Top 5 Civil Appeals From The Court Of Appeal (January 2015)

The Court of Appeal, as always, finished 2014 with a flourish, releasing several important decisions. This month's netletter summarizes decisions dealing with the justiciability of a Charter claim regarding homelessness, how broadly contractual indemnities for personal injury should be interpreted, whether the non-consensual disclosure of a mortgage discharge statement breeches PIPEDA, the standard of a municipality's duty to repair roads and, in particular, whether there is a distinct standard for "rural drivers" and the extent to which absolute privilege applies to a defamation action against a Law Society investigator.

1. Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 (Feldman, Strathy and Pardu JJ.A.), December 1, 2014

2. Neely v. MacDonald, 2014 ONCA 874 (Blair, Pepall and Lauwers JJ.A.), December 8, 2014

3. Royal Bank of Canada v. Trang, 2014 ONCA 883 (Hoy A.C.J.O., Laskin, Sharpe, Cronk and Blair JJ.A.), December 9, 2014

4. Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 (Laskin, Rouleau and Lauwers JJ.A.), December 11, 2014

5. D'Mello v. The Law Society of Upper Canada, 2014 ONCA 912 (Weiler, Feldman and Benotto JJ.A.), December 22, 2014

1. Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 (Feldman, Strathy and Pardu JJ.A.), December 1, 2014

   In this case, the Court of Appeal considered the justiciability of a novel claim under the Canadian Charter of Rights and Freedoms.

   The appellants, four individuals suffering from homelessness and inadequate housing, and The Centre for Equality Rights in Accommodation, a non-profit organization dedicated to human rights in housing, brought an application for relief under the Charter. They alleged that actions and inaction on the part of the governments of Canada and Ontario had "created and sustained conditions which lead to, support and sustain homelessness and inadequate housing", in violation of s. 7 and s. 15.

   The appellants did not challenge any particular legislation or policy, but rather submitted that the federal and provincial governments' approach to housing - ranging from cancelling funding for the construction of new social housing to failing to implement a rent supplement program - have created social conditions which violate their rights to adequate housing. They claimed a wide range of remedies, including a declaration that Canada and Ontario have obligations pursuant to s. 7 and s. 15 of the Charter to implement effective strategies to reduce and ultimately eliminate homelessness and inadequate housing, and an order that the federal and provincial governments meet these obligations.

   The motion judge struck the application, without leave to amend, finding that it was plain and obvious that the application did not disclose a viable cause of action and that it had no reasonable prospect of success. He also found that the issues raised by the application were not justiciable and that the implementation of the relief sought would "cross institutional boundaries", encroaching on legislative territory.

   Writing for the Court of Appeal, Pardu J.A. agreed with the motion judge that the appellants' claim was not justiciable. The Supreme Court emphasized in Canada (Auditor-General) v. Canada (Minister of Energy, Mines & Resources), [1989] 2 S.C.R. 49, that "[a]n inquiry into justiciability is, first and foremost, a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue, or instead deferring to other decision making institutions of the polity." This application, which Pardu J.A. characterized as essentially an assertion that the governments of Canada and Ontario have failed to give sufficient priority to issues of affordable housing and homelessness, was not an appropriate matter for the courts.

   Pardu J.A. noted that an "archetypal feature" of Charter challenges under s. 7 and s. 15 is the challenge to a particular law or particular application of a law. As the Supreme Court held in Re Canada Assistance Plan, [1991] 2 S.C.R. 525, "the Court must determine whether the question is purely political in nature, and should therefore be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch." In this case, unlike in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, where a specific state action was challenged, and in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, where a specific law was challenged, the appellants challenged no particular legislation or policy, and there was therefore no sufficient legal component to engage the courts.

   Pardu J.A. acknowledged that constitutional violations caused by a network of government programs can be addressed, particularly when the issue may otherwise be evasive of review. She found, however, that several factors rendered this application unsuitable for Charter scrutiny. Notably, the assertion that s. 7 confers a general freestanding right to adequate housing is "a doubtful proposition". Moreover, the "diffuse and broad nature" of the claims does not permit a s. 1 analysis. A court simply cannot apply the Oakes test where no particular law is at issue.

   Pardu J.A. finally noted that questions of whether housing policy is adequate and whether sufficient priority has been given to the needs of the homeless cannot be resolved by application of law. Issues of broad economic policy and priorities engage the accountability of legislatures and are unsuited to judicial review. Pardu J.A. concluded that the application is "demonstrably unsuitable for adjudication", effectively asking the court to abandon its decision-making function and instead "embark on a course more resembling a public inquiry into the adequacy of housing policy", well beyond its institutional capacity.

   Feldman J.A. dissented, arguing that it was an error to strike the application at the pleadings stage as it raised significant issues of public importance...