Civil Procedure and Practice in Ontario, Vol. 2

I’m delighted to announce that the updated 2022 edition of Civil Procedure & Practice in Ontario is now live at https://www.canlii.org/en/commentary/81787.

We are also grateful to our publishers CanLII, and in particular the team of Sarah Sutherland, Alex Tsang, and Alicia Lazear.  Assistant Editor Sheldon Leung and our Windsor Law editorial team (introduced below) were essential to the success of this project. 

Another real cost of Doug Ford’s obsession with lakefront megaprojects: neglect of urgent infrastructure needs across the province, including these ones in Central Etobicoke.

@noel.semple7

A tour of urgent central Etobicoke infrastructure needs… the billions being wasted on Doug Ford’s Mistakes by the Lake could do a lot more good spread across the province!

♬ original sound – Noel Semple

Transcript:

They say that everyone who makes it to the top eventually forgets where they came from, and forgets the people who helped them rise.

It’s just a question of when.

And this neighbourhood, Central Etobicoke, is where Premier Doug Ford of Ontario came from. It’s middle class suburbs like this across the province that gave him his electoral majorities.

But people around here are starting to wonder whether the Premier has, in fact, forgotten the people who put him where he is as we watch this extremely expensive obsession of the Premier’s with downtown Toronto waterfront mega-projects.

So $2.2 billion of public money is being spent on the Ontario Place luxury spa and the shrunken Science Centre. And here I’m standing at the Wedgewood Park community pool, which as you can see has no water in it and is completely closed.

It will be closed until late June, even though there’s plenty of days like today, which are in the high 20s in June where lots of kids would like to be using this pool and adults too.

And of course, if you’re trying to sign your kids up for swimming lessons at any time, good luck because they’re generally full. Now, of course, the pool is a municipal project, but the city does not have the money to open these things more. And the province has no problem interfering in municipal jurisdiction when it wants to change something.

So why can’t some small portion, some tiny portion of that 2.2 billion go instead to open our neighbourhood pools?

Here’s another example of neglect that I find pretty depressing. So this is the old Etobicoke school board building. It’s this cool architecture they call this brutalist architecture.

This used to be the school board headquarters for Etobicoke, back when Etobicoke was its own city. Then, of course, Etobicoke was amalgamated into Toronto by a conservative government, and we lost our local school board.

And then most recently another conservative government has taken over the Toronto District School Board and this building has just been allowed to go completely to seed.

You can see the stairs have fallen apart so badly that they’ve had to be blocked off so no one can use them because they are a serious hazard, and the landscaping is not being kept up, things are overgrown and you know there’s a big pothole over here as well.

These should be our civic jewels. Good things should be happening here. The government should be taking care of them instead of just taking them over and then letting them fall apart, so they’re eye-sores and do no good to anyone.

This whole district is called Etobicoke Civic Centre and it was a City of Toronto building for a long time. The City of Toronto is now moving its staff out of here, and a lot of people are asking whether anything great might be done with this site once the city moves out. Perhaps top of the list would be a new healthcare facility.

There are over 200 hospital sites across Ontario. We have zero hospitals or hospital sites in Central Etobicoke. There’s 75 community health centres across Ontario. Again, we have zero community health centres in central Etobicoke. And we have a a high population of retired people; we have a lot of people with high health needs, and yet we are simply not getting investments in health infrastructure in Central Etobicoke.

And I think I know why: it’s because the people who represent us even though they are very powerful- Premier Ford living in Central Etobicoke, the Minister of Infrastructure representing Central Etobicoke — simply take this area for granted and don’t think they need to prioritize investments here when they could be spending that money on the waterfront instead.

Alright, one more example for you. So this is the Etobicoke Olympium and it’s terrific. This is a world class swimming facility and a gym and a rec centre. The problem is that this was built in 1976, and it’s the last significant recreation centre that was built in a Etobicoke Centre, 50 years ago.

Just last year there was the possibility of having a recreation centre built in the riding at Eglinton near Royal York but the MPP and the Premier and our Councillor teamed up to get It cancelled.

They said they didn’t like the location, but there’s been no talk whatsoever of having that built in another location (in the riding). And this (Etobicoke Olympium) was built when Etobicoke was much smaller than it is today.

And you see in Mississauga and in other parts of Toronto and the suburbs, beautiful new recreation centres opening up so kids can learn to swim and adults can use the gym and all this stuff.

And we are just not getting that in central Etobicoke. It’s like we’ve been forgotten or the people who are supposed to be speaking for us and fighting for us are just taking us for granted.

So we’re stuck in the past.

Maybe when you get to be as powerful as Doug Ford is right now, nothing smaller than a huge mega-project by the lake — like a 2.2 billion dollar spa or a jet runway or a convention centre on Lake Ontario — maybe nothing smaller than that is big enough to seem important to you.

But for the people who actually live in the communities of Ontario, it’s the little things that make a difference. And until we can get our pools open on hot days and have health care facilities where we need them and, you know, opportunities for our kids to learn to swim, let’s put the priority where it belongs and tell these people who are supposed to be representing us that they need to do better.

YYZ is closer than you think! On using infrastructure we already paid for, not wasting money paving over the waterfront and islands.

@noel.semple7

Toronto Pearson airport is closer than you think! Let’s use the infrastructure we’ve already paid for, instead of wasting money paving over the waterfront and islands.

♬ original sound – Noel Semple

Transcript:

Expanding the Toronto Island airport for big jets is a bad idea for a bunch of reasons. But for me as an Etobicoke guy and a taxpayer, a big one is that it’s a waste of money, given that we’ve got Pearson airport right here with oodles of room to expand, and it’s a lot closer to downtown than a lot of people think.

So I took the 900 Express bus here from the Bloor line. It took me 20 minutes. And driving from Pearson Airport to Union Station downtown can be as quick as 24 minutes depending on traffic. More importantly, it’s only 28 minutes any time of the week on the Union Pearson Express.

The Ford government says we’ve got to expand the island airport to attract tourists and businesspeople to Toronto. But can you find me a single tourist or business person anywhere in the world who’s saying, I’m thinking of coming to Toronto, but you know what, 24 or 28 minutes is just too far from downtown, so I’m just gonna go to Chicago instead.

It doesn’t make sense.

Speaking of the Union Pearson Express, we, the taxpayers of Ontario, spent almost half a billion dollars building this train just 10 years ago to get that 28 minute guaranteed service from Pearson to union.

It’s very expensive to build public transit in Ontario. Once we built it, we should get the most out of it. We should use it, we should expand the capacity of this train. They could just run a few more cars on it, increase the frequency, it would be very cheap, and expand Pearson to meet whatever unmet demand there is for air travel in Toronto, instead of paving over more of the waterfront and destroying a beautiful spot on the Islands, just to replicate something that Pearson’s doing already very close to the city.

Premier Ford and his Minister of Infrastructure, Kinga Surma, represent the two Etobicoke ridings that are right next door to Pearson Airport. And there once was a time when cabinet ministers would kind of “bring home the bacon” a bit, and make sure that needed infrastructure projects in their home ridings were funded.

That’s definitely not happening in Etobicoke because the Premier is obsessed with building things on the downtown waterfront, whether it’s the luxury spa or this convention centre on the lake or the shrunken science centre, or now this idea of paving over the islands to put jet runways.

So if you want value for taxpayer money, and if you want what we’ve already built at such enormous expense to be used intelligently instead of more money being wasted on vanity projects, then demand a better provincial government.

Banning internet gambling ads in Ontario: a setback yesterday, but also a path forward

@noel.semple7 Banning internet gambling ads in Ontario: a setback yesterday, but also a path forward… #onPoli #Etobicoke #ProblemGambling ♬ original sound – Noel Semple

Transcript:

We all want our young people to thrive, but there’s disturbing evidence that young people today don’t feel the sense of hope and security that young people did in previous generations. 

And some of the threats confronting our young people like AI and climate change and Donald Trump seem like they’re beyond our ability to control. But some of the threats that our young people face can be dealt with and can be controlled if we have a government that just cares to try. 

And one of those threats is online gambling ads. So these ads are everywhere in Ontario, and they are quite effective in hooking people on this highly addictive product and sucking money out of their pockets and undermining their ability to care for themselves and for their families. 

But it’s within the power of the Ontario legislature to ban internet gambling ads and stop this cycle of exploitation. And we had a bill before the Ontario legislature, Bill 107, which would have done exactly that. Unfortunately, on Friday, it was voted down. Every single MPP in the governing Progressive Conservative caucus voted against it. 

But it was widely supported not only by the Ontario Liberal Party, but also by the NDP and the Greens. It’s no secret why the Ford government supports the current state of affairs. Some people are getting very, very rich, and those people are well-connected. And protecting people from the harm that comes from this industry is secondary. 

There’s a lot of talk from this government about “protecting Ontario,” but when there’s a chance to do something that actually would protect Ontarians from all of this money being sucked out of our pockets into these mostly foreign corporations, that’s not the priority, not when there’s people who want to make money and a chance to help them do that. 

But the nice thing about Private Members’ Bills is even when they fail, they often become the basis of future government policy. And with this Private Member’s Bill in particular, the person sponsoring it is Lee Fairclough, who is also running to be leader of the Ontario Liberal Party and then Premier of Ontario. 

So if you like this idea of actually putting our young people first and protecting them from harm, then I encourage you to take a look at Lee Fairclough’s campaign. It’s early in the process, but it seems to me that she’s got the right set of skills, and intelligence, and dedication to listening and following evidence to make policy, that could make her a formidable Premier of Ontario.

What is a Front Porch Food Drive??

@noel.semple7

Front Porch Food Drive!

♬ original sound – Noel Semple

Transcript:

In places like Central Etobicoke, there’s too many folks don’t have enough to eat, but there’s also a lot of folks who have a little bit more than they need and are generously willing to donate. Food banks, everyone knows, are that link between people who can donate and people who need food to have food security for their families.

Food banks are terrific. Everyone should think about donating to their local food bank. But physically doing the logistics of donating food to a food bank is tough for some people. It can be complicated to remember to fill your bags with food and take them to the drop-off spot an it might also be kind of a physical strain for people to carry a lot of cans of food somewhere if they’ve got them to donate. 

So that’s where the Front Porch Food Drive comes in, and this is something we’ve done at my church here, St. George’s on the Hill Anglican, for the past few years, where we go around our neighborhood, and we’ve distributed this year seven hundred and fifty bags with flyers asking neighbors to donate, fill the bags with food. 

And today, Mother’s Day afternoon, we drive around the neighborhood, picking up the stuff that’s been left on porches and bringing it. Our target this year is two thousand items. We’ve got incredible volunteers like Ruth in this picture, who’s bringing this bag of food from a house, and in this picture, we’ve got James and Carol, who filled their trunk and their backseat with food. And, we also have Malcolm. Malcolm, what did, what did you get up to today?  

Malcolm: Picked up bags.  

Noel: Okay. That’s right. So we got [laughs] everyone pitching in, and we are now going to head back down to the basement and see what the scene looks like down there. And here’s the sorting room where everything gets categorized as protein, fruit and veg, or carbohydrate, and placed on these tables, and we keep track of everything that comes in.  

All right, so we’re done sorting, and we’ve got five hundred and fourteen protein items and five hundred and eighty carbs and three hundred and thirty-six fruit and veg and three hundred and eighty-two miscellaneous for a grand total of one thousand seven hundred and ninety-two non-perishable food items for the St. James food basket, and had a great time doing it. 

I miss my dream commute 😢

@noel.semple7

I miss my train commute 😢. Should the government fix the existing train problems before spending big on high-speed?

♬ original sound – Noel Semple

Transcript: Standing behind me is an old friend who’s not part of my life anymore, which is sad. I’m in Windsor, Ontario, where I’ve taught law for the past 12 years now at the University of Windsor. I live 350 km away in Etobicoke.

For the first decade of my job here, I took Via Rail train 73 train once a week during the university term.

And it was great. It was scheduled to arrive here at 3:45, and my civil procedure class started on Tuesdays at 4:30.

So I had a folding bike that I was able to get out here, unfold the bike, and get across Windsor for my class. It was a great commute, and it looked like it was about to get better in 2024 when Via started rolling out these new “Venture” trains that it bought.

Prior to these trains the ones we rode on were built actually in the 1950s. The new ones are a lot more comfortable in a lot of ways and very attractively, they have bicycle storage. So I thought I’d be able to start riding a full size bike instead of a foldie, which would have made my commute even better.

And it looked like it was gonna be terrific until October of ‘24. In October of 2024, these trains started becoming consistently 15 to 45 minutes late. The train today (Thursday May 7) was over a half an hour late, arriving in Windsor.

And that wasn’t enough time for me to get to my class and I can’t be late.

So I’ve been driving my car here from Etobicoke, during the university term, since late 2024.

So what happened in October 2024? Well, to understand that we’ve go to back up and realize that VIA rail is a passenger train company, it’s a federal Crown corporation but it does not own most of the railway tracks on which its trains run.

Most of its tracks are owned by CN rail, which is a privately held corporation, and CN as the track owner has the right to regulate the trains that run on it. In 2024 CN decided that these new Via Rail trains are too light to consistently trigger the level crossing safety arms.

If you’re driving across a train track you’ll see the arm go down and the lights light up and the bells start ringing. So CN is basically saying these trains are too light to make that happen. They’ve issued an order saying that via has to slow these trains down to about 70 or 80 kilometres down from 150 or 160 km, every time they go across a level crossing between Windsor and Quebec City, which means the trains are always late.

Via disputes this they say that there’s no problem and the trains trigger the level crossings just fine and they can’t figure it out. They are in Court they are litigating in the Quebec Superior Court and also in the Federal Court.

Eighteen months in, there is no end in sight. They’re deep into documentary discovery and it looks like, hundreds of thousands of dollars, if not millions will be spent on lawyers, and then eventually a resolution to this dispute will come out of the court.

But in the meantime, everyone who relies on this train to get somewhere by a particular time, like if you’re commuting to a job, is pretty much out of luck.

I don’t enjoy the drive, and I feel a little bit guilty about the carbon emissions, but I’m also actually saving a lot of money by driving. It’s quite astonishing that the price to take this train from Toronto to Windsor and back

it was about $210, which is almost twice as much as it costs in gas to drive here [and back]. So I buy the carbon offset so I don’t feel so guilty and I save money, which is really weird that the public transit option ends up costing so much more than just driving a car by yourself down all that highway.

I think there’s some lessons here for the federal government, which is now talking about a huge new high speed rail project. And that might be a great project, but I think the devil’s in the details and in particular, it’s crucially important that this new rail project, do better than Via rail is doing right now. That is a matter of having a train which sticks to its schedule and is also affordable for people.

The big idea in Canadian politics right now is “build, baby, build,” build more stuff, build more infrastructure and that’s great, but we’ve got to make sure the stuff we build actually works once we get it built.

And more specifically, when it comes to this dispute between Via rail and CN which is making this train and all the other Via trains on the corridor late, I think the federal government needs to be a little bit more hands-on.

I don’t think this is the sort of thing we can just leave to these corporations to sort out through litigation cause it’s gonna take years and cost millions. I think the federal government needs to get its hands dirty and work on getting this into arbitration or mediation.

They’ve got a certain amount of leverage over both Via and CN but if we’re gonna have a public sector which spends taxpayers money we’ve got to take accountability and responsibility for making sure it works.

I think this is a great opportunity for the federal government to show that it’s willing to do that, which will in turn build public support for the high speed rail project and you know, maybe get me off the road and back onto the rails where I want to be.

The Purpose of Civil Procedure

Civil procedure should be “just, speedy, and inexpensive,” according to the purposive rules found at the outset of many procedural codes. However, this formula creates as many questions as it answers. What does it mean for procedure to be “just?” What sorts of costs are relevant when considering how “inexpensive” procedure is?  How should rule-makers and adjudicators compromise between justice, speediness, and inexpensiveness when these goals are in tension and resources are scarce?

         This article offers a normative account of civil procedure’s purpose. The goal is to identify the warrant for“just, speedy, and inexpensive,” and then to explain and refine it. I argue that welfarism, a general normative theory of public policy, is implicit in modern civil procedure.  Welfarism is the idea that public policy decisions should always seek to optimize welfare for all affected individuals.  I defend welfarism as a theoretical basis for reforming civil procedure and resolving its hard cases, and propose three refinements to civil procedure’s purposive rules to give better effect to it.

Download: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6710042

A nice example of a defunct condo project, repurposed as (partially) affordable rental

@noel.semple7

Good news example of a defunct condo project being repurposed as (partially) affordable rental. The kind of public/private cooperation we need!

♬ original sound – Noel Semple

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Transcript:

They say that when one door closes, another one opens, but sometimes it takes government and private sector working together to push that door open.

So the GTA is going through a condo crash right now. Lots of planned condo projects are being cancelled cause the demand is just not there. And obviously that’s bad for a housing supply and also bad for all the folks who could be working building those towers.

But the good news is that some of these condo projects are being converted to purpose-built rental projects, some of which are actually quite affordable.

The Toronto Star reported this week on 511 Kingston Road in Scarborough, which was planned for a luxury condo project that got cancelled due to lack of demand.

And it was a three storey hole in the ground for quite a while. But recently this developer Marcus Tzaferis has found a way to relaunch the project as a rental apartment building in which [30%] of the build units at least will be affordable. City Hall is chipping in with $7.8 million in capital funding as well as a property tax exemption and the local councillor helped coordinate it.

And there’s a non-profit which does affordable supportive housing across the street, which is potentially going to be part of making this happen and get these units going.

But it also required some private sector risk-taking and ingenuity. So the developer has pivoted and this individual Marcus Tzaferis identified in the article as thinking outside of the box, and that’s the kind of entrepreneurship we need: where someone in the private sector identifies a real social need and takes on some risk and meets the need.

Andif they turn a good profit after doing something like that, good for them. But in this case, it was the sort of thing which required cooperation between government and private sector to make something good happen.

An exciting new chance to STOP internet gambling ads in Ontario

@noel.semple7 An exciting new effort to ban internet gambling ads in Ontario #onPoli ♬ original sound – Noel Semple

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Transcript:

Internet gambling ads are everywhere in Ontario. This one team of researchers watched a single Raptors playoff game and they counted 799 ads and sponsored references to internet gambling during just one game. And of course, it’s not just TV, it’s the billboards, it’s the internet ads. It’s just like saturation marketing. And the reason why these companies spend so much money on the ads is because they work. They are successfully hooking a whole new generation of gamblers, mostly young men. You only have to get someone to download the app and then they’ve got this highly addictive, highly expensive habit which is living in their pocket 24/7. 

And a lot of people in Ontario are gambling money they can’t afford to lose, because it should be supporting their families or saved for the future. Or it could even just be contributing to the Ontario economy. Almost a hundred billion dollars was gambled on the internet in Ontario last year and four billion of that was profit, which was sucked out of people’s pockets into these corporations, most of which are foreign. 

This is a predatory system, and it took root in Ontario and nowhere else in Canada for the same reason we had the green belt scandal and the skills development fund scandal, which is that the Premier and his cabinet are willing to take calls from lobbyists and well-connected millionaires who have plans that will make them very rich and the Ford government’s going to try to make It happen for you if you’ve got the Premier’s phone number and you’re considered a friend of the government, and it doesn’t really matter who suffers or how the public interest is affected. That’s why we ended up with this system with all of these private companies competing to hook as many gamblers as possible and with the right to saturate every airwave, internet site, and sports game with non stop gambling ads. 

But on Monday, someone stood up in the Ontario legislature and took a stand against this and that person is MPP Lee Fairclough who represents Etobicoke Lakeshore for the Ontario Liberal Party. And Lee is a mother of two teenage boys and she’s someone who has run a hospital and has extensive experience in mental health. So she knows as well as anyone in Ontario how dangerous this addictive product is and how much damage we’re doing to our next generation as well as the current generations by letting this advertising free-for-all continue. So she introduced Bill 107 which would simply ban advertising for internet gambling in Ontario. 

So if you agree that it’s time to end this madness, then please visit MPP Fairclough’s site and sign the petition to send a message to the government that things have got to change. So internet gambling, it’s basically like tobacco or marijuana. Some people can use it and it’s just harmless fun but it’s also very addictive. And it’s especially dangerous to young people. So just like tobacco or marijuana, if internet gambling is going to be legal, it should not be advertised. That shouldn’t be something we are exposing our young people to. So, thanks for listening. Check out the website and I hope to talk more about this, over the next couple weeks. 

Does Toronto need “Tree Equity,” or should it just plant trees in neighbourhoods that lack them?

@noel.semple7 Will “tree equity” uproot progressive government in #TOpoli ♬ original sound – Noel Semple

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Toronto’s having a mayoral election this fall.  Until last week, I thought I’d probably vote to re-elect Olivia Chow.  I’m not so sure any more, after reading about the Mayor’s plan rolled out last week for “Tree Equity.”

Unlike some, when I first heard this phrase I liked it.  More trees in Toronto would make life better: more beautiful streets, more breathable air, more moderate climate.

So I’m glad the Mayor wants to plant more trees on public land, and help the people of Toronto plant them on private land.

As for the “Equity” part of “Tree Equity,” I assumed this means planting trees in parts of the city that don’t have many of them. It is equitable for all Torontonians to share equally in our “urban forest,” and inequitable for some neighbourhoods to miss out.  It’s probably true that disadvantaged neighbourhoods, on average, have fewer trees than wealthier ones and that’s an unfairness the City should address.

But dig down into the City’s page on “Tree Equity,” and you’ll find that something different is going on. 

To decide where to plant trees, the City is giving “Tree Equity scores” to neighbourhoods.  And those scores are based not only on how many trees the neighbourhood has, but also on race and language and age data about the people who live there, along with a bunch of other stuff unrelated to trees.

In other words, the City’s tree-planters, when deciding where to plant, are going to discriminate  between neighbourhoods on the basis of race, languages spoken, and average age of residents.

Suppose you live in a neighbourhood that doesn’t have enough trees.  You see the City’s workers, paid by your property tax, planting trees somewhere else instead, while your street remains treeless and baking in the summer sun.  If you wonder why, the answer might be “because you and your neighbours are of a certain race, or speak a certain language.”

That’s unfair, and also toxic for progressive government.  It’s not a message that the City should be sending to its residents. It’s likely to create resentment, around something that could and should bring us together.

It plays right into the hands of those who don’t want the City using taxpayer money for this sort of thing at all.

That’s a tragedy, because using City resources to plant trees in neighbourhoods that lack them is a policy that most Torontonians can get behind. This isn’t a city of people who care only about their own back and front yards. It’s a city of people who want the whole city to be great for everyone here.

A lot of homeowners voted for Mayor Chow in the last election, knowing full well she would raise taxes, because they thought she was going to improve city services.  And they accepted that she would prioritize the people and places that needed the help most — affordable housing, food in schools for kids who don’t get enough at home, and help for the homeless.  Personally, I have no problem paying taxes for city tree planting, even though none of them will be planted on my street, because my street has plenty of trees already.

Turn tree-planting into this over-complicated, discriminatory project, and all of that support can quickly evaporate.

Mayor Chow, please keep it simple — plant trees, starting in places that have the fewest trees.  That’s the equitable, sensible approach that will plant progressive city government in fertile soil, in October’s election.