BARE BONES BRIEFS: OCA boosts prisoners, Divisional Court boots disabled | Condo developers don’t have fiduciary duties | OCA forces OSC to disgorge dilatory transcripts | Best law firm bulletins

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By Julius Melnitzer | April 5, 2021

Divisional Court: government has no duty to be competent

In dismissing a class action by developmentally disabled adults seeking only what they were due under Ontario law, the Divisional Court confirmed what we already knew: the government of Ontario has no duty to administer its mandates competently. The claim in Leroux v. The Queen alleged serious operational flaws in the statutory support Ontario owed to developmentally disabled adults. In particular, the plaintiffs alleged that when class members turned 18 and “aged out” of the services provided to them as children, the province placed them on “indeterminate waitlists” that resulted in many families facing “substantial financial distress.” Justice Edward Belobaba of the Ontario Superior Court certified the case.

A 2-1 majority in the Divisional Court overturned the certification. The majority ruled that Ontario was protected by common law Crown immunity. As “sympathetic” as the plaintiff’s plight was, it did “not give rise to a private common law duty of competent administration on the part of the government”.

Class counsel Kirk Baert of Koskie Minsky LLP in Toronto says his clients are seeking leave to appeal to the Ontario Court of Appeal. “The majority of the Divisional Court is wrong,” he said. “They misconstrued the claim and misunderstood the law. The Court of Appeal will fix these errors.”

Picture of Kirk Baert
Kirk Baert

Related Story: Federal Court decertifies veterans class action for delay on pension benefits

OCA: administrative segregation unconstitutional

The Ontario Court of Appeal has ruled that Ontario’s administrative segregation scheme between 2015 and 2018 was unconstitutional and negligent to the extent that it applied to mentally-ill inmates and isolation beyond 15 days. The mentally-ill plaintiff in Francis v. Ontario was held in Toronto South Detention Centre for over two years on remand for robbery-related charges. During that time, he twice refused to take medication that had caused negative side effects previously. Correctional officials determined that this amounted to his “refusing to follow an order”, an offence that justified administrative segregation. The inmate was ultimately acquitted on all counts.

Kirk Baert of Koskie Minsky applauds the ruling. “Ontario’s ill-fated attempt to immunize itself from claims by its citizens for Ontario’s own negligence, while denying they were doing that very thing, has come to a well-deserved crashing end,” he says.

Related story: Finally, a judgment against CRA for negligence in audit of business

BCSC: Condo developers owe no fiduciary duty to owners

Justice Elliott Myers of the British Columbia Supreme Court has ruled that condo developers do not owe a fiduciary duty to pre-sale purchasers. In doing so, he validated developers’ established practice of granting themselves an option to lease over parking and locker areas. One West Holdings Ltd. v. The Owners, Strata Plan LMS2995 arose when the defendant Strata took control of commercial stalls to which One West had retained the leasehold rights.

Related Story: Courts taking consumers out of consumer protection

Unrepresented party can’t get transcript

In a somewhat baffling case, Bourgaba v. Conseil Scolaire de District Catholique de l’Est de L’Ontario, an unrepresented appellant had to apply to Justice Peter Lauwers of the Ontario Court of Appeal to obtain transcripts of hearings that were the subject of his appeal. The transcripts had been prepared, but the Superior Court had not released them – for no apparent reason. The parties “essential problem”, Lauwers said, “is with the Superior Court”. Or maybe its treatment of unrepresented litigants?

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Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at julius@legalwriter.net or https://legalwriter.net/contact.

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