PS v Ontario: ONCA Finds Ontario Mental Health Law Breached the Charter

The Ontario Court of Appeal’s judgment in PS v Ontario, 2014 ONCA 900, has determined that a detainee in a mental health institution suffered discrimination and a denial of procedural fairness, contrary to his Charter rights under Sections 15 and 7. The case arose from the 19-year-long involuntary detention of a man, identified only as PS, at a mental health institution. Ontario’s Mental Health Act, RSO 1990, c M.7 [MHA], permitted PS to be institutionalized for an indefinite period of time, but failed to provide a procedural mechanism for PS to meaningfully challenge the conditions of his therapeutic treatment. For PS, who has been deaf since childhood, these conditions resulted in a lack of access to deaf-appropriate treatment during his detention.

Overturning the decision of an application judge and finding a violation of PS’s Charter rights, the Court of Appeal severed those portions of the MHA that allowed for the indefinite detention of involuntary mental health patients – thereby limiting the term of such detentions to 6 months. By recognizing an involuntary mental health patient’s interest in recovery as a necessary core consideration for mental health law, the Court of Appeal’s decision marks a significant advancement in civil rights for individuals with mental illnesses.

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[filed: Administrative Law Charter Health and Welfare]

RCMP Permitted to Form Unions: A Purposive Approach to Freedom of Association in Mounted Police Association of Ontario v Canada

In Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, the Supreme Court of Canada (“SCC”) made a major pronouncement on the scope of the section 2(d) freedom of association right under the Canadian Charter of Rights and Freedoms. In doing so, the court overturned Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989 [Delisle], in declaring the impugned provision (section 2) of the Public Service Labour Relations Act, SC 2003, c 22 [PSLRA], to be of no force and effect after a period of 12 months.

This case is important for providing more guidance on the standard that must be met to show an infringement of freedom of association, as it appears that the Court is moving back to the “substantial interference” standard rather than the seemingly impossible-to-meet “impossibility” standard established in Ontario (Attorney General) v Fraser, [2011] 2 SCR 3 [Fraser]. In doing so, the majority of the Court recognized that the PSLRA substantially interfered with the freedom of association rights of RCMP members.

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[filed: Charter Constitutional Law Labour and Employment]

Legal “Persons”? The New York Court of Appeals, Chimpanzees, and Habeas Corpus

On December 4, 2014, five judges of the Appellate Division of the New York Supreme Court, Third Judicial Department, delivered judgment on a rather unusual matter. In The Nonhuman Rights Project v Lavery, 518336 (NY App Div), the court had to consider whether a captive chimpanzee could be considered a legal “person” entitled to a habeas corpus proceeding.

This case raises some basic questions about law, morality, and what we owe non-human animals. In what follows, I outline the matter’s history, the arguments of the petitioner representing Tommy the chimpanzee, and the court’s decision to deny Tommy the status of “person” in the relevant legal sense. I close with some reflections on the distinction between moral and legal personhood and what morality might require of us in the future.

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[filed: Animal Rights]

Refugees, Human Smuggling, and Third-Party Altruism: R v Appulonappa

On February 16, 2015, the Supreme Court of Canada (“SCC”) will hold a hearing for the appeal of R v Appulonappa, 2014 BCCA 163, a case that will have a significant impact on immigration and refugee law. The SCC’s eventual decision in Appulonappa will deeply affect both refugee claimants and those who assist asylum seekers entering Canada.

The United Nations Convention relating to the Status of Refugees (the Convention”), July 28, 1951, [1969] Can. T.S. No 6 and the Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, Can. T.S. 1969 No. 29 (the “Protocol”) set out Canada’s obligations with respect to asylum seekers. For example, the Convention precludes refugees from facing sanctions for entering an asylum country without the proper documentation.

At issue in Appulonappa, however, is the question of what, if any, obligations Canada has to those who help smuggle refugees for altruistic reasons.

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[filed: Charter Citizenship and Immigration]

Ontario Court of Appeal Says Housing Rights Case Can’t Proceed: Tanudjaja v Canada

Ontario housing activists were disappointed by a December ruling from the Ontario Court of Appeal. In a 2-1 decision, the court decided that the pleadings in Tanudjaja v Canada, 2014 ONCA 852 [Tanudjaja], did not present the bench with a justiciable issue, upholding a lower court decision to strike the application.

The application had asked the court to decide, in essence, whether adequate housing is a positive right under s. 7 and s. 15 of the Charter. It stated that changes to legislation, policies, programs and services by the Canadian and Ontario governments have led to inadequate housing and increased homelessness, which breach the s. 7 right granting citizens the “right to life, liberty and security of the person” and breach the s. 15 right of protection against discrimination. The application presented the court with a 16-volume evidentiary record to support its claim. The record was almost 10,000 pages long, and included 19 affidavits, 13 of which were from experts.

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[filed: Charter Human Rights]

Live from the Supreme Court of Canada: Misdirection of the Jury on Post-Offence Conduct in R v Rodgerson

On January 14, 2015, the Supreme Court of Canada (“SCC”) heard oral arguments for the case Her Majesty the Queen v Jason Rodgerson [Rodgerson] regarding: firstly, whether or not the majority of the Ontario Court of Appeal (“ONCA”) in R v Rodgerson, 2014 ONCA 366 [Rodgerson, ONCA] erred in law by finding reversible error in the jury charge because the trial judge failed to explain to the jury the mandatory reasoning process through which it could consider the relevant post-offence conduct in assessing the issue of intent for murder; and secondly, whether or not the ONCA erred in law by failing to apply the curative proviso outlined in s. 686(1)(b)(iii) of the Criminal Code, RSC 1985, c C-46.

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[filed: Criminal Law]

Rankin Construction Inc v Ontario: Lessons in the Law of Tender

On September 16, 2014, the Ontario Court of Appeal (ONCA) released its decision in Rankin Construction Inc v Ontario 2014 ONCA 636 [Rankin]. In the decision, Justice Hoy helps to clarify the law of tender by addressing non-compliant bids and the use of exculpatory clauses.

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[filed: Contracts]

The Court of Appeal for Ontario Applies the Mohan and Abbey Tests: Meady v Greyhound Canada

In Meady v Greyhound Canada Transportation Corp, 2015 ONCA 6, the Ontario Court of Appeal upheld a trial judge’s decision to disallow evidence from two experts. The appeal arose from a Greyhound bus accident that occurred in Northern Ontario in December 2000. The appellants in this case are passengers who chose to sue the respondents: the bus driver, Greyhound, the police officers involved, the Crown employer, and the passenger responsible for causing the crash.

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[filed: Evidence Law Torts]

Union Carbide Canada Inc v Bombardier Inc: A Clarification of Privilege and Confidentiality

In Union Carbide Canada Inc v Bombardier Inc, [2014] 1 SCR 800 [Union Carbide], the Supreme Court of Canada (“SCC”) clarified the interaction between settlement privilege and confidentiality clauses in mediation contracts. In particular, the SCC determined that a properly drafted confidentiality clause could exclude one of the exceptions to settlement privilege.

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[filed: Civil Procedure Contracts Evidence Law]

BC Teachers’ Federation: A Finding of Discrimination Against Birth Mothers Affirmed by the SCC

On November 14, 2014, the Supreme Court of Canada rendered its oral judgment in British Columbia Teachers’ Federation v British Columbia Public School Employers’ Association, 2014 SCC 70 [BC Teachers], overturning the British Columbia (“BC”) Court of Appeal and affirming an arbitrator’s finding of discrimination against birth mothers. The case hinged on the determination of whether parental leave and pregnancy leave served significantly different purposes. If a significant difference was affirmed, then birth mothers would be entitled to take both leaves consecutively in order to receive the full benefit of each.

The matter was first brought before an arbitrator who affirmed the distinct purposes of each leave and found that it was discriminatory for an employer to deny the full benefit of both leaves to birth mothers. The BC Court of Appeal overturned the arbitrator before the Supreme Court restored the arbitrator’s ruling and affirmed the distinct purposes of pregnancy and parental leave. While it remains to be seen whether the Supreme Court’s ruling will have significant practical impact in the long term, the ruling signals the growing need for employers to take care in understanding and addressing employees’ family status needs whenever employment benefits are attached to such needs.

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[filed: Administrative Law Charter Labour and Employment]