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Charter - Practice - Inadequate Foundation
COMMENT
This court practice (which I first noticed in the Charter administrative law context, which see) amounts to a summary dismissal of a Charter argument when it is variously - not accompanied by a Notice of Constitutional Question, not argued in the lower forum (aka 'fresh law'), inadequately-prepared so that there is no adequate evidentiary record below, and more.
CASES
. Patterson v. Eastern Residential Services Inc. [Charter application to parenting and foster parenting]
In Patterson v. Eastern Residential Services Inc. (Ont CA, 2026) the Ontario Court of Appeal partially dismisses an appeal, here brought against the "order made on a r.21 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which struck his statement of claim against Eastern Residential Services Inc. (“ERS”) and Simcoe Muskoka Family Connexions (“SMFC”), except for the breach of contract claim against ERS, which was struck with leave to amend".
The court dismisses the appellant's arguments that his 'parenting' (and foster-parenting) related claims sounded in Charter s.7, here for inadequate pleading foundation:[21] In his statements of claim, the appellant pleaded that the Societies are state actors for the purposes of ss. 7 and 24 of the Charter and that they could “affect the legal rights, powers, privileges, immunities, duties or liabilities of the [appellant], and … affect his eligibility to receive, or continue with his career as a child and youth care worker, a foster parent provider, and other work within the Child Welfare sector.”
[22] He further pleaded that the Societies breached standards under the CYFSA, the Ontario Child Protection Standards (2016), and related regulations. The alleged investigative deficiencies include unqualified or inadequately trained investigators, improper interview methods and techniques, a failure to obtain information from collateral contacts, and a failure to exercise reasonable judgment. He also alleges that the Societies acted unreasonably, violated the principles of fundamental justice, and infringed his s. 7 Charter right to security of the person. These allegations were advanced in support of both the Charter and negligence claims. However, neither statement of claim identifies the specific conduct said to breach s. 7, explains how that conduct amounts to a constitutional breach, or distinguishes the Charter claim from the negligence claim. . Beaudoin v. City of Ottawa
In Beaudoin v. City of Ottawa (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "the City of Ottawa’s decision to shut off her water supply in November 2024. Ms. Beaudoin’s water was shut off because of what the City said was her refusal to allow it to replace her water meter".
Here the court declines to consider a Charter argument due to "the absence of detailed submissions on this point":[43] In her oral submissions, the applicant made passing reference to claims that the City’s actions violated her rights under the Canadian Bill of Rights and s. 7 of the Canadian Charter of Rights and Freedoms. With respect to the Charter, she relied on Health Services and Support v. B.C., 2007 SCC 27, [2007] S.C.R. 391, a case about Charter protection for collective bargaining.
[44] Given the absence of detailed submissions on this point, I would not engage in a detailed Charter analysis. Suffice it to say that, at a minimum, the City’s conduct in this case complied with the principles of fundamental justice. The applicant has not demonstrated a violation of either the Bill of Rights or the Charter in the circumstances of this case. . Berentschot v. Ontario
In Berentschot v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismisses an appeal, here brought against an "order of the motion judge dismissing her action pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it was frivolous, vexatious, and an abuse of the process of the court".
Here the court considers the (essentially summary) dismissal of a Charter argument where it is weakly prepared:[23] Further, these constitutional arguments were not raised before the motion judge. No Notice of Constitutional Question was served as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 109(2) precludes the granting of constitutional relief in the absence of such notice.
[24] Moreover, there is no evidentiary record capable of supporting constitutional adjudication. Constitutional challenges generally require a proper factual foundation, particularly where legislation is alleged to be invalid or unconstitutional: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-23.
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