’s solicitor’s negligence action. The plaintiff’s action against the defendant law firm was allowed to proceed.

Chris Paliare and Richard Stephenson acted successfully for Tom Mason in the Ontario Court of Appeal in Mason v. Chem-Trend, 2011 ONCA 344.  The case is now a leading Canadian authority on the (non) enforceability of restrictive covenants in employment agreements.

Ian Roland and Michael Fenrick appeared at the Supreme Court of Canada in the appeal of Fraser v. Ontario (Attorney-General), 2011 SCC 20 on behalf of the interveners, the Canadian Police Association (CPA). The CPA supported the Appellant’s position that s. 2(d) of the Charter protects a process of collective bargaining that includes a dispute resolution mechanism.

Michael Fenrick was co-counsel to Professor Kent Roach of the University of Toronto, Faculty of Law on behalf of the British Columbia Civil Liberties Association in the first three appeals to be heard by the Supreme Court of Canada respecting the constitutionality of the anti-terrorism offences in the Criminal Code.

The Ontario Court of Appeal ruled in Springer v. Aird & Berlis LLP 2010 ONCA 287, 100 O.R. (3d) 585, 81 C.C.E.L. (3d) 235, 68 B.L.R. (4th) 61 (C.A.) that a law firm did not owe a former partner a fiduciary duty to inform him of where he fit in a new firm compensation system, or that his remuneration would be reduced under this new system. Linda Rothstein and Robert Centa successfully represented the respondent law firm, Aird & Berlis.

Linda Rothstein and Robert Centa successfully defended a prominent Toronto law firm from a claim made by a former partner of the firm in Springer v Aird & Berlis LLP, 2009 CanLII 15661 (Ont. S.C.). The Court of Appeal for Ontario recently upheld the decision of the trial judge to dismiss the claim in its entirety.

R v. Nasogaluak, 2010 SCC 6 where Andrew Lokan and Danny Kastner represented the Canadian Civil Liberties Association at the Supreme Court of Canada and successfully argued that sentence reductions, even below mandatory minimum sentences, ought to be available as a remedy for unconstitutional state conduct in the criminal justice process.

At the Supreme Court of Canada, Richard Stephenson, Danny Kastner and Jodi Martin successfully represented the Public Interest Advocacy Centre (PIAC), acting in support of the Consumers Association of Canada and the National Anti-Poverty Organization in Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40. The court agreed with PIAC’s position that telecommunications service providers had overcharged telephone customers in the amount of approximately $300 million. The court ordered the amount rebated to customers.

Ian Roland, Jean-Claude Killey and Michael Fenrick acted on behalf of the intervener, the Canadian Police Association, in the Mounted Police Association of Ontario’s successful Charter challenge of the statutory exclusion of RCMP officers from collective bargaining legislation in Mounted Police Association of Ontario v. Canada (Attorney General), 2009 CanLII 15149 (Ont. S.C.). The Attorney-General of Canada’s appeal was heard by the Ontario Court of Appeal.

In Boehringer Ingelheim (Canada) Ltd. v. Canadian Agency for Drugs and Technologies In Health (2008), 243 OAC 200 (Div. Ct.), Chris Paliare and Robert Centa acted on behalf of the intervener, Bayer. The Divisional Court dismissed the application for judicial review brought by another drug manufacturer, finding that the drug approvals process was transparent, even-handed, fair and reasonable.

Chris Paliare and Robert Centa represented the Honourable Mr. Justice Paul Cosgrove before an Inquiry Committee of the Canadian Judicial Council. In Cosgrove v. Canada (Attorney General), 2008 CarswellNat 2740; 2008 FC 941, they represented Justice Cosgrove in an application for judicial review of a ruling of the Inquiry Committee. 

In R v. Ferguson, 2008 SCC 6, Andrew Lokan and Nini Jones represented the Canadian Civil Liberties Association at the Supreme Court of Canada and argued that mandatory minimum sentences for unlawful act manslaughter violate s.12 of the Charter, and that constitutional exemptions may be an appropriate remedy where the mandatory minimum would result in a grossly disproportionate sentence.

In 2011, Andrew Lokan and Jodi Martin acted for the Canadian Civil Liberties Association as interveners before the Federal Court in a constitutional challenge to the hate speech provision (section 13) of the Canadian Human Rights Act. The decision in Lemire v. Canadian Human Rights Commission is pending.

In 2011, Andrew Lokan and Jodi Martin appeared at the Supreme Court of Canada, on behalf of the Canadian Civil Liberties Association, in Saskatchewan Human Rights Commission v. William Whatcott. The CCLA supported the respondent’s position that section 14 of the Saskatchewan Human Rights Act violates section 2(b) of the Charter. Andrew Lokan also appeared twice at the Saskatchewan Court of Appeal in Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6 and Whatcott v. Saskatchewan (Human Rights Tribunal), 2010 SKCA 26.

Tomaszewska v. College of Nurses of Ontario, 2007 CarswellOnt 2760, [2007] O.J. No. 1731 (Div. Ct.)

Linda Rothstein and Rob Centa successfully represented the College of Nurses of Ontario (“ONA”) in Tomaszewska v. College of Nurses of Ontario [2007] O.J. No. 1731, an appeal to the from orders of ONA’s Discipline Committee.   The Committee’s decision to revoke the member’s license because of her exploitation of an extremely vulnerable psychiatric patient was upheld by the Divisional Court.

Rob Centa was involved in the successful challenge to the constitutionality of the federal security certificate regime, on behalf of our clients the International Human Rights Clinic at the Faculty of Law, University of Toronto and Human Rights Watch, who intervened before the Supreme Court of Canada in the Charkaoui, Harkat, and Almrei, 2007 SCC 9 cases.

Charkaoui, Re 2007 SCC 9, 44 C.R. (6th) 1, 276 D.L.R. (4th) 594, 54 Admin. L.R. (4th) 1 On February 23, 2007, the Supreme Court of Canada released Charkaoui v. Canada, 2007 SCC 9, a landmark decision on the constitutionality of procedures for determining the reasonableness of security certificates and for reviewing detention under a certificate.  The Court held that the security certificate process, which prohibited the named individual from examining evidence used to issue the certificate, violated the rights to liberty and habeas corpus under sections 7, 9 and 10(c) of the Charter. Rob Centa, along with Professor Sujit Choudhry represented the University of Toronto, Faculty of Law – International Human Rights Clinic and Human Rights Watch, who intervened on this case.

Leader Media v. Sentinel Hill, in which Chris Paliare and Andrew Lewis successfully represented the plaintiff at trial (2006 CanLII 35630 (Ont. S.C.), and at the Court of Appeal (2008 ONCA 463), in a contractual dispute involving tax shelter structures in the film industry.

Ken Rosenberg and Richard Stephenson successfully represented the Ontario Energy Board at the Court of Appeal in Enbridge Gas Distribution Inc. v. Ontario (Energy Board), 2005 CanLII 250 (O.C.A.).

Linda R. Rothstein and Robert A. Centa acted as Amicus Curia at the Court of Appeal in Canada Trustco Mortgage Co. v. Park  (2004), 72 O.R. (3d) 480 (C.A.). At issue was a conflict between the Tenant Protection Act and the Mortgages Act. The court held that a Landlord could not terminate a fixed-term tenancy other than at the end of the fixed term, therefore finding the provision of the Tenant Protection Act paramount over the Mortgages Act.

In Jakobek v. Toronto Computer Leasing Inquiry (Commissioner) (2004), 23 Admin L.R. (4th) 272, 188 O.A.C. 259,  49 M.P.L.R. (3d) 262, the Divisional Court upheld the inquiry Commissioner’s jurisdiction to investigate allegations of criminal misconduct. The judicial inquiry, requested by the City of Toronto, was directed to matters within provincial jurisdictions and therefore not unconstitutional. Linda Rothstein and Robert Centra acted for the intervenor, the City of Toronto.

In Jehovah’s Witnesses v. Village of Lafontaine, 2004 SCC 48, Andrew Lokan and Megan Shortreed represented the Canadian Civil Liberties Association as an intervener at the Supreme Court of Canada in respect of a challenge to the decision of a municipality to deny permission to a religious group to build a church.

In PCL Constructors Eastern Inc. v. U.A., Local 221, [2003] O.L.R.B. Rep. 171, 90 C.L.R.B.R. (2d) 179 (Ont. Div. Ct.) the applicants, PCL Eastern and PCL Industrial Constructors, had sought judicial review to overturn the Labour Relations Board’s finding that they be treated as one employer for the purposes of the Labour Relations Act. The Divisional Court upheld the Board’s decision. Chris Paliare and Robert Centra intervened on behalf of the Labour Relations Board.

Mussani v. College of Physicians & Surgeons (Ontario) (2004), 248 D.L.R. (4th) 632, 74 O.R. (3d) 1, 22 Admin L. R. (4th) 53, (Ont. C.A.)

In Mussani v. College of Physicians & Surgeons of Ontario (2004), 248 DLR (4^th) 632, The Ontario Court of Appeal upheld the requirement under the Health Professions Procedural Code that, where a Discipline Committee of a regulated health profession’s governing college finds that a health professional has engaged in certain specified acts of sexual conduct with a patient, the mandatory penalty is to revoke the professional’s license for a minimum of five years. The appellant in this case argued that the mandatory penalty violated his rights under sections 7 and 12 of the Charter.  Linda Rothstein and Rob Centa represented the College of Nurses of Ontario who intervened on this case.

In R. v. Malmo-Levine, 2003 SCC 74, Andrew Lokan and Andrew Lewis represented the Canadian Civil Liberties Association as an intervener at the Supreme Court of Canada in respect of a challenge to the criminal prohibition of the possession of cannabis.

Linda Rothstein, John Monger and Robert A. Centa, represented the University of Toronto in  Shank v. Daniels (2002), 57 O.R. (3d) 559, 155 O.A.C. 181, 40 Admin. L.R. (3d) 60 (Div. Ct.). In his judicial review proceeding before the Divisional Court a first year law student sought review of the dean of the law faculty’s decision to impose academic sanction on her for misrepresenting her grades to potential employers. Under the Code of Behaviour on Academic Matters the dean could only sanction students who admitted to the academic offence, otherwise the matter should be referred to the Provost for possible referral to a tribunal established under the Code.

Ian Roland and Robert Centa represented the Police Association of Ontario and the Ontario Provincial Police Association as intervenors in Canadian Civil Liberties Assn. v. Ontario Civilian Commission on Police Services (2002), 220 D.L.R. (4th) 86, 61 O.R. (3d) 649, 97 C.R.R. (2d) 271, 165 O.A.C. 79 (C.A.). The court held that the police chief should have investigated police conduct because, under the act, clear and convincing evidence is not required. Therefore, there should have been a review looking into the complaints of police misconduct raised by arrested female protesters.

Gordon Capern and Megan Shortreed argued and won the leading case on who is entitled to participate in an application for leave to commence a derivative action under the Ontario Business Corporations Act at the Court of Appeals for Ontario: Lederer v. 372116 Ontario Limited 2001 CanLII 24159 (O.C.A.).

In Dunmore v. Ontario, 2001 SCC 94, Chris Paliare successfully argued at the Supreme Court of Canada that the total exclusion of agricultural workers from Ontario’s collective bargaining regime contravened the Charter.