Ontario Court Research Articles

Between Her Majesty the Queen, and Joseph LeClair[2014] O.J. No. 2700, 2014 ON.C. LEXIS 2994 (Ontario Court of Justice, March 19, 2014)

Between Her Majesty the Queen, and Joseph LeClair<i>[2014] O.J. No. 2700, 2014 ON.C. LEXIS 2994 (Ontario Court of Justice, March 19, 2014)</i>

Glosa do wyroku Sądu Sprawiedliwości Ontario w sprawie R. v. Wagner z dnia 12.06.2014 (R. v. Wagner, 2015 ONCJ 66)

The paper deals with the judgment of the Ontario Court of Justice of 12 June 2014 in the case R. v. Wagner 2015 ONCJ 66. The reviewed judgment refers to legal frameworks of anti-abortion protests in the Canadian legal order. The Court found pro-life activist Mary Wagner guilty of breach of probation orders – which prohibited her from being on the premises of any abortion provider in Ontario – and of mischief interfering with private property. She gained entry to abortion clinic in Toronto and sought to intercede with various clinic patients by offering them roses and pro-life brochures in an effort to have them reconsider their interest in having an abortion. The Court held that neither law of self-defence (exactly defence of others) nor the law of necessity could insulate Wagner’s conduct from criminal liability. The Court also rejected the contention that a foetus is a&nbsp;“human being” under the law. It said that ascribing personhood to a foetus in law is a&nbsp;fundamentally normative task which falls outside the concerns of scientific classification. This strong normativism position led the Court to the conclusion that Wagner’s protest in the clinic was not an attempt to protect the “everyone’s” right to life under s. 7 of the Canadian Charter Of Rights And Freedoms. Finally the Court assumed that neither Principle of the “Rule of Law” nor principle of the “Supremacy of God” – both expressed in the preamble to the Charter – convalidated the defendant’s acts. In the author’s view the reviewed judgment is consistent with the letter of the law in the sense of legal positivism. It is debatable whether the given judgment is righteousness, depending on which theory of justice is chosen to rely on. However the court’s opinion belies the requirements of equity. Imprisonment for peaceful pro-life protest is serious infringement of core values of liberal and democratic state.

Legal requirements for human-health based appeals of wind energy projects in ontario.

In 2009, the government of the province of Ontario, Canada passed new legislation to promote the development of renewable energy facilities, including wind energy facilities in the province. Throughout the legislative process, concerns were raised with respect to the effect of wind energy facilities on human health. Ultimately, the government established setbacks and sound level limits for wind energy facilities and provided Ontario residents with the right to appeal the approval of a wind energy facility on the ground that engaging in the facility in accordance with its approval will cause serious harm to human health. The first approval of a wind facility under the new legislation was issued in 2010 and since then, Ontario’s Environmental Review Tribunal as well as Ontario’s courts has been considering evidence proffered by appellants seeking revocation of approvals on the basis of serious harm to human health. To date, the evidence has been insufficient to support the revocation of a wind facility approval. This article reviews the legal basis for the dismissal of human-health based appeals.

Entrapment: Clearly Misunderstood in the Dial-a-Dope Context

This article deals with a recent trend in entrapment jurisprudence where Ontario Courts have strayed some distance from the underlying principles envisioned by our Supreme Court in its seminal decision in R. v. Mack. The paper suggests that courts reconsider the approach to analyzing entrapment in the context of dial-a-dope.

Canadian Product Liability Law – 2013 in Review

CANADIAN product liability law continued to evolve in 2013. Ontario courts further clarified the law of pure economic loss; set the bar higher for plaintiffs when pleading product liability; and set the bar high for defendants to obtain sanctions for spoliation. In addition, Canada's Consumer Product Safety Program released more bulletins providing industry guidance on the manner in which Canada's Consumer Product Safety Act will be applied. This article reviews notable common law developments (excluding the province of Quebec, which is subject to its own Civil Code) that may be useful in defending product liability claims, including class actions. This article also summarizes recent industry guidance released by Health Canada's Consumer Product Safety Program to assist in understanding the application of the Consumer Product Safety Act. (1) 1. Recent Jurisprudence On Product Liability Law A. Pure Economic Loss Canadian courts have traditionally precluded tort recovery for economic loss absent physical harm or damage to property. In October 2013, the Ontario Court of Appeal released Arora v. Whirlpool Canada LP, (2) dismissing claims for pure economic loss in negligence for allegedly defective, non-dangerous consumer goods. The plaintiffs' pleading in this case was not capable of being amended because the claim, at its core, was for non-recoverable pure economic loss. 1. Background The plaintiffs sought to certify a class action against Whirlpool alleging that their front-loading washing machines were defectively designed and prone to developing an unpleasant smell, mold and mildew. Plaintiffs purchased Whirlpool machines from retail vendors, not from Whirlpool directly. They claimed damages for breach of express and implied warranty, breach of the Competition Act, (3) negligence and waiver of tort. The most significant claim advanced by the plaintiffs was in negligence for pure economic loss incurred as a result of alleged negligent design against Whirlpool as the manufacturer of a non-dangerous consumer product. The motion judge refused certification, concluding that none of the claims as pleaded disclosed a reasonable cause of action. Plaintiffs' appeal to Ontario's highest Court was subsequently dismissed. The factual background and analysis of this matter is discussed next. 2. Breach of Express Warranty Whirlpool provided warranties for the machines, but these warranties were limited to one year from the purchase date. The warranties provided that Whirlpool would pay for parts and labor to correct deficiencies in materials or workmanship. However, the Court found that the plaintiffs' claim was for the defective design of the washing machines. Further, the Court found that plaintiffs' claim on the express warranty were made more than one year after purchase and therefore were beyond the limited one year warranty. As a result, the Court of Appeal found that it was plain and obvious that the express warranties did not cover claims advanced by the plaintiffs. (4) 3. Breach of Implied Warranty Plaintiffs also claimed that Whirlpool breached the implied condition that the machines were fit for their purpose. The fact that Whirlpool did not sell the machines directly to the plaintiffs was critical to the viability of the implied condition claim. Although the Sale of Goods Act (5) provides a remedy for implied condition, the remedy provided under the Act is against a seller. In this case, Whirlpool was not the seller of the machines. Accordingly, the claim against Whirlpool for breach of implied warranty of fitness had no reasonable prospect of success. (6) 4. Breach of the Competition Act Plaintiffs claimed that Whirlpool breached the Competition Act by providing false or misleading representations. The plaintiffs alleged that they relied on an omission by Whirlpool, alleging that Whirlpool did not advise the plaintiffs that its machines were susceptible to mold and mildew build-up. …

The Heredity Oath in Canada's Citizenship Act Must Be Declared Optional on Appeal: The Fatal Errors Made in McAteer v. Attorney General of Canada, 2013 ONSC 5895

Canada's Citizenship Act requires aspiring citizens to express allegiance to the hereditary Queen and her heirs and successors as part of an oath of citizenship. In September 2013, Ontario's Superior Court of Justice ruled that the forced regal oath is a justifiable limit on free speech under Canada's Charter of Rights and Freedoms. An appeal of the decision is currently before Ontario's Court of Appeal. This paper examines the flaws in the lower court ruling in detail. First, the paper examines recent Canadian public opinion about the Charter and the monarchy. Second, the paper sets out the missing legislative history of the oath and similar Ontario oaths from 1945-2010, a crucial period that received insufficient attention from the lower court. This period includes the years after 1982, when the Charter became part of Canada's constitution and Ontario lawmakers across the political spectrum removed forced regal oaths in other noteworthy contexts to respect free speech under the Charter. Third, the paper sets out the key provisions of the Citizenship Act and Citizenship Regulations for the purpose of the appeal. Fourth, the paper methodically discusses each part of the Supreme Court of Canada's test for a justifiable limit on free speech, indicating at each stage why the forced regal oath is not justifiable. The paper concludes by explaining why the appropriate remedy is to declare the regal oath optional, effective immediately.

A call to arms.

AbstractThe Honourable Edward F. Ormston of the Ontario Court of Justice was asked to be the Honorary President of the Canadian Psychological Association for 2012-2013. He has long been concerned about people with health difficulties who come into contact with the legal system and as a result of his concern and compassion was instrumental in establishing the first Mental Health Court in Canada in Toronto. Justice Ormston provides a strong voice for psychological prevention and intervention services in Canada. At the 2013 CPA Convention in Quebec City, Justice Ormston gave a key note speech concerning the need to psychology to be more active in Canada's health system. His speech is recreated in this article.Keywords: access to services, justice, advocacyResumeOn a demande au juge Edward F. Ormston, de la Cour de justice de l'Ontario, d'agir a titre de president honoraire de la Societe canadienne de psychologie en 2012-2013. Depuis longtemps, ce dernier etait preoccupe par la situation des gens ayant des problemes psychologiques qui devaient traiter avec le systeme juridique. D'ailleurs, son souci et sa compassion ont ete determinants dans l'etablissement, a Toronto, du tout premier tribunal de la sante mentale au Canada. Le juge Ormston est un vigoureux defenseur des services psychologiques de prevention et d'intervention au Canada. Au Congres annuel 2013 de la SCP, a Quebec, le juge Ormston a prononce un discours liminaire sur la necessite de faire une plus grande place a la psychologie au sein du systeme de sante du pays.Mots-cles : acces aux services, justice, supervision, defense des interets.The sands are shifting in the health world, particularly in its organisation.In the current medical model the physician is in charge. The foundation of treatment is the diagnosis. Then follows the choice of medication by the doctor; then compliance with taking the medication is monitored; then entry into programs and perhaps housing is addressed as long as the patient is compliant with the medications. The goal is symptom relief, which tragically often results in a sick lonely person, spending his or her day on a coach in a comatose, drug-induced state watching the Days of our Life on TV. (I exaggerate for effect).Many things have come together to challenge this method of treatment.The United Nations Convention on the Rights of the Disabled signed by Canada, promises least restrictive, least intrusive treat- ment, patient involvement, patient choice, support systems to stay at home, housing, and stigma reduction. These are some of the topics that Canada as a nation will be judged upon by the United Nations. The Mental Health Commission of Canada adopted the Recovery Oriented Model. The Mental Health Strategies of most provinces do as well.The Mental Health Commission StrategyThe foundation of the Recovery Model is that Mental Health is different from the absence of illness, and is integral to our overall health. Mental health is a state of well-being in which an individual realizes his or her own potential and can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her own community (The Mental Health Commission of Canada, 2012, p. 11).There are many kinds of health and illnesses. They range from anxiety and depression to schizophrenia and bipolar disorder. The Mental Health Commission Strategy does not attempt to define the difference between problems and ill- nesses, or to resolve all the controversies surrounding the choice of terminology. Rather, the term mental health and illnesses has been intentionally chosen to be respectful of a wide range of views. It refers to the full range of patterns of behaviour, thinking, or emotions that bring some level of distress, suffering, or impairment in areas such as school, work, social, and family interactions or the ability to live independently. …

Accumulating Wisdom: An Updated Empirical Examination of Class Counsel's Fees in Ontario Class Actions

This article presents an empirical analysis of the decisions made by Ontario courts regarding the compensation of class counsel. The authors aim to provide an analytical tool that can be used as a guide for predicting and determining fee approvals in the future. The authors make the analysis more concrete by applying their empirical methodology to five currently ongoing class actions.

Ontario First Nations Limited Partnership v. Ontario Lottery and Gaming Corp.Case No. CV-12-461369, [2013] O.J. No. 2800; 2013 ON.C. LEXIS 2992; 2013 ONSC 4166 (Ontario Court of Justice, June 17, 2013)

Gaming Law Review and EconomicsVol. 17, No. 9 CasesOntario First Nations Limited Partnership v. Ontario Lottery and Gaming Corp.Case No. CV-12-461369, [2013] O.J. No. 2800; 2013 ON.C. LEXIS 2992; 2013 ONSC 4166 (Ontario Court of Justice, June 17, 2013)Published Online:18 Nov 2013https://doi.org/10.1089/glre.2013.17910AboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail FiguresReferencesRelatedDetails Volume 17Issue 9Nov 2013 InformationCopyright 2013, Mary Ann Liebert, Inc.To cite this article:Ontario First Nations Limited Partnership v. Ontario Lottery and Gaming Corp.Case No. CV-12-461369, [2013] O.J. No. 2800; 2013 ON.C. LEXIS 2992; 2013 ONSC 4166 (Ontario Court of Justice, June 17, 2013).Gaming Law Review and Economics.Nov 2013.658-661.http://doi.org/10.1089/glre.2013.17910Published in Volume: 17 Issue 9: November 18, 2013PDF download

Dennis v. Ontario Lottery and Gaming CorpCase No. C55923, [2013] O.J. No. 3468; 2013 ON.C. LEXIS 3610; 2013 ONCA 501 (Ontario Court of Appeal, July 31, 2013)

Dennis v. Ontario Lottery and Gaming CorpCase No. C55923, [2013] O.J. No. 3468; 2013 ON.C. LEXIS 3610; 2013 ONCA 501 (Ontario Court of Appeal, July 31, 2013)

Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario

This article considers the nature of common law development as exemplified by the recent privacy case of Jones v. Tsige. The author focuses on Jones, in which the Ontario Court of Appeal recognized the novel privacy tort of “intrusion upon seclusion”. Using a detailed analysis of the case as its basis, the article explores issues which have much wider significance for the judicial development of privacy laws: the process of incremental elaboration of the law, the moral impulses at work within it, and the relevance of imagination to its operations. By drawing out these discrete issues and analyzing the role that each plays in Jones, the article offers a framework for examining such questions in future privacy cases. Moreover, this article argues that the judgment in Jones brings valuable clarity to the analysis of the process of common law development. In particular, the essay concludes that the novel privacy tort recognized in Jones is the result of a legitimate incremental development rather than an instance of undue judicial activism.

Sex Work Law Reform in Canada: Considering Problems with the Nordic Model

The Nordic model is a piece of legislation, passed in Sweden in 1999, which criminalizes the purchase of sex. In Canada, exchanging sex for money is not illegal, but virtually every activity associated with prostitution is. Following the Ontario Court of Appeal’s decision in Bedford v. Canada, the question of what type of legislation is most appropriate with respect to prostitution has become even more important. This article begins by evaluating the degree of success (or lack thereof) of the Nordic model. The article then goes on to determine whether legislation similar to the Nordic model would be constitutional if adopted in Canada.

Ontario Court of Appeal Takes a Spin at Roulette: Moreira v. Ontario Lottery and Gaming Corp., 2013 ONCA 121, February 26, 2013

Ontario Court of Appeal Takes a Spin at Roulette: <i>Moreira v. Ontario Lottery and Gaming Corp.</i>, 2013 ONCA 121, February 26, 2013

Indalex: Priority of Provincial Deemed Trusts in a CCAA Restructuring

On February 1, 2013, Supreme Court of Canada (“SCC” or “Court”) released its much awaited decision, Sun Indalex Finance, LLC et al. v. United Steelworkers et al. The case involved a company, Indalex, that was pursuing restructuring proceedings under the Companies’ Creditors Arrangement Act. Prior to its restructuring, Indalex had been failing to meet its employer contribution obligations to the company’s pension plan and when the pension plan was wound up, there was a deficiency in the funds. During its restructuring, Indalex obtained debtor-in-possession (“DIP”) financing to fund its operations and when it subsequently sold its business, the proceeds of the sale were not enough to pay its creditors. The members of the pension plan claimed that the shortfall in the pension plan entitled them to a super-priority, such that their claim would be paid before the DIP lenders.There were two main findings by the Court. With regard to the deemed trust, the Court was split but it upheld the finding of the Ontario Court of Appeal that a deemed trust had arisen under the Pension Benefits Act in favour of the pension holders for the wind-up deficiency payments. However, the SCC overturned the Ontario Court of Appeal in its finding of the priority of the deemed trust, unanimously maintaining that the deemed trust would not be granted super-priority over the DIP lenders.The Court also unanimously agreed with the Ontario Court of Appeal in its findings on the existence of a fiduciary duty owed by Indalex as administrator of the pension plans, and on Indalex’s breach of that duty. A majority of the Court, disagreed, however, with the Ontario Court of Appeal’s remedy for that breach, finding that the imposition of a constructive trust was not appropriate.This comment will address two issues arising from the decision. First, the priority afforded to the DIP lender over the pensioners has caused considerable disappointment. Pensioners and other creditors are vulnerable against DIP lenders and it can seem considerably unfair and unjust. The priority afforded by the Court, however, is arguably ultimately justified when the reasons for DIP priority are articulated. Second, the priority of DIP lenders over deemed trusts will be examined, and the way the doctrine of federal paramountcy can operate between provincial legislation and the CCAA will be addressed.

Coverture and Private Separation: Britain and Ontario in Comparative Perspective

The paper explores the application of coverture in nineteenth-century Ontario from a perspective that is informed by a detailed understanding of its operation in the English context. Coverture was legally complex because of the many exceptions to it. Only some of the exceptions were transferred to Ontario. The effect of this incomplete transfer is examined by analyzing the treatment of private separation agreements in nineteenth-century Ontario courts. What emerges is that the substantive law remains essentially the same, but in the different institutional and procedural setting of Ontario there appears to have been a disproportionate and successful use of litigation tactics intended to delay or deny the enforcement of private separation agreements.

SEX WORK, LAW, AND VIOLENCE: BEDFORD V. CANADA AND THE HUMAN RIGHTS OF SEX WORKERS

In Bedford v. Canada, two levels of Ontario courts ruled that a selection of criminal laws prohibiting prostitution-related activities unjustifiably deprive sex workers of their right to liberty and security of the person.The courts struck down or modified some of the offending provisions to ensure that sex workers are better able to take precautions against violence. While sex workers consider the Ontario Superior Court of Justice ruling a victory and the Ontario Court of Appeal ruling a partial victory, the government, some women’s rights groups, and other defenders of the provisions argue that courts ventured into a “policy thicket”, which is to suggest that they had stepped outside of their legitimate institutional role. Associated concerns include that the decisions effectively constitutionalize prostitution and will pre-empt or curtail Parliament’s consideration of legislative options. In this paper, the authors clarify misconceptions about the constitutional foundations and implications of Bedford, and explore how the ruling might affect legal and policy-based interactions among various stakeholders. Approaching constitutional rights as discursive mechanisms, rather than as “trumps”, we argue that Bedford will not hinder the continuation of democratic debate about whether, how, and why aspects of sex work should be regulated. To the contrary, Bedford is more likely to enhance the quality of debates by making them more inclusive of the perspectives of sex workers as well as accommodative of growing empirical research that has hitherto been ignored or misrecognized. Dans l’affaire Bedford v. Canada, deux tribunaux ontariens ont conclu que des dispositions législatives du droit criminel interdisant les activités liées à la prostitution privaient de façon injustifiée les travailleurs et travailleuses du sexe du droit à la liberté et à la sécurité de leur personne. Ces tribunaux ont déclaré inconstitutionnelles certaines des dispositions constestées ou les ont modifiées dans le but d’assurer que les travailleurs et travailleuses du sexe puissent prendre des mesures pour se protéger contre les actes de violence. Si les travailleurs et travailleuses du sexe considèrent cette décision comme une victoire partielle, le gouvernement, certains groupes de défense des droits des femmes et d’autres défenseurs desdites dispositions prétendent, pour leur part, que les tribunaux se sont aventurés en « terrain politique », ce qui suggère qu’ils ont outrepassé leur rôle institutionnel légitime. Il en découle des préoccupations parmi lesquelles ces décisions rendraient effectivement constitutionnelle la prostitution et qu’elles écarteraient ou limiteraient toute considération d’options législatives par le Parlement. Dans le présent document, les auteurs dissipent les malentendus sur les fondements et répercussions constitutionnels de l’affaire Bedford, et explorent les incidences que pourrait avoir cette affaire sur les interactions aux niveaux juridiques et politiques des différentes parties intéressées. Nous sommes d’avis que, en abordant les droits constitutionnels comme des mécanismes discursifs et non comme des droits primordiaux, la décision Bedford n’empêchera pas la poursuite du débat démocratique sur les questions de savoir si oui ou non, comment et pourquoi les divers aspects du travail du sexe devraient être soumis à une réglementation ou, même, criminalisés. Bien au contraire, l’affaire Bedford est susceptible d’améliorer la qualité des débats en les rendant plus inclusifs des perspectives des travailleurs et travailleuses du sexe de même que plus ouverts à la recherche em

Recovery for Psychiatric Injury in Canada: A Tale of Two Cases

Mustapha v. Culligan of Canada Ltd [2008] 2 SCR 114 was the Supreme Court of Canada’s first opportunity for more than 50 years to restate the principles of liability for psychiatric injury as applied in Canada. However, McLachlin CJ’s economically worded judgment did not go into the issues in any detail. In the recent case of Healey v. Lakeridge Health Corp 2011 ONCA 55, the Ontario Court of Appeal had to resolve an ambiguity in McLachlin CJ’s judgment: the plaintiffs argued that it had lowered the recognisable psychiatric illness threshold, but the Ontario Court of Appeal upheld the orthodox view. Healey, however, affirms another distinctive trend seemingly initiated by Mustapha: to treat issues of psychiatric injury under the heading of remoteness rather than duty.

Supreme Court of Canada to Hear Pharmacy Challenges to Ontario Ban on Private-Label Generics

The legal fight between the Ontario government and 2 pharmacy chains over generic drug regulations is heading to Canada's highest court. In a ruling on August 30, 2012, the Supreme Court of Canada revealed its decision to hear 2 appeals on the issue — one from Shoppers Drug Mart and the other from the owners of the Rexall chain, the Katz Group of Companies. The battle between the 2 companies and the Ontario government dates back to 2010, when the province implemented new generic drug regulations, that among other measures, banned pharmacies from selling their own private-label generic drugs. The province maintained private-label generics would reduce competitiveness and drive up prices. Shoppers and the Katz Group launched a legal challenge before the Ontario Divisional Court and they won the first round. In February 2011, the court ruled that the province went too far with the ban on store-brand generics. That ruling was overturned by the Ontario Court of Appeal, which ruled in favour of the provincial government in December 2011 — restoring the prohibition on private-label generic drug products. The Supreme Court of Canada is expected to hear the appeals in May 2013.

The Viking Homes Saga: Group Home Placements for Juveniles

Juvenile Courts, particularly in Ontario, have always assumed that they had the authority to commit delinquent children into the care and custody of private, corporate-operated group homes. However, a recent ruling of the Supreme Court of Ontario, upheld by the Ontario Court of Appeal, had put an end to this idea when placements with Viking Homes were held to be beyond the powers of a Juvenile Court. This paper examines the value of the group home programme to juvenile delinquents and analyzes two judgments in great detail to show that their reasoning is not entirely free of doubt.

Prima Facie Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada’s Human Rights Code Jurisprudence?

In Ontario (Disability Support Program) v Tranchemontagne, the Ontario Court of Appeal incorporated the Charter test for discrimination into the inquiry for whether a claimant has established a prima facie case of discrimination under the Ontario Human Rights Code. This standard requires a claimant to establish that a rule is substantively discriminatory, in the sense of perpetuating disadvantage, stereotyping or prejudice, before the burden shifts to the respondent to establish a statutory defence or show that the rule was bona fide under the circumstances. This paper argues that by incorporating these substantive, normative elements into the prima facie case, the Court of Appeal has undermined 30 years of stable Supreme Court jurisprudence establishing that for the purpose of human rights legislation, a prima facie case requires only evidence of a causal or factual link between the protected characteristic and the differential treatment. While a serious debate can be had as to whether or not the test for discrimination under human rights legislation should mirror the Charter approach, it is submitted that this requires the courts to acknowledge that such a change represents a significant departure from the Supreme Court jurisprudence. Furthermore, to the extent that such a change is deliberate, it is incumbent upon the courts to justify this rather large reorientation of the law.