Legal Writing Portfolio
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CASE BRIEF
Re: Ontario v Trinity Bible Chapel et al, 2022 ONSC 1344[1]
Facts
Heard in Jan/Feb 2022, at the Ontario Superior Court of Justice in St. Thomas, this case was between the Attorney General of Ontario and Trinity Bible Chapel et al; and between Her Majesty the Queen in Right of Ontario and The Church of God (Restoration) Aylmer et al. Due to their many significant similarities, the two cases were tried together.
The claimants brought a motion to set aside three judicial orders directing compliance with religious gathering limits obtained by Ontario to enforce measures intended to reduce risk of Covid-19 transmission. The moving parties wanted these orders declared constitutionally invalid under section 52 of the Constitution Act, 1982[2] for restricting religious freedom under the Charter of Rights and Freedoms.[3]
Issues
1. Did the Ontario regulations restricting the size of religious gatherings interfere with the fundamental guarantee of freedom of religion in section 2(a), or any other fundamental freedoms guaranteed in section 2, of the Charter[4]?
2. If there was interference with freedoms guaranteed by section 2, are such prescribed limitations reasonable and demonstrably justified in a free and democratic society under section 1?
Rules
From the Constitution Act, 1982:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[5]
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.[6]
52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.[7]
Analysis
This case hinged on two key aspects: whether there was an infringement of section 2 of the Charter, and if so, whether that infringement was justified as per section 1.
Rights protections under section 2(a) are not absolute[8], and the provision does not “expressly qualify the scope of the guarantee.”[9] Whether the limits on attendance for religious gatherings constituted an infringement needed to be determined. Any law that “merely creates an inconvenience” or a “trivial or insubstantial” burden does not constitute an infringement.[10] This was supported by the cases of Hutterian[11] and Trinity Western.[12]
To aid in determining which limits or burdens constitute infringement, the court considered a landmark case in the development of the definition of the rights protected under section 2(a), R. v. Big M Drug Mart Ltd,[13] where the court found that “the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination”[14] were essential characteristics of the freedom of religion guaranteed by the Charter.
Another consideration was whether the churches, as non-human entities, could assert a claim of infringement, since “a non-human entity does not readily experience conscience and belief.”[15] The court recognized that “an entity organized for the sole purpose of promoting faith-based activity is a collective expression of religious belief and practice”[16] and should therefore have standing to raise the Charter rights of their individual human parishioners, since it was “the collective expression of belief that was threatened in this case“[17] and “the individual and collective aspects of freedom of religion are indissolubly intertwined.”[18]
The court did not need to determine if religious gatherings were objectively necessary for religious freedom, only that the parishioners had a sincere belief in the necessity of gathering. The “collective character of religious activity” was recognized as critical,[19] therefore any restrictions on gathering for communal worship “directly and significantly” impacted the ability of individuals to “manifest and practice their religious beliefs.”[20] The court found that restrictions on gatherings was a “substantial interference”[21] with religious freedom.
The court deferred to the claimants’ assertions that any conceivable alternatives to gathering in person (such as video conferences or multiple small services) would not achieve their religious objectives,[22] since the “manner and practice of worship is at the core of religious freedom, and the authority to determine such matters lies with the claimants.”[23] The infringement could not be attenuated by alternative methods of religious services delivery, and therefore “the numerical or percentage capacity limits imposed on religious gatherings … did infringe s. 2(a) of the Charter.”[24]
As for the sub-issue of possible infringement on other section 2 freedoms, the court found infringement upon one of the rights guaranteed under s. 2 was sufficient and did not need to evaluate reasoning for violations of any other category beyond subsection (a). This was supported by the decision in Law Society of British Columbia v. Trinity Western University.[25]
Having established that a section 2 right had been infringed by the impugned orders, the court needed to determine if the infringement was justified under section 1. To aid in the court’s analysis, there currently are two established mechanisms for reasoning: the Oakes test[26] and the Doré framework.[27] The court found this case to be distinguishable from Doré because the impugned measures dealt with a “complex social problem” instead of one individual, and it was a case where public officials sought to protect “a vulnerable segment of the population”[28] from “an unprecedented public health emergency.”[29]
The court found that the regulations “were rationally connected to a pressing and substantial objective and were proportionate in their effect” and that they were “upheld under section 1 of the Charter”[30] following the Oakes test, since:
i) the infringement was properly prescribed by law, under section 7.0.2 of the Emergency Management and Civil Protection Act[31] and other statutes and regulations.[32]
ii) The objective of the orders related to a pressing and substantial social concern, since “containing the spread of the virus and the protection of public health is a legitimate objective that can support limits on Charter rights.”[33]
iii) The orders were rationally connected to the law’s purpose. The threshold here is that the government must show that it is “reasonable to suppose that the limit may further the goal, not that it will do so”, following Hutterian.[34] The court believed that it was logical that “restricting person-to-person contact”, in a religious gathering especially, may reduce the risk of infection, since “droplets are more likely to pass from person to person when there is singing, chanting, and congregating with others for a prolonged period.” [35] The court noted the “risk is amplified where, as here, the pastors of the churches have expressed a disinclination to enforce physical distancing requirements.”[36]
iv) The orders impaired the right as little as possible. The objective of the measures was to reduce demand on hospitals and intensive care units, and the court found that they “were carefully calibrated” on a “regular basis”[37] to reflect the “best scientific information available”[38] about variants of concern and vaccination rates. The court also noted that “on complex social issues, the minimal impairment requirement is met if Parliament has chosen one of several reasonable alternatives.”[39] As per Hutterian,[40] Charkaoui,[41] and JTI-Macdonald,[42] the test here is “whether there is an alternative, less drastic means of achieving the objective.”[43] The court believed the Ontario’s choices were “within the range of reasonable alternatives” and that the regulations were “minimally intrusive” as a “reasonable means of achieving public protection.”[44]
v) The orders’ benefit to society outweighed the negative effects of infringement. While balancing the possibilities of alternative mode of delivery for religious services, the court found that accommodating absolute religious freedom would have been more than a “legitimate inconvenience” for the government; rather, it would have been “a wholesale abdication of government responsibility to act in the public interest.”[45] The court believed that the benefits of the limitations “outweighed the deleterious effects on religious freedom”, and that the government had “met its burden to establish that the regulations in issue are reasonable limits, demonstrably justified in a free and democratic society.”[46]
Conclusion
The ratio decidendi for this case relied essentially on one of the oldest common law debates: whether the sovereign is subject to the law. Since “the state is constantly in danger”,[47] and thus there is always a reason for suspending or limiting the law, the Charter guarantees that decision-makers cannot be above the law. Despite the state of emergency caused by the Covid-19 pandemic, and the severe risk to public order, there are no temporal exceptions to the requirements of good governance. Emergency measures must always comply with the law, and any orders, statutes, or other instruments that may infringe on Charter rights are subject to a strict, reverse-onus judicial test.
In this case, the emergency measures that Ontario put into effect to restrict the size of indoor and outdoor gathering constituted a substantial interference with the fundamental guarantee of freedom of religion in section 2(a) of the Charter. Subsequently, the orders were subjected to the Oakes test, and it was determined that the limitations were reasonable and demonstrably justified in a free and democratic society under section 1. The motions were dismissed, and the historical emergency measures were upheld.
[1] Ontario v Trinity Bible Chapel et al, 2022 ONSC 1344
[2] Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11
[3] Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11
[4] Ibid
[5] Ibid
[6] Ibid
[7] Supra note 2
[8] Peter Hogg, Canada Act 1982 Annotated, Carswell: Toronto, 1982, at 12
[9] Supra note 1, at para. 89 and 90
[10] Ibid, at para. 90
[11] Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567 (“Hutterian”)
[12] Trinity Western University v British Columbia College of Teachers, 2001 SCC 31, [2001] 1 SCR 772 (“Trinity Western”)
[13] R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295 (“Big M”)
[14] Ibid, at p. 336
[15] Supra note 1, at para. 80
[16] Ibid
[17] Ibid, at para. 103
[18] Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, at para. 94
[19] Supra note 1, at para. 83
[20] Ibid, at para. 97
[21] Ibid, at para. 78
[22] Ibid, at para. 110
[23] Ibid, at para. 112
[24] Ibid, at para. 113
[25] Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293
[26] R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103
[27] Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395
[28] Supra note 1, at para. 126
[29] Ibid, at para. 127
[30] Ibid, at para. 120
[31] Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9
[32] Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“ROA”); Rules for Areas in Stage 1, O. Reg 82/20
[33] Supra note 1, at para. 132
[34] Ibid, at para. 135
[35] Ibid, at para. 136
[36] Ibid, at para. 154
[37] Ibid, at para. 120
[38] Ibid, at para. 146
[39] Ibid, at para. 140
[40] Supra note 7
[41] Charkaoui v Canada, 2007 SCC 9, [2007] 1 SCR 350 (“Charkaoui”)
[42] Canada (Attorney General) v JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 41 (“JTI-Macdonald”)
[43] Supra note 1, at para. 141
[44] Ibid, at para. 157
[45] Ibid, at para. 172
[46] Ibid, at para. 173
[47] Nomi Claire Lazar, States of Emergency in Liberal Democracies, Cambridge: Cambridge, 2009, at 35
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MEMORANDUM
TO: Lailla Pavicevic
FROM: Carey Graham
RE: R v Schlaepfer, 2022 ONCA 566
DATE: June 14, 2023
FACTS
The appellant, Patrick Schlaepfer, was detained in March 2016, for production of marijuana. They were granted interim judicial release in May 2016, experiencing punitive conditions during bail by being unable to access appropriate medical care. In February 2018, they pled guilty, and were given a sentence of 14 months, minus 4.2 months for time served in pre-sentence custody.
ISSUES
1. Whether the trial judge erred by not considering the mitigating effect of the punitive conditions of the interim judicial release in determining sentencing.
RULES
1. The trial judge made an error by not considering the punitive bail conditions in determining sentencing. According to R v Downes (2006 CanLII 3957 (ON CA)), time spent under stringent bail conditions must be considered as a relevant mitigating factor when determining a sentence.
ANALYSIS
The trial judge erred in three ways: first, by claiming that the delays were mostly caused by the appellant, the judge erred in concluding that it constituted wrongful conduct. The delays related to the failure of the correctional centre to promptly respond to a subpoena regarding the lack of medical care. Also, the appellant’s decision to wait until entering a guilty plea was a legitimate exercise of constitutional rights, and thus was not wrongful conduct.
Second, the evidence does not support the judge’s conclusion regarding the appellant’s access to health care for their complex medical issues. The appellant was not able to access their required methadone dose, and also developed an untreated tooth infection, suffering significant pain from a lack of health care for two years. This is because of the bail conditions of being supervised by a surety in a location far from the appellant’s health care providers.
Third, the judge should not have held that Schlaepfer could have sought a bail variation. Other amendments requested by the appellant had been granted by the Crown, but the latter refused to consent to an overnight term that would have allowed the appellant enough time to travel from the place of their surety to the place of their care providers.
To sum up, it is not the reasonableness of the conditions of interim judicial release that governs a Downes credit assessment. It is the specific impact that the conditions have on the individual. In this case, the lack of medical care amounted to a form of disproportionate punishment, which warrants mitigation with regards to sentencing.
CONCLUSION
The trial judge had made an error of law by not properly applying the test for the Downes credit. The appellate judge revised the sentence, granting the appellant an additional 5 months from their sentence, making for a net sentence of 4.8 months. The original 14-month sentence was upheld, as was the 4.2 months of Downes credit for pre-sentence custody.
I concur with the appellate court’s assessment in considering the specific impact of the bail conditions on the individual as a form of punishment. This upholds the principles of natural and fundamental justice and aligns with common law precedents in determining what makes conditions “punitive” or unreasonable.
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FACTUM OF THE MOVING PARTY
I. OVERVIEW
1. The Defendant, Sally Sales, is seeking to have default judgment set aside in this matter, since they have a meritorious defence consisting of at least two triable issues with a reasonable chance of success. Any delays in bringing this motion forward are outweighed on balance by the strength of their position in the action.
II. STATEMENT OF FACTS
2. The Defendant, Sally Sales, travelled to Ottawa from Toronto for a conference in their capacity as a sales manager at a department store. On December 7, 2022, they rented a car for a term of three days, from Ontario’s Finest Rentals (“OFR”) at the Ottawa airport. The Defendant accepted OFR’s offer of a Loss Damage Waiver (“LDW”) at a cost of $35.00 per day.
3. While driving from the airport to her hotel, it rained heavily. The road was covered in water and the Defendant’s rental car stalled and would not restart. The Defendant contacted OFR, who sent a tow truck for the car.
4. Allegedly, on December 15, 2022, OFR discovered that the rental car in question required a new engine, at a cost of $8,500.00. OFR sued the Defendant in Small Claims Court for that amount, claiming that the LDW did not cover water damage.
5. The Defendant disagrees that the LDW does not cover water damage and did not agree to accept at the time of signing the contract that the LDW was not in fact an insurance policy for loss and/or damage.
III. ISSUES AND ARGUMENTS
A. Whether the Small Claims Court has the authority to set aside default judgment.
6. The Small Claims Court has the authority to set aside default judgment in the interests of the expedient and fair disposition of justice, under Rule 11.06 of the Rules of the Small Claims Court. The test is also confirmed in Mountain View Farms Ltd v McQueen, 2014 ONCA 194 (CanLII), at para 55.
Setting Aside Noting of Default by Court on Motion
11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that,
(a) the party has a meritorious defence and a reasonable explanation for the default; and
(b) the motion is made as soon as is reasonably possible in all the circumstances.
Rules of the Small Claims Court (O. Reg. 258/98) under the Courts of Justice Act, RSO 1990, c C43
Mountain View Farms Ltd v McQueen, 2014 ONCA 194 (CanLII)
B. Whether the failure to defend the action was inadvertent on the part of the defendant.
7. The failure to defend the action was not the result of deliberate or careful planning on the part of the Defendant. The Defendant was merely distressed by the frivolous and vexatious suit against them and was not attempting to cause delay. Even if their actions were generally intentional, on balance the issue of causing delay is outweighed by the apparent strength of their position in the action.
Goudy v National Car Rental (Canada) Inc, 2005 CarswellOnt 2063, at para 11.
C. Whether the defendant acted quickly when they became aware of the judgment.
8. The Defendant admittedly did not act as quickly as they may have done to bring a motion to set aside default judgment, as they were still mentally distressed about the Plaintiff’s position, which is arguably vexatious and frivolous, having no reasonable cause of action. The action against the Defendant is vexatious because it cannot reasonably be expected to obtain relief, defined as such in Re Lang Michener and Fabian and GoodLife Fitness Centres Inc v Hicks. As such, the Defendant acted as quickly as they could under the stressful circumstances to bring this motion.
Re Lang Michener and Fabian, 1987 CanLII 172 (ON SC)
GoodLife Fitness Centres Inc v Hicks, 2019 ONSC 4942 (CanLII)
D. Whether the defendant has a meritorious defence.
9. Defendants should always have the opportunity to defend themselves on the merits of the case, in the interests of natural justice. On balance, a meritorious defence outweighs any delays caused by the Defendant due to the desirability of having each party being heard and treated with fairness.
Peterbilt of Ontario Inc v 1565627 Ontario Ltd, 2007 ONCA 333 (CanLII), at para 6
Lloyd v McMahone, [1987] A.C. 625, at 702
Baker v Canada, 1999 CanLII 699 (SCC), [1999] SCJ No 39; [1999] 2 SCR 817; (1999) 174 DLR (4th) 193 (SCC)
Goudy v National Car Rental (Canada) Inc, 2005 CarswellOnt 2063, at para 11.
Whether the defendant’s materials disclose a triable issue.
10. The Defendant raises two legitimate issues: the first is whether, in its wording, the contract of LDW proffered by OFR protects the Defendant from the consequences of what occurred. The second is whether, at the time they purchased LDW, OFR led the Defendant to believe that they would be protected from liability for what in fact occurred, namely damage to the automobile. This is similar to the issue raised in Goudy v National Car Rental (Canada) Inc as well as Tilden Rent-A-Car Co. v Clendenning, which was resolved in favour of the party in the situation in which the Defendant found themself.
Goudy v National Car Rental (Canada) Inc, 2005 CarswellOnt 2063
Tilden Rent-A-Car Co v Clendenning (1978), 18 OR (2d) 601 (ONCA)
Whether the triable issue has a reasonable chance of success.
11. The issue of whether the LDW contract protects the Defendant from the consequences of damage to the automobile should be decided in favour of the Defendant, since they did not violate and terms or conditions of their rental agreement, and as such, OFR has essentially agreed to waive the Defendant’s financial responsibility for damage to the vehicle by the simple understanding of the meaning of the words “Loss Damage Waiver”. There is no prima facie evidence that the Defendant agreed to the LDW not being an insurance policy, nor is there any prima facie evidence that OFR’s LDW contract specifically excluded water damage.
Budget Rent-A-Car of Edmonton Ltd v Montai, 2001 ABQB 243 (CanLII), at para 22
E. Submissions regarding costs.
12. The Defendant requests an order for costs pursuant to the Courts of Justice Act and the Rules of the Small Claims Court, including specifically Rules 14.07(2) and 19.06.
Rules of the Small Claims Court (O. Reg. 258/98) under the Courts of Justice Act, RSO 1990, c C43
IV. ORDER SOUGHT
13. The Defendant moves to set aside default judgment pursuant to Rule 11.06 of the Rules of the Small Claims Court because the party has a meritorious defence and a reasonable explanation for the default.
Rules of the Small Claims Court (O. Reg. 258/98) under the Courts of Justice Act, RSO 1990, c C43
14. The Defendant seeks their costs in the action.
All of which is respectfully submitted.
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FACTUM OF THE APPLICANT
I. OVERVIEW
1. The Applicant, Carlos Trabalhar, is seeking to have their matter reconsidered or the order varied, due to an error in law and/or fact in the adjudicator’s determination of whether the Applicant suffered minor injuries within the Minor Injury Guideline, despite evidence of pre-existing medical condition likely to impair maximal recovery; and, subsequently, the Applicant is seeking an order mandating their entitlement to certain long-term Income Replacement Benefits and Attendant Care Benefits.
II. STATEMENT OF FACTS
2. The Applicant, Carlos Trabalhar, was injured in a motor vehicle collision, or Motor Vehicle Accident (MVA), on February 14, 2022; injuries to his shoulder and neck made it difficult to go back to his job and handle his everyday activities.
3. The Applicant filed a claim for Attendant Care Benefits (ACB), which totaled $100.00 per week for 104 weeks, starting on the date of the accident.
4. The Applicant also filed a claim for a therapeutic treatment plan. Citing the Applicant's soft-tissue injuries as falling within the Minor Injury Guideline (MIG), the Respondent, Garden Insurance Company, rejected the claim and capped the treatment plan costs for the Applicant at $3,500.00.
5. Despite evidence to the contrary, the Applicant denied having any pre-existing conditions that would have an impact on his recovery; his denial is offered as further evidence of severe psychological impairment.
6. The Applicant also filed claims for Income Replacement Benefits (IRB).
7. The Applicant's testimony and claims were deemed incredible by the adjudicator, despite clear evidence of severe psychological impairment, a pre-existing condition likely to interfere with maximal recovery.
8. The Applicant was determined to only be entitled to $3,500.00 for treatment after the adjudicator found that his damage fell within the Minor Injury Guideline.
9. The misclassification of the Applicant’s injuries amounts to an unreasonable withholding or delaying of statutory entitlements.
10. The Applicant is entitled to their insurance claims under the Statutory Accident Benefits Schedule.
III. ISSUES AND ARGUMENTS
A. Whether the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
11. The Tribunal made an error of law such that the Tribunal would likely have reached a different result had the error not been made when they failed to determine, despite clear evidence to the contrary, that the Applicant’s severe psychological injury was a serious pre-existing medical condition likely to interfere with the Applicant’s maximal recovery, and thus excluded the soft-tissue injuries from the MVA from the Minor Injury Guideline. As stated in 16-000438 v The Personal Insurance Company, at para 47: the “MIG would not apply if [the Applicant] suffered from a pre-existing health condition that prevented [them] from achieving maximal recovery from [their] minor injuries.” Further, “psychological impairments which are not sequelae of a minor injury would exclude the applicant from [the MIG].” In this case, the Applicant’s psychological impairments, evidenced by repeated dizziness, poor memory, and difficulties concentrating and calculating, fit within that description, and thus exclude the Applicant from the MIG. This misclassification breaches the Applicant’s right to entitlements under the Statutory Accident Benefits Schedule.
Licence Appeal Tribunal Common Rules of Practice and Procedure, Rule 18.2(b), made pursuant to s. 25.1 Statutory Power and Procedures Act and s. 6 License Appeal Tribunal Act
Minor Injury Guideline (“MIG”), Guideline 01/14, incorporated by reference in the Statutory Accident Benefits Schedule, O Reg 34/10, and therefore binding according to s. 268.3(2.1) of the Insurance Act, RSO 1990, C I.8
16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)
Biniaz-Sarabi v Gore Mutual Insurance Company, 2023 CanLII 55985 (ON LAT)
KP v Security National Insurance Company, 2020 CanLII 80287 (ON LAT)
Edelina Sampang-Gomez v. Personal Insurance Company of Canada, 2017 ONFSCDRS 205 (CanLII)
B. Whether the the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness.
12. Defective notice is a breach of procedural fairness, and Schedule s 38(11)1 states: “If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply: 1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.” The insurer did not provide adequate notice of their determination that the Applicant’s injuries fell within the Minor Injury Guideline, since explanatory notice was provided over five (5) months after the initial OCF-1, OCF-3, and OCF-18 forms were submitted.
Licence Appeal Tribunal Common Rules of Practice and Procedure, Rule 18.2(a), made pursuant to s. 25.1 Statutory Power and Procedures Act and s. 6 License Appeal Tribunal Act
Statutory Accident Benefits Schedule, O Reg 34/10
Biniaz-Sarabi v Gore Mutual Insurance Company, 2023 CanLII 55985 (ON LAT)
MFZ v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)
C. Whether there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
13. The evidence not before the Tribunal when rendering its decision is the Tribunal’s decision itself, whose inflammatory and prejudicial language discloses a bias against mental illness, and a failure of procedural justice in allowing the neurologist report to be admitted as evidence for a psychological condition, which is not the same thing.
Licence Appeal Tribunal Common Rules of Practice and Procedure, Rule 18.2(c), made pursuant to s. 25.1 Statutory Power and Procedures Act and s. 6 License Appeal Tribunal Act
Biniaz-Sarabi v Gore Mutual Insurance Company, 2023 CanLII 55985 (ON LAT)
KP v Security National Insurance Company, 2020 CanLII 80287 (ON LAT)
D. Whether the respondent has unreasonably delayed or withheld payments.
14. By failing to give adequate notice of its decision to determine the applicant had suffered an impairment to which the Minor Injury Guideline applies, the respondent acted unreasonably in withholding or delaying payments. The Applicant is therefore entitled to special award pursuant to sections 4 and 10 of Ontario Regulation 664, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule. The Applicant is entitled to a lump sum of up to 50 per cent of the amount to which they were entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
Automobile Insurance, RRO 1990, O Reg 664
17-001627 v Certas Direct Insurance Company, 2017 CanLII 99139 (ON LAT)
E. Submissions regarding costs.
15. The Applicant requests an order for costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Common Rules of Practice and Procedure, for the failure of the Respondent to adequately respond to the allegations of defective notice, which is disrespectful of the Tribunal’s process.
Licence Appeal Tribunal Common Rules of Practice and Procedure, Rule 19.1, made pursuant to s. 25.1 Statutory Power and Procedures Act and s. 6 License Appeal Tribunal Act
16-000433 v Wawanesa Mutual Insurance Company, 2017 CanLII 9821 (ON LAT)
IV. ORDER SOUGHT
16. The Applicant requests that the adjudicator vary the decision pursuant to Rule 18.4 of the Licence Appeal Tribunal Common Rules of Practice and Procedure because the Applicant has a non-minor injury due to a severe non-consecutive pre-existing psychological condition, which the adjudicator erred in determining otherwise.
Licence Appeal Tribunal Common Rules of Practice and Procedure, Rule 18.4, made pursuant to Statutory Power and Procedures Act, s 25.1, and License Appeal Tribunal Act, s 6
17. Alternatively, the Applicant seeks allowance for reconsideration of the matter by a different adjudicator, pursuant to Rule 18.4 of the Licence Appeal Tribunal Common Rules of Practice and Procedure, and per Windsor v Aviva Insurance Company.
Licence Appeal Tribunal Common Rules of Practice and Procedure, Rule 18.4, made pursuant to Statutory Power and Procedures Act, s 25.1, and License Appeal Tribunal Act, s 6
Windsor v Aviva Insurance Company, 2022 CanLII 117090 (ON LAT)
18. The Applicant seeks their costs in the action.
Licence Appeal Tribunal Common Rules of Practice and Procedure, Rule 19.1
All of which is respectfully submitted.
TABLE OF AUTHORITIES:
STATUTES:
Insurance Act, RSO 1990, C I.8
License Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G
Statutory Power and Procedures Act, RSO 1990, c S.22
REGULATIONS, RULES & GUIDELINES:
Automobile Insurance, RRO 1990, Reg 664
Licence Appeal Tribunal Common Rules of Practice and Procedure, made pursuant to Statutory Power and Procedures Act, s 25.1, and License Appeal Tribunal Act, s 6
Minor Injury Guideline, Guideline 01/14,
Statutory Accident Benefits Schedule, O Reg 34/10
JURISPRUDENCE:
16-000433 v Wawanesa Mutual Insurance Company, 2017 CanLII 9821 (ON LAT)
16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)
17-001627 v Certas Direct Insurance Company, 2017 CanLII 99139 (ON LAT)
Biniaz-Sarabi v Gore Mutual Insurance Company, 2023 CanLII 55985 (ON LAT)
Edelina Sampang-Gomez v Personal Insurance Company of Canada, 2017 ONFSCDRS 205 (CanLII)
KP v Security National Insurance Company, 2020 CanLII 80287 (ON LAT)
MFZ v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)
Windsor v Aviva Insurance Company, 2022 CanLII 117090 (ON LAT)
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FACTUM OF THE MOVING PARTY
PART III: THE LAW
The Right to Be Tried Within a Reasonable Period of Time
1. Section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) states that any person charged with a criminal offence has the right to be tried within a reasonable period of time. The Supreme Court of Canada’s landmark decision in R v Jordan radically altered the test for calculating unreasonable delay. At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling of unreasonable delay is set at 18 months for cases going to trial in the Ontario Court of Justice and 30 months for matters proceeding to trial in the Superior Court.
R v Jordan, 2016 SCC 27 at para 46 (“Jordan”)
Charter of Rights and Freedoms, s 11(b), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
2. This case will be heard in the Court of Justice on July 11, 2023, with an estimated end date of July 20, 2023, which is a 22-month delay in the proceedings.
3. This delay has violated Steve Rogers’ right to a trial without undue delay under Section 11(b) of the Charter.
Charter of Rights and Freedoms, s 11(b), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
The R v Jordan Framework
4. The R v Jordan test is used to determine whether there is an unreasonable delay. The delay period begins with the laying of charges and ends with the conclusion of the trial. The first charge was laid on June 3, 2021, and the conclusion of trial was estimated to be July 20, 2023.
R v Jordan, 2016 SCC 27 at para 46
5. The total delay in this case is 25.5 months; however, 189 days of that time may be attributable to the defence. Therefore, the net and remaining delay outside the control of the defence is 19.3 months.
6. The presumptive ceiling for summary criminal matters in the Court of Justice is 18 months. Delays that exceed the presumptive ceiling are deemed unreasonable, unless they are the result of exceptional circumstances beyond the Crown's control that were reasonably unforeseen or unavoidable.
R v Jordan, 2016 SCC 27 at para 105
The Effect of the Delay
7. An excessive delay will weaken the defence’s ability to present a fair case. Details may be forgotten by witnesses, leading to unreliable testimony and the inability to lead crucial evidence. This will prejudice the defence’s ability to give full answer and defence to the Crown’s case.
R v Jordan, 2016 SCC 27 at para 20
The Presumptive Ceiling
8. Following the laying of charges on June 3, 2021, the defence appeared in court promptly. The defence counsel has demonstrated a committed effort to the proceedings, by attending court appearances promptly and cooperating with the Crown in seeking reasonable adjournments to review disclosure and schedule pre-trial conferences.
R v Jordan, 2016 SCC 27 at para 99
9. The case has been delayed significantly above the presumptive ceiling established in Jordan. The delay of 19.3 months exceeds the 18-month presumptive ceiling for matters proceeding to trial in the Court of Justice.
R v Jordan, 2016 SCC 27 at para 105
No Exceptional Circumstances
10. The assessment of delay under section 11(b) of the Charter takes into account the possibility of exceptional circumstances. It provides a framework for determining whether delays that exceed the presumptive ceiling are justified and reasonable under specific conditions. Exceptional circumstances are defined as unforeseen, unavoidable, and truly beyond the control of the Crown, the defence, or the justice system.
R v Jordan, 2016 SCC 27 at para 69-71
11. It is not relevant whether the delays are a result of Crown inaction or the result of routine institutional challenges or delays.
R v Jordan, 2016 SCC 27 at para 105
12. The delay is not due to inefficiencies in administration or a lack of effort on the part of the defence, but rather due to the Crown's failure to provide outstanding disclosure.
Failure to Provide Adequate Disclosure
13. The notes of police officers are critical to the defense's ability to prepare for trial. These notes that were not disclosed in a timely manner may contain critical information that will have a significant impact on Steve Rogers' ability to provide a complete answer and defence.
R v Jordan, 2016 SCC 27 at para 65
14. Full disclosure by the Crown was not provided. The Crown offered no substantial explanation for the delay in providing the notes.
Conclusion
16. The delay has infringed Steve Rogers' right to a fair trial within a reasonable period of time, as guaranteed by Section 11(b) of the Charter; therefore, the application should be granted.
Charter of Rights and Freedoms, s 11(b), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
17. The delay period in this case is 19.3 months, counted from Steve Rogers' first appearance on July 15, 2021, until the scheduled trial conclusion of July 20, 2023, which exceeds the 18-month reasonable period established in the Jordan framework and confirmed recently in R v Fodor. The defence has made a sustained effort to expedite the proceedings and cooperate with the Crown and the court. The Crown has not demonstrated exceptional circumstances which would justify the delay.
R v Jordan, 2016 SCC 27 at para 111
R v Fodor, 2023 ONCJ 315 at para 3
18. The Crown must demonstrate that it could not reasonably have mitigated the delay.
R v Fodor, 2023 ONCJ 315 at para 3
19. The appropriate remedy is to stay the proceedings, given (1) the inherent prejudice to the defence from their inability to give full answer and defence without full disclosure from the Crown, and (2) the common law standard of an 18-month presumptive ceiling for delay regardless of actual prejudice.
R v Jordan, 2016 SCC 27 at para 20
SCHEDULE A
1. There has been a delay in the trial beyond the presumptive ceiling of 18 months for cases in the Ontario Court of Justice, as determined by the test set out in R v Jordan, 2016 SCC 27 (“Jordan”).
2. The Total delay in this case is 777 days, or 25.5 months.
3. Only 189 days, or 6.2 months, is attributable to delays caused by the defence.
4. The Net delay within the control of the Crown is 588 days, or 19.3 months.
5. 19.3 months is above the presumptive ceiling of 18 months established in Jordan.
6. There are no exceptional circumstances that exist which the Crown could put forward.
7. The Remaining delay is therefore unreasonable, pursuant to the Jordan test and section 11(b) of the Charter of Rights and Freedoms.
TIMELINE OF DELAYS (not within control of the defence unless otherwise stated)
June 3, 2021 - July 15, 2021 (42 days) - time between laying of charges and first appearance
July 15, 2021 - September 15, 2021 (52 days) - time for the Crown to vet the “Information to Obtain Search Warrant” and provide necessary disclosure
September 5, 2021 - November 8, 2021 (64 days) - time for defence to review disclosure and schedule a pre-trial conference
November 8, 2021 - February 6, 2022 (90 days) - adjournment due to defence not reviewing disclosure nor scheduling a pre-trial conference (within control of the defence)
February 6, 2022 - March 9, 2022 (31 days) - adjournment to schedule a judicial pre-trial
March 9, 2022 - April 6, 2022 (28 days) - clerical error in judicial pre-trial scheduling; no judge available for pre-trial meeting
April 6, 2022 - June 26, 2022 (81 days) - defence awaiting outstanding disclosure from Crown
June 26, 2022 - July 10, 2022 (14 days) - defence still awaiting outstanding disclosure from Crown
July 10, 2022 - September 7, 2022 (59 days) - Crown moved for adjournment for judicial pre-trial to resolve outstanding disclosure requirements
September 7, 2022 - July 20, 2023 (316 days) - lapse between judicial pre-trial and estimated trial ending date. Of this period, 99 days may be attributable to the defence due to representative not being available for earlier trial dates offered.
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CASE BRIEF:
Re: Harvey v Capital One Bank, 2019 CanLII 69716
Facts:
Shaun Harvey (“Plaintiff”) sued Capital One Bank (“Defendant”) in Small Claims Court. Plaintiff submitted that it was defamation for Defendant to report default of Plaintiff’s debt to the credit bureau. Plaintiff did not dispute the facts of the default, submitting instead that the Limitations Act 2002 (SO 2002, c. 24, Sch. B) had extinguished his debt after two years, and the right to claim the debt was extinguished once no remedy was available.
Issues in Dispute / Ratio:
Defendant was not asserting a right to remedy, only exercising a right to report the default. The precedent claimed by Plaintiff, Markevich v Canada, is distinguished because it relates to debt collection, not default reporting.
Secondly, the defamation test (per Grant et al v Torstar et al and Rutman v Rabinowitz) is not met. Although the statements referred to Plaintiff and were published, they were not defamatory (i.e. damaging the reputation of Plaintiff). The statements about the default were agreed by both parties to be true, and therefore justified. No actual damages were pleaded. Defendant had statutory authority to make the statements, under the Consumer Reporting Act (RSO 1990, c. C.33, s. 9(3)), for seven years after the default date (per Grant v Equifax et al).
Finally, Ontario statutes and case law establish that a limitation period only extinguishes a remedy for a debt, not a right to a debt or default reporting. If the Ontario Limitations Act was meant to apply to the Consumer Reporting Act, it would have expressly stated; it does not. Thus, the limitation period is a procedural bar to commencing legal proceedings, not to statutory default reportage; it does not deprive substantive rights (per Re Temple and Re Edwards).
Disposition:
The case was dismissed, and maximum costs awarded to Defendant due to Plaintiff’s rejection of a reasonable settlement offer.
Precedents & Distinguished Cases:
Markevich v Canada, 2003 SCC 9 - (D)
Grant v Equifax et al, 2015 ONSC 6745
Grant et al v Torstar et al, 2009 SCC 61
Rutman v Rabinowitz, 2018 ONCA 80
Re: Temple, 2012 ONSC 376
Re: Edwards, 2010 ONSC 5718
Aucoin v Murray, 2013 NSSC 37 - (D)
Tolofson v Jensen, 1992 CanLII 931 (BCCA) - (D)