In Reference re iGaming Ontario, a reference to determine the legality of online gamplbing and sports betting in Canada, the Court permitted certain intervenors, the province of British Columbia and the Canadian Lottery Coalition Members to introduce evidence in response to the evidence tendered by the province of Ontario. The Court was of the view that since the intervenors were effectively the opposition to Ontario, they should be entitled to respond to Ontario's evidence and not allow it to proceed unchallenged.
Clancy v. Farid was a case in which an extension of time to perfect an appeal was denied after the moving party had failed to comply with a prior ordered deadline.
Table of Contents
Civil Decisions
Reference re iGaming Ontario, 2024 ONCA 569
Keywords: Criminal Law, Gaming, Constitutional Law, References, Civil Procedure, Interveners, Evidence, Admissibility, Expert Evidence, Sealing Orders, Criminal Code, R.S.C. 1985, c. C-46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 8, Constitution Act, 1867, 30 & 31 Vict., c. 3, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 349, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Sherman Estate v. Donovan, 2021 SCC 25, Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, Fletcher v. Ontario, 2024 ONCA 148
Clancy v. Farid, 2024 ONCA 568
Keywords: Torts, Defamation, Civil Procedure, Summary Judgment, Appeals, Dismissal for Delay, Extension of Time, Canadian Charter of Rights and Freedoms, s. 11(b), Rules of Civil Procedure, rr. 3.02(3), 61.09(1)(a), 61.13(3.1), 61.16(5), Issasi v. Rosenzweig, 2011 ONCA 112, Hategan v. Frederiksen, 2022 ONCA 217, Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Lymer v. Jonsson, 2023 ABCA 367, St-Amour c. Major, 2017 QCCS 2352, R. v. K.G.K., 2020 SCC 7
Short Civil Decisions
Clarke v. Toronto (City), 2024 ONCA 567
Keywords: Municipal Law, Elections, Civil Procedure, Striking Documents, Vexatious Litigation, Elections, Municipal Elections Act, s. 83(1), Rules of Civil Procedure, 2.1.01(3)
Campbell v. Toronto Standard Condominium Corporation No. 2600, 2024 ONCA 578
Keywords: Costs
CIVIL DECISIONS
Reference re iGaming Ontario, 2024 ONCA 569
[van Rensburg J.A.]
COUNSEL:
J. Hunter, A. Sinnadurai, H. Evans and J. Boyczuk, for the Attorney General of Ontario
R. Danay and K. Hogg, for the intervener the Attorney General of British Columbia
C. Sethi, K. Spence, J. Houston and M. Milne-Smith, for the interveners Atlantic Lottery Corporation, British Columbia Lottery Corporation, Lotteries and Gaming Saskatchewan and Manitoba Liquor and Lotteries Corporation
A. Goldenberg, G. Ringkamp and R. Abrahams, for the intervener the Canadian Gaming Association
S. Hutchinson, K. Flanagan, and B. Chung, for the intervener Flutter Entertainment plc.
G. Hamilton and T. Markin, for the interveners NSUS Group Inc. and NSUS Limited
N. Kennedy, for the intervener Mohawk Council of Kahnawà:ke
Keywords: Criminal Law, Gaming, Constitutional Law, References, Civil Procedure, Interveners, Evidence, Admissibility, Expert Evidence, Sealing Orders, Criminal Code, R.S.C. 1985, c. C-46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 8, Constitution Act, 1867, 30 & 31 Vict., c. 3, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 349, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Sherman Estate v. Donovan, 2021 SCC 25, Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, Fletcher v. Ontario, 2024 ONCA 148
FACTS:
The Lieutenant Governor in Council referred a legal question to the Court under section 8 of the Courts of Justice Act. The question concerned the legality of online gambling and sports betting in Canada under the Criminal Code if users were allowed to participate in games and betting involving individuals outside of Canada.
On May 1, 2024, the Court heard motions for leave to intervene and to adduce evidence from intervenors. On May 31, 2024, the province of Ontario submitted a 745-page record containing Hansard transcripts, other materials filed without affidavits and the affidavits of officials from iGaming Ontario and Flutter International, a global sports betting and entertainment provider.
The province of British Columbia and the Canadian Lottery Coalition Members sought to adduce their own evidence to correct factual misimpressions in Ontario's evidence. Specifically, the alleged misimpressions included that the proposed scheme would in fact bar players located outside of Ontario but within Canada from betting against players located in Ontario, and that the proposed scheme was analogous to or permissible under the regulatory schemes in various other jurisdictions. Ontario, Flutter, the CGA, and NSUS opposed the admission of this proposed evidence.
The Canadian Gambling Association also requested confidentiality orders for some of the proposed evidence on the grounds that it contained sensitive information that could harm reputations and regulatory standing.
ISSUES:
- Should BC and the Canadian Lottery Coalition Members be granted leave to file their proposed evidence and cross-examine Ontario's affiants?
- Was BC's expert report properly tendered as expert evidence and was the author qualified to provide the opinions in his report?
- Should the CGA's motion for confidentiality orders be granted?
HOLDING:
Motion for leave to adduce evidence granted. Motion for confidentiality orders dismissed.
REASONING:
1. There were two thrusts to the opposition: that the proposed evidence was irrelevant to the reference question and that its admission at this stage may lead to delay and complexity in the reference proceeding. The question to the Court was whether the proposed evidence "may assist the Court in determining" the reference question.The Court found that the general rule that interveners are typically not permitted to supplement the record was inapplicable in this case. In this case, the moving parties were the effective opposition to Ontario. Ontario should not be entitled to proceed unchallenged, and meaningful opposition must include an opportunity to challenge the factual assertions in the record.
Secondly, the Court found that it was important to create an adequate factual context for the accurate determination of the reference. Regardless of whether this was a constitutional reference, the Court still noted that the comprehensive factual context would assist the Court in ultimately answering the reference question. Being capable of answering the reference question presupposes an understanding of how the current scheme operates, and this requires all the factual context from different angles.
The Court found that it would be inappropriate to "limit the scope of the legal arguments by artificially curtailing the factual record." Additionally, the judge agreed that putting forward new evidence to broaden the scope of the reference was unacceptable. However, this was not what was occurring on this issue – the proposed evidence was only to respond directly to Ontario's own evidence.
2. Not decided. The judge found that it was premature to make a determination about the admissibility and appropriate scope of the expert evidence. This was deemed to be information for the panel's determination, not a single judge of the Court.
3. Examining the test laid out by the Supreme Court in Sherman Estate v. Donovan, the Court found that the CGA did not meet the threshold for "sensitive evidence" warranting confidentiality. She noted that public access to the "sensitive evidence" would not pose a serious risk to an important public interest. Any alleged regulatory or reputational harm was a private interest that would not justify an order limiting public access. Additionally, she reasoned that the "sensitive evidence" was already largely public, giving little justification or purpose in granting a sealing order.
Clancy v. Farid, 2024 ONCA 568
[Zarnett J.A.]
COUNSEL:
F., acting in person
Zemel, for the responding parties
Keywords: Torts, Defamation, Civil Procedure, Summary Judgment, Appeals, Dismissal for Delay, Extension of Time, Canadian Charter of Rights and Freedoms, s. 11(b), Rules of Civil Procedure, rr. 3.02(3), 61.09(1)(a), 61.13(3.1), 61.16(5), Issasi v. Rosenzweig, 2011 ONCA 112, Hategan v. Frederiksen, 2022 ONCA 217, Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Lymer v. Jonsson, 2023 ABCA 367, St-Amour c. Major, 2017 QCCS 2352, R. v. K.G.K., 2020 SCC 7
FACTS:
The appellant/moving party, T.F., moved to set aside the order dismissing his appeal for failure to comply with a judicial deadline. In June 2022, the moving party filed a notice of appeal challenging a March 2022 summary judgment that found him liable for online defamation and directed those damages be assessed at a subsequent hearing. The moving party obtained an order from a judge of the Court granting him an extension of the deadline to perfect his appeal on the basis that he would likely appeal the damages award when it was made. The judicially set deadline for perfection was to be 30 days after he received the reasons for decision on damages. Those reasons were released on June 27, 2023. T.F. did not perfect his appeal on time and the responding parties obtained an order from the Registrar dated March 15, 2024, dismissing the appeal for failure to comply with the judicial deadline. The moving party made various arguments about the Registrar's order, including that he did not miss the deadline for perfection when the deadline was properly interpreted. He also argued that it was in the interests of justice that his appeal be allowed to continue.
ISSUES:
- Did the Registrar err in dismissing the appeal?
- Should the Registrar's order nonetheless be set aside and the time for perfection extended?
HOLDING:
Motion dismissed.
REASONING:
1. No. The Court agreed that the previous motion judge set a specific deadline for perfection: 30 days from receipt of the reasons for decision on damages. She referred to this as a "strict timeline." In the Court's view, it did not matter that the damages reasons also granted certain injunctive relief and mandatory orders. The reasons released on June 27, 2023, were still easily identifiable as the point to begin the count of the 30 days to the perfection deadline. The Court held that the clear meaning of that deadline was not changed by T.F.'s attempt to challenge a portion of the order by a further proceeding in the Superior Court.
The Court also ruled that the Registrar had no power, in respect of an appeal, to vary a time provided for by the Rules set by a judge's order. The Registrar was bound to give effect to the judicial deadline for perfection set by the Court and to dismiss the appeal because it was not met.
2. No. The Court assessed the factors guiding the exercise of power to set a dismissal aside as set out in Issasi v. Rosenzweig. The Court was not satisfied that the moving party provided a satisfactory explanation for his delay in perfecting the appeal. T.F. had an ample amount of time to perfect his appeal after the original dismissal. Furthermore, the Court asserted that T.F. had neither amended the existing notice of appeal, nor filed an additional one, relating to anything that was ordered on June 27, 2023, far beyond the deadline of 30 days. The Court rejected the argument that the responding parties acted in bad faith by representing to T.F. that he had to pursue the matter by way of appeal.
The Court also held that there was no prejudice to the responding parties. The deadline for perfection was set as strict to minimize prejudice to the responding parties and accommodate their desire to have finality in their quest to be free of the overhang of the defamatory statements. The prospect that the deadline, which had already been substantially exceeded, would be further extended could undo that ameliorative step.
T.F.'s submissions relied on the assertions in the notice of appeal in June 2022. The Court believed they were unsupported by anything in the record that would allow it to conclude they had arguable merit. The Court believed the motion judge's reasons were detailed, their factual findings had no palpable or overriding error and were not impartial. The Court also held it did not see any merit in the proposition that it remained open to T.F. to ask the motion judge to consider further steps to exclude the evidence acquired as a result of the Anton Piller Order. The Court further ruled that T.F. showed no arguable case that there was a delay beyond the Jordan ceiling.
The Court finally concluded that the justice of the case did not support granting an extension of time.
SHORT CIVIL DECISIONS
Clarke v. Toronto (City), 2024 ONCA 567
[Miller, Harvison Young and Gomery JJ.A.]
COUNSEL:
C., acting in person
Siboni and A. Redinger, for the respondent
Keywords: Municipal Law, Elections, Civil Procedure, Striking Documents, Vexatious Litigation, Elections, Municipal Elections Act, s. 83(1), Rules of Civil Procedure, 2.1.01(3)
Campbell v. Toronto Standard Condominium Corporation No. 2600, 2024 ONCA 578
[Simmons, Harvison Young and George JJ.A.]
COUNSEL:
Marks and F. Burnett, for the appellant
C. and O. S., acting in person
Keywords: Costs
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