Judicial oversight
Government shields, vaccine views, and lawyers who are criminals.
Dylan Gibbs
March 20, 2025
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PRESENTED BY |  |
It’s March 20, which means Spring has officially sprung. Good riddance to that W guy and his friend seasonal depression.
— Dylan Gibbs
TODAY'S DOCKET |
Government liability shields (redux)
Vaccine indoctrination
Workplace discrimination
Henry VIII
Cabinet shuffles
No shows
Descents into madness
STAYING CURRENT 🗞️
Recent and notable
Ontario Place development escapes judicial oversight
Ontario Place Protectors v. Ontario, 2025 ONCA 1650
Here’s another case about the limits on governments shielding themselves from litigation.
You might remember the BC Court of Appeal recently striking down legislation that went too far. The Ontario Court of Appeal has now gone the other way, saying there’s nothing wrong with the statute that fast-tracks Doug Ford’s controversial Ontario Place development.
The challenge stemmed from a law that exempts Ontario Place from regulatory approvals and bars any related litigation. Advocacy groups argued the law is unconstitutional, saying it takes too much power away from the courts.
But according to the Court of Appeal, there’s nothing wrong with the province changing the law to end litigation. The government is free to deregulate a specific project and shield itself from liability.
[This legislation] does not prevent the superior courts from serving as courts of general jurisdiction. It does not usurp their core adjudicative function. It does not transfer or remove any of their core functions. It simply immunizes the Crown against liability in respect of the Ontario Place redevelopment and removes the redevelopment from legislation to which it would otherwise be subject.
You’ll be disappointed if you were hoping the Court would grapple with the BC Court of Appeal's recent ruling and explain the difference. There’s no mention of the BC case despite its similarity.
To my eyes, the two cases are compatible.
The BC Court of Appeal took issue with “deeming” legislation. Residents argued that a municipal zoning hearing was procedurally unfair. The legislation deemed the hearing validly held, which effectively directed the courts to turn a blind eye to the procedural fairness concerns.
Ontario could have done the same thing here by saying: “Ontario Place is deemed to have met all the applicable regulatory requirements”. Instead, Ontario said the requirements simply don’t apply.
If that feels like a nitpicky difference … that’s why they pay us the big bucks.
Mom gets the vaccine veto
M.S. v. V.D., 2025 BCCA 84
The BC Court of Appeal let a mother with primary decision-making authority vaccinate her children against HPV over their father’s objections, while also upholding an order that prevents the father from even mentioning the vaccine to his children.
As the chambers judge saw it, the father tried to indoctrinate his children with his anti-vaccine ideology, which was a good enough reason to silence him.
The father argued the chambers judge cherry-picked evidence and demonstrated bias by using the word indoctrination. But the Court of Appeal disagreed.
The [father] provided the judge with extensive information he says supports his contention the HPV vaccine is dangerous.
[He says the chambers judge] “cherry-picked” the evidence. [But in my view,] the judge simply preferred the evidence offered by the [mother] … (including publications from the Canadian Cancer Society, Fraser Health Authority, and Public Health Agency of Canada). [T]he judge concluded these publications “… make clear that health authorities/experts in Canada favour the HPV vaccine and recommend that it be administered to pre-teens”.
[And despite the chamber’s judge’s phrasing], neither the single use of the word “indoctrinate” nor the reasons as a whole, reveal any bias...
Federal discrimination suit gets tossed
Thompson v. Canada, 2025 FC 476
The Federal Court struck a proposed $4.5 billion class action brought by Black federal employees. The suit alleged systemic discrimination in hiring and promotions across the entire federal public service.
According to Justice Gagné, the lawsuit failed just about every requirement to certify a class action.
The claim overlapped with other lawsuits targeting specific federal departments.
It relied on claims that should have been advanced through labour grievance processes instead of civil lawsuits.
And it didn’t allege that a specific government action or policy impacted the entire class of Black employees (making the claims inappropriate for a class action). Every employee alleging discrimination would have required their own unique and contextual analysis.
The Court does acknowledge the profoundly sad ongoing history of discrimination suffered by Black Canadians, just as it recognizes the fact that each one of the representative Plaintiffs have faced challenges not faced by their non-visible minority colleagues in the federal public service. But unfortunately, that was not the issue that the Court was tasked to assess. [T]he Plaintiffs stated that the Court was their last hope to obtain a fair outcome for the prejudice suffered. Although I truly sympathize with the Plaintiffs … I respectfully disagree.
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BY THE NUMBERS 📊
$10: The amount Quebec restaurants will soon be able to charge customers who don’t show up for a reservation. Quebec is currently the only province where no-show fees are illegal — a law the province says hurts small businesses more than it helps consumers.
2: The number of weeks a BC woman spent in US immigration detention centres, thanks to the Trump administration’s aggressive new posture toward visa applicants.
$25,000: The potential fine for businesses that break PEI’s vape and tobacco rules.
MAKING HEADLINES 🗞️
🇺🇸 BC’s trade war legislation is kicking up dust thanks to a controversial Henry VIII clause — the sort of provision that lets the executive branch of government sidestep the legislative branch.
A typical Henry VIII clause gives the power to amend a statute by regulation instead of legislation. They’re legal (at least, that’s what the SCC said in the fairly recent Greenhouse Gas Pollution Pricing Act Reference). But BC’s proposal is especially broad.
If the new legislation is passed, BC’s Lieutenant Governor would be able to amend virtually any statute in the province by regulation, as long as the regulations support the economy of British Columbia and Canada, tackle interprovincial trade barriers, or respond to anticipated threats posed by a foreign jurisdiction.
The Lieutenant governor won’t be able to change licensing requirements for natural resource development or laws dealing with Indigenous engagement, but everything else is fair game.
Given the breadth — if there was ever a test case to reconsider the legality of Henry VIII clauses, this is probably the one.
You can see the full text of the proposed legislation here. Sections 19-20 seem to be the most extreme.
👨💼 Say hello to Canada’s new justice minister, Gary Anandasangaree. He’s taking the reins from Arif Virani, who won’t be running in the next election. Born in Sri Lanka, Anandasangaree practiced human rights law before his political career. He’s also staying on as the Minister of Crown-Indigenous Relations and Northern Affairs — which is now combined with the justice portfolio under Prime Minister Mark Carney’s streamlined cabinet.
Virani is going out on a high note, having cut judicial vacancies from record highs at the start of 2023 to lows we haven’t seen in ages. As of March 1, there were only 19 vacant positions for federally-appointed judges.
🇨🇦 We’re still waiting on new legislation for lost Canadians, but there’s now a stopgap measure. It’s been more than a year since Ontario’s Superior Court of Justice struck down citizenship restrictions for people born outside the country. But between filibusters, prorogation, and a new Prime Minister, the federal government has had a tough time passing legislation to fill the gap. While we wait for an election and a new legislative session, Immigration Minister Marc Miller says the government will fill the gap using discretionary citizenship grants (effectively mirroring the legislation the government planned to enact before things went sideways last fall).
THINGS NOT TO DO 😤
Don’t descend into madness.
Former Ottawa lawyer James Bowie was convicted this week of criminal harassment, extortion, and uttering threats. The Court found that he preyed on a vulnerable client, offering legal services in exchange for sexual favours. When the client went to the Law Society, Bowie resorted to threats.
Here are excerpts from the decision, as reported by the Ottawa Citizen:
He believed he was untouchable. His admitted sexual advances were not warranted or invited, but squarely part of his decision to prey upon a vulnerable victim in the hopes of self-gratification.
He did become unhinged and he desperately entered into conduct designed to regain, at all costs, the life that he knew…
He attempted to manipulate (his friend) and bring her into his own madness … to obtain someone to kill [his client Ms. Aubin] or to obtain a gun.
OBITER DICTA
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