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Charter - Practice - Inadequately-Prepared
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
. 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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