Court Of Appeal Summaries (August 2-6)

• Published date: 10 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Please find below our summaries of the civil decisions of the Court of Appeal for the week of August 2, 2021.

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In Canadian Federation of Students v. Ontario (Colleges and Universities), the Court of Appeal held that the Minister of Training, Colleges and Universities could not force colleges and universities to make student association fees optional through its executive authority and prerogative spending power. The Court held that the Ontario Colleges of Applied Art and Technology Act and the many University Acts prevented such a mandate without first amending the governing legislation.

Other topics covered included family law (relocation and variation of support), assault and other tort claims by children against their father, and extensions of time to appeal.

Have a nice weekend.

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Table of Contents

Civil Decisions

Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553

Keywords: Constitutional law, Executive Authority, Prerogative Power, Spending, Statutory Interpretation Justiciability, Education, Colleges and Universities, Ancillary Fees, Student Associations, Funding, Ontario Colleges of Applied Arts and Technology Act, S.O. 2002, c. 8, Sched. F, s.4, s.5, s.7, s.8, Algoma University Act, 2008, s.5, s.8, s.15, s.17(1), s.18, s.24, s.32, The University of Toronto Act, S.O. 1906, c. 55, niversity of Ottawa Act, 1965, s.8, Longuee?pe?e v. University of Waterloo, 2020 ONCA 830, Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, Housen v. Nikolaisen, 2002 SCC 33, Apotex Inc. v. Canada (Health), 2018 FCA 147, Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228 (Ont. C.A.), Canada (Prime Minister) v. Khadr, 2010 SCC 3, Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Walsh, 2021 ONCA 43, R. v. Mohan, [1994] 2 S.C.R. 9, Ross River Dena Council Band v. Canada, 2002 SCC 54, Attorney General v. De Keyser's Royal Hotel, [1920] A.C. 509 (H.L.), Ball v. McAulay, 2020 ONCA 481, Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225, Newman and Regimbald, The Law of the Canadian Constitution, 2nd ed. (Toronto: LexisNexis, 2017), Hogg, Constitutional Law of Canada, loose-leaf (2009-Rel. 1), Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan and Co., 1915)

D.C. v. T.B., 2021 ONCA 562

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Extension of Time, Best Interests of the Child, Stay Pending Appeal, Rules of Civil Procedure, Rule 3.02, Denomme v. McArthur, 2013 ONCA 694, K.K. v. M.M., 2021 ONCA 407, Lefebvre v. Lefebvre, 167 O.A.C. 85 (C.A.), Bors v. Bors, 2021 ONCA 513

O'Brien v. Chuluunbaatar, 2021 ONCA 555

Keywords: Family Law, Custody and Access, Relocation, Children's Law Reform Act, R.S.O. 1990, c. C.12, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Van de Perre v. Edwards, 2001 SCC 60, Reeves v. Brand, 2018 ONCA 263, Gordon v. Goertz, [1996] 2 S.C.R. 27

Dreesen v. Dreesen, 2021 ONCA 557

Keywords: Family Law, Child Support, Spousal Support, Variation, Material Change in Circumstances, Federal Child Support Guidelines, S.O.R./97-175 ("CSG"), Colucci v. Colucci, 2021 SCC 24, Mason v. Mason, 2016 ONCA 725, Bravo v. Pohl (2008), 62 R.F.L. (6th) 209 (Ont. S.C.), Koester v. Koester (2003), 50 R.F.L. (5th) 78 (Ont. S.C.)

Calin v. Calin, 2021 ONCA 558

Keywords: Torts, Negligence, Assault, Battery, Intentional Infliction of Mental Distress, Wrongful Imprisonment, Breach of Fiduciary Duty, Causation, Damages, F.H. v. McDougall, 2008 SCC 53, Salomon v. Matte-Thompson, 2019 SCC 14, Housen v. Nikolaisen, 2002 SCC 33, R. v. G.F., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R. v. A.M., 2014 ONCA 769, R. v. Gagnon, 2006 SCC 17, R. v. Slatter, 2019 ONCA 807, R. v. Sanichar, 2012 ONCA 117, R. v. N.K., 2021 ONCA 13, R. v. A.K., 2018 ONCA 567, Benhaim v. St-Germain, 2016 SCC 48, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Armstrong v. Moore, 2020 ONCA 49

Kudrocova v. Kronberger , 2021 ONCA 563

Keywords: Civil Procedure, Appeals, Perfection, Dismissal for Delay, Setting Aside, Family Law, Custody and Access, Paulsson v. University of Illinois, 2010 ONCA 21, Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, Van de Perre v. Edwards, [2001] 2 S.C.R. 1014

Short Civil Decisions

Boudreau v. Jakobsen , 2021 ONCA 556

Keywords: Costs

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CIVIL DECISIONS

Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553

[Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A]

Counsel:

S.S. Mathai, A. Sinnadurai, and C. Bourrier, for the Appellant
M. Wrgiht, L. Century, and G. Philipupillai, for the Respondents
E. Krajewska, T. Markin, and M. Chowdhury, for the Intervener University of Toronto Graduate Students' Union
P. Tunley, for the Intervener Canadian Journalists for Free Expression, the Ryerson Centre for Free Expression, the Canadian Association of Journalists, PEN Canada, World Press Freedom Canada, and the Canadian Association of University Teachers
D. Kastner and V. Vaitheeswaran, for the Intervener the Association for Canadian Clinical Legal Education
R.A. Centa and L. Pearce, for the Intervener University of Ottawa, Queen's University at Kingston, Governing Council of the University of Toronto, University of Waterloo, and University of Western Ontario'
P. Hrick and D. Rakic, for the Intervener Start Proud and Guelph Queer Equality

Keywords: Constitutional law, Executive Authority, Prerogative Power, Spending, Statutory Interpretation Justiciability, Education, Colleges and Universities, Ancillary Fees, Student Associations, Funding, Ontario Colleges of Applied Arts and Technology Act, S.O. 2002, c. 8, Sched. F, s.4, s.5, s.7, s.8, Algoma University Act, 2008, s.5, s.8, s.15, s.17(1), s.18, s.24, s.32, The University of Toronto Act, S.O. 1906, c. 55, niversity of Ottawa Act, 1965, s.8, Longuee?pe?e v. University of Waterloo, 2020 ONCA 830, Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, Housen v. Nikolaisen, 2002 SCC 33, Apotex Inc. v. Canada (Health), 2018 FCA 147, Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228 (Ont. C.A.), Canada (Prime Minister) v. Khadr, 2010 SCC 3, Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Walsh, 2021 ONCA 43, R. v. Mohan, [1994] 2 S.C.R. 9, Ross River Dena Council Band v. Canada, 2002 SCC 54, Attorney General v. De Keyser's Royal Hotel, [1920] A.C. 509 (H.L.), Ball v. McAulay, 2020 ONCA 481, Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225, Newman and Regimbald, The Law of the Canadian Constitution, 2nd ed. (Toronto: LexisNexis, 2017), Hogg, Constitutional Law of Canada, loose-leaf (2009-Rel. 1), Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan and Co., 1915)

facts:

Colleges are established pursuant to the Ontario Colleges of Applied Arts and Technology Act ("OCAATA") and operate as highly controlled agents of the Crown. Universities are established by separate University Acts and operate independently and in accordance with its statutorily mandated governance structure. Both colleges and universities are funded, in part, through grants made by the Minister of Training, Colleges and Universities.
Students at these institutions pay compulsory ancillary fees in addition to tuition fees. Some of these ancillary fees are used to fund student associations. The Appellant Minister, to reduce tuition fees, established a framework governing ancillary fees. The framework differentiated between essential and non-essential services and made the fees for student associations optional. Compliance was enforced via a threat to reduce college and university operating grants.
The Respondents brought an application for judicial review to quash the framework. They argued that it was inconsistent with the statutory schemes regulating colleges and universities, was made for an improper purpose and in bad faith and was made in breach of procedural fairness.
The Divisional Court rejected the Appellant's argument that the application was non-justiciable. The court characterized the framework as a decision made pursuant to the Crown's powers to spend, which it...