Articles

The question at the heart of this article is whether the appropriate standard of care in negligence related to the maintenance and use of police databases by law enforcement and other related agencies should be interpreted in light of the Charter value of equality. In the authors’ view, the standard of care in negligence cases against law enforcement has been a relatively low bar and has been informed by law enforcement policies. The authors take the position this is true of cases involving police databases as well. Recently, the Supreme Court of Canada and the Ontario Court of Appeal have recognized that the over-policing of minorities violates the equality guarantees in s. 15 of the Charter. In the authors’ view, the data stored in police databases reflects the reality of this discriminatory over-policing. Put differently, the authors take the position that over-policing results in the over-representation of racial minorities in police databases. Given the underlying constitutional violations associated with over-policing, it is the authors’ position that cases involving the negligent maintenance or use of such databases engage the Charter value of equality. Charter rights are conceptually distinct from Charter values, but Charter values nevertheless underpin each Charter right and give it meaning. Charter values can apply even where a Charter right is not engaged. Tort law has long been developed in light of Charter values. In the authors’ view, the tort of negligence should be similarly developed. Specifically, when formulating and applying the standard of care in relation to the maintenance and use of police databases, courts should appropriately scrutinize existing policies and procedures, including any discriminatory impact of seemingly neutral policies.

Every four years marks a new provincial election cycle in Ontario. Each cycle, registered political parties are forced to contend with how, and through what mediums, they will drive Ontarians to the polls and communicate their political messaging. These considerations are increasingly important as advertisement media shifts and Ontarians’ central concerns evolve from cycle to cycle. This is not a concern for registered political parties alone, however. Third parties are also engaged in political advertising, albeit the extent of that advertisement during the 12 months before a provincial election writ period differs than that for registered political parties. In Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5 (“Working Families”), the Supreme Court of Canada explored the constitutionality of this differentiation.

The notwithstanding clause, s. 33 of the Canadian Charter of Rights and Freedoms, is a constitutional provision that plays a significant role in some of Canada’s most recent controversial legal issues. In December, the Ontario Bar Association gathered legal, policy, and political experts to discuss its use. The event featured a full day of engaging conversations and critical analysis. The day began with a historical overview of the Charter and the origins of the notwithstanding clause, delivered by Dr. Thomas Axworthy. The later panel discussions explored key trends in its use to date, as well as perspectives on the pros and cons of invoking the notwithstanding clause in the future.

In Purolator Inc. v. John Doe et al., 2024 ONSC 6812, the Ontario Superior Court of Justice upheld an ex parte injunction, rather than a labour injunction, preventing Canadian Union of Postal Workers (CUPW) members from picketing outside of a Purolator facility in Toronto.

This article summarizes three recent cases concerning the legality of encampments, beginning with the landmark decision in Regional Municipality of Waterloo v Persons Unknown and to be Ascertained,  and concluding with its application to The Corporation of the City of Kingston v Doe  and Heegsma v Hamilton (City). Taken together, these cases suggest that until there are policies to robustly address homelessness, unhoused Ontarians are increasingly turning to s.7 Charter litigation to advocate for their right to shelter, including in encampments.  

The opioid epidemic has had devastating effects across Canada, prompting legal action aimed at holding responsible parties accountable. One such case, Sanis Health Inc v British Columbia, 2024 SCC 40 (“Sanis”), addressed a legal issue involving intergovernmental cooperation and the limits of provincial authority with respect to an opioid class action.

Bill 166, also called the Strengthening Accountability and Student Supports Act, 2024, proposes to amend the Ministry of Training, Colleges and Universities Act to require every Ontario college and university to have a student mental health policy setting out what services, programs, policies and supports are available for student mental health, as well as policies and rules to address and combat racism and hate, including antisemitism, anti-Black racism, anti-Indigenous racism and Islamophobia.

On March 13, 2024, the Ontario Divisional Court released its long-awaited decision in London District Catholic School Board v. Weilgosh, 2023 ONSC 3857 (“Weilgosh”). The decision confirms that the Human Rights Tribunal of Ontario (the “Tribunal”) and labour arbitrators share concurrent jurisdiction over human rights complaints arising from a provincially regulated collective agreement.

The International Day of Persons with Disabilities serves as a potent reminder of disability inclusion every year, but workplace inclusion for people with disabilities remains as bleak as ever. Lorin MacDonald provides ten tips for disability allies to advance the agenda of workplace inclusion and accessibility.

Samantha Peters interviews Nikisha Thapar, a third-year law student at Western University Faculty of Law, about the OHRC's decision to recognize Caste-Based Discrimination.

Section Vice-Chair, Lorin MacDonald advocates for mandatory human rights education for the legal profession in Canadian Lawyer Magazine. Read an excerpt here.

Whether to participate in MAID is a profound and complex ethical question—a question on which the B.C. Supreme Court recognized that “thoughtful and well-motivated people can and have come to different conclusions.” In a country that cherishes diversity and dignity for all, we must support diverse communities of care and, in turn, better options and outcomes for all patients - many of whom seek, and deserve better access to, medical assistance in living.

The Ontario Superior Court of Justice recently released Mathur v. Ontario, a landmark climate litigation decision. The seven applicants (between the ages of 15 and 27), sought declarations of constitutional invalidity related to Ontario’s legislated greenhouse gas emissions reduction target. The court expressed sympathy for the applicants’ environmental concerns but concluded that based on “the current state of the law” it could not find Charter violations in the circumstances before it.

There is a proliferation of news reports of people with disabilities considering medical assistance in dying (MAiD). As a human rights lawyer, a disability advocate, and a woman born with a disability, I find these trends troubling. I believe MAiD is the outcome of Hobson’s choice, which refers to the illusion that multiple options are available. In a “take it or leave it” scenario, “leaving it” is no longer tenable for many Canadians with disabilities, given today’s climate.

This detailed case summary reviews the Ontario Court of Appeal's decision in Elementary Teachers Federation of Ontario v. York Region District School Board. In this groundbreaking decision, the Court of Appeal held that section 8 of the Charter applies to the actions of principals conducting workplace investigations. Further, the Court found that the Board’s investigation violated the teachers’ reasonable expectation of privacy and constituted an unreasonable search under section 8.

The new Canadian Association of Lawyers with Disabilities aims for better inclusion.

The author explains why, in his view, Canada is overdue for a robust public debate about the circumstances in which using the notwithstanding clause is legitimate.

Discussing the recent and forthcoming measures on modern slavery in Canada, including: the impact of the Canadian-United States-Mexico Agreement (“CUSMA”); Prime Minister Justin Trudeau’s mandate letter to Canada’s Minister of Labour; and the development and status of Canada’s modern slavery legislation.

Exploring the decision in Gladue and its applicability to Section 7 of the Charter.

The 20th Annual Charter of Rights and Freedoms Conference hosted by the Constitutional Civil Liberties and Human Rights (“CCLHR”) Section of the Ontario Bar Association (“OBA”) took place on October 5, 2021 via webcast. This article summarizes the Conference’s Year in Review presentation, the four panel discussions, and the Keynote Address.

In the context of third-party political advertising restrictions, Melanie Zetusian provides an in-depth analysis of the ONSC decision in Working Families Ontario v. Ontario, where the Applicants challenged the constitutionality of the amendments made by the Ontario legislature via the Protecting Ontario Elections Act, 2021.

A Welcome Message from Andrew Sprague, the chair of the Constitutional, Civil Liberties and Human Rights (CCLHR) Law Section of the OBA. An insightful message which details his passion for the CCLHR, the goals of the CCLHR Executive Team and a detailed account of upcoming events and initiatives in the 2021-2022 season.

In the context of Canada's snap Federal Election, this opinion piece by Professor Mendes proposes democratic constraints on the use of the notwithstanding provisions in Section 33 of the Canadian Charter of Rights and Freedom.

The recent Order, which imposed a hotel quarantine requirement for travellers returning to Canada by air, has been tested in two recent decisions. The Superior Court of Justice and Federal Court of Canada each considered the constitutionality of the new measures to prevent the spread of Covid-19: Canadian Constitution Foundation v Canada (AG) (“CCF”), and Spencer v Canada (AG) (“Spencer”). Injunctive relief was refused in both decisions. This note summarizes and compares CCF and Spencer.

Despite evictions moratoria and the earlier suspension of LTB proceedings, observers have noted a sharp rise of homelessness and the proliferation of encampments in parks since the pandemic began. This article outlines some of the changes and issues that Bill 184 has had on the eviction process at the LTB, and in particular, the effect it has had on racialized and marginalized communities in the City of Toronto.

In its December 23, 2020 decision in Hudson’s Bay Company ULC v. Ontario (Attorney General), the Ontario Divisional Court dismissed Hudson’s Bay Company’s bid to ease retail lockdowns in regions of Ontario hardest hit by the COVID-19 pandemic. This decision signals a lingering post-Vavilov doubt about how closely courts will examine the legality of regulations, and also illustrates the courts’ deferential approach to government restrictions on civil liberties during the pandemic.

In Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98, Vice-Chair Bruce Best held that an employer violated the Human Rights Code (the “Code”) by revoking an existing family status accommodation that allowed an employee to leave work before the normal end of the shift in order to meet their child care responsibilities.

One year ago, lawyer Hadayt Nazami won a landmark ruling from the Supreme Court in Vavilov v. Canada. In a candid interview, Nazami provides insights about the years-long saga behind his victory, securing his client's right to Canadian citizenship.

If no provincial vaccine mandate is implemented, individual employers will have to take it upon themselves to determine how to introduce employees back into their workplaces in light of legal and social responses to the pandemic. These policies promise to be complex, requiring a fine balancing of the rights of each stakeholder. This article will discuss some of the considerations for employers when creating these “return-to-work” policies.