Ontario’s Court of Appeal ruled in Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2019 ONCA 648 that ‘GotSkill’ is illegal under Ontario’s gaming, alcohol and racing legislation. The Alcohol and Gaming Commission of Ontario operates under provincial law controlling the grant of both liquor and gaming licences. The Commission submitted an application on appeal, arguing ‘GotSkill’ was a game of chance or mixed chance and skill, not simply skill. As a game of chance or mixed skill and chance, the regulation of ‘GotSkill’ would fall under the jurisdiction of the Commission. The Appeal Court overturned the lower court’s decision and ruled ‘GotSkill’ was a game of ‘mixed chance and skill’ and was therefore prohibited in unlicensed premises; forcing over 200 licensees to remove ‘GotSkill’ from their premises. The Court heard submissions on whether ‘GotSkill’ was a ‘game of chance’ or a ‘game of skill’ … Read More
Cart Before the Horse – Requesting Accommodations to Condominium Common Elements Before Commencing Litigation
In Charlie Andrews v. Great Gulf, 2019 HRTO 370, the applicant, a condominium owner, alleges that the respondent, builder of the condominium complex, failed to provide gender-inclusive washrooms in the pool and stream areas of the condominium building. The builder of the condominium complex did not file a response, but rather, asked that the matter be dismissed as it had no prospect of success, as the builder could not be held liable for the alleged discrimination, since: It no longer had an ongoing service relationship with the condominium; The applicant, as a condominium board member could not point to any requests by any individual, including themselves, that the builder or condominium provide gender-inclusive change rooms; The subject areas that were allegedly discriminatory were located in the common elements of the condominium and related to accessibility, rendering it the responsibility of the condominium, of which the applicant was a member; and At the time the … Read More
Ontario Health Professions College Complaints: Some Do’s and Don’ts
The dreaded day has suddenly come, and your professional college informs you that a patient or someone you assessed months ago for an auto insurance claim has lodged a frivolous complaint under the Regulated Health Professions Act. (“Act”) (The college won’t use the word “frivolous,” of course.) Draw a deep breath and banish any thoughts of making an angry response. Instead, consider the Japanese martial art of Jujitsu , where one’s strongest weapon is the ability channel the force of one’s opponent against him. Under schedule 2 of the Act, named the Health Professions Procedural Code (“Code”), every health profession college in Ontario maintains an Inquiries, Complaints and Reports Committee (ICRC) to investigate and vet complaints against members. It does not matter whether you are a doctor, a psychologist or an occupational therapist. The Code requires each college to follow the same general procedure. While it may seem that this … Read More
When May an Academic Complaint be Brought to Court? Clarification from the Ontario Court of Appeal
In Lam v University of Western Ontario, 2019 ONCA 82, the Ontario Court of Appeal reiterated that courts have jurisdiction over claims for damages for breach of contract and tort even when the claims arose out of an academic dispute. Judicial History After commencement of the action by the student, the university brought a motion for summary judgment. The principal basis for the motion was that the student’s claim related to the university’s decisions about teaching, mentoring, supervising and administering its Ph.D. program and therefore to matters that are “purely academic in nature” [para 22]. The motion judge granted summary judgment dismissing the action. The motion judge held that academic issues must be distinguished from legal issues when reviewing a university’s conduct, and that academic issues are to be resolved by the university’s internal process, subject to judicial review [para 23]. In reversing the motion judge’s decision, the Court of … Read More
Determining a “Series of Incidents” under Ontario’s Human Rights Code
The recent decision in Martin v Trinity United Church, 2019 HRTO 726 highlights limitation periods and the applicable factors to determine what constitutes a “series of incidents” under Ontario’s Human Rights Code (“Code”). Limitation Period under Ontario’s Code Section 34 of the Code provides that a person who believes that his or her rights under Part I of the Code have been infringed must apply to the Tribunal: (a) Within one year after the incident to which the application relates; or (b) If there was a series of incidents, within one year after the last incident in the series. Late applications are allowed if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. Determining a “Series of Incidents” In order to establish that discrimination constituted a “series of incidents,” there must be a connection … Read More
Are Section 44 Exam Reports under SABS Subject to PIPEDA Disclosure?
To date, the Ontario personal injury bar has assumed that assessors and “IME” companies performing examinations under s. 44 of the Statutory Accident Benefits Schedule (SABS) are subject to access requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA). The “leading case” on IME’s and PIPEDA, Wyndowe v. Rousseau, a decision of the Federal Court of Appeal, held that a doctor appointed to perform an independent medical examination under a disability insurance policy had to provide access to a final report and notes. The disability insurer’s internal process under the private insurance policy would not have been a formal dispute resolution process and therefore not exempt from PIPEDA. Under clause 9(3)(d) of PIPEDA, an organization is not required to give access to personal information if it was “generated in the course of a formal dispute resolution process.” Is a s. 44 examination subject to that exemption? The federal Office of the Privacy … Read More
Discrimination under Ontario’s Human Rights Code is Restricted to Enumerated Grounds: A Reminder in Stukanov v Paypal Canada Inc.
A recent decision of the Human Rights Tribunal of Ontario (“HRTO”) serves as a reminder that grounds for discrimination under Ontario’s Human Rights Code (“Code”) are restricted to those enumerated in the Code. Analogous grounds are not prohibited. In Stukanov v Paypal Canada Inc., 2019 HRTO 386, the HRTO dismissed an application alleging that Paypal discriminated against Canadian residents. Facts The applicant wanted to close his U.S. dollar account with Paypal and have the account money sent to him in U.S. dollars, either by cheque or by direct deposit into his U.S. dollar account at his Toronto bank. Paypal, apparently, would not send a cheque to Canada, and would only deposit money into a Canadian dollar account when sending money to a bank located in Canada. The applicant’s primary allegation was that he cannot receive his Paypal funds in U.S. dollars because he is a Canadian resident. He claimed that … Read More
The Ontario Securities Commission and the “Active Market”
Determining what constitutes an “active market” for securities can have significant implications for Investment Dealers, Approved Persons, and other market participants facing civil lawsuits and regulatory scrutiny. Such a determination provides ample assistance to investors seeking to quantify damages allegedly sustained through (1) misrepresentations in a company’s financial documents or (2) the negligence of their financial advisors. In Sutton (re), 2018 ONSEC 42, however, the failure to show an active market for securities proved devastating to the defence of a Chief Financial Officer (“CFO”) in charge of pricing those securities. Background As CFO of First Leaside Securities Inc. (“FLSI”), Brian Sutton’s (“Mr. Sutton”) position required him to assess the price of certain unlisted securities (“Fund Units”) issued by three limited partnerships (“Funds”). In pursuit of meeting these obligations, Mr. Sutton relied on the Fund Units’ allegedly active market to ascribe an appropriate price. The Industry Investment Regulatory Organization of Canada (“IIROC”) … Read More
An Uber Quick Ride in Oshawa (City) v Greaves
What is the definition of a taxi ride? A version of this question recently arrived at the Ontario Court of Justice in Oshawa (City) v Greaves. An Oshawa by-law makes it illegal to operate a taxicab without a valid license. Last year, as part of a project concerning unlicensed taxicabs, a municipal by-law officer ordered an Uber in Oshawa. When the Uber arrived at the requested location, the driver found himself collecting a by-law infraction charge instead of a waiting passenger. On appeal before the Ontario Court of Justice, counsel for the driver argued that the driver did not illegally operate a taxicab because no taxi ride occurred. Nonetheless, the Court upheld the by-law charge. The Court relied on the standard approach to statutory interpretation, which reads a statute by its “grammatical and ordinary sense” in light of the broader objectives and intentions of the legislation. Central to the Court’s … Read More
Federal Court of Appeal Considers Reviewing of Evidence in Judicial Review Applications
In judicial review applications, like most legal proceedings, evidence plays an essential role in securing a successful result. This includes not just the quality of the evidence, but the process through which the court considers that evidence. The Federal Court of Appeal’s recent decision in Apotex Inc. v. Canada (Health), 2018 FCA 147 (“Apotex”) affirms the control accorded to judges when reviewing evidence in judicial review applications.
Court of Appeal Considers Ontario Labour Relations Board’s Jurisdiction, Limitation Periods in Class Actions
In United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (“Quality Meat Packers”), the Ontario Court of Appeal considered (1) the Ontario Labour Relations Board’s (“OLRB”) jurisdiction to decide claims related to the wrongful dismissal of unionized employees; and (2) whether, in proposed representative proceedings under Rules 12.08 and 10.01, representation orders must be obtained during the limitation periods for the individuals’ claims.
Ontario Securities Commission Clarifies Test for Severance Motions
In Hutchinson (Re), 2018 ONSEC 40 (“Hutchinson”), the Ontario Securities Commission (“OSC”) considered the proper framework to assess a motion for severance in the context of a regulatory proceeding before the OSC. OSC Staff alleged that the respondent, David Paul George Sidders (“Sidders”), engaged in insider trading with respect to three transactions. The OSC also alleged that three other individual respondents, one of which settled, engaged in insider trading and/or insider tipping. Respondent Sidders moved before an OSC Commissioner (“Commissioner”) to request that it sever his hearing from the hearings of the other remaining respondents. The question before the Commissioner was how to assess, in the context of an OSC proceeding, whether the interests of justice require severance. The Supreme Court of Canada in R v. Last, 2009 SCC 45 (“Last”) listed several factors to consider when balancing the risk of prejudice to the accused with the public interest in … Read More