Alexander D. Kurke

The applicant union sought judicial review of four Ontario Labour Relations Board decisions that dismissed its application for certification of a construction industry bargaining unit.

The applicant argued the Board unreasonably refused to order a representation vote and lacked discretion to dismiss the application under s. 128.1(13) of the Labour Relations Act, 1995.

The Divisional Court dismissed the application, finding the Board reasonably concluded that the applicant did not wish to represent the appropriate province-wide bargaining unit and that determining employee support was impossible due to the passage of time caused by the applicant's litigation strategy.

The Court held the Board reasonably interpreted s. 128.1(13) as conferring discretion to dismiss an unmeritorious application to avoid leaving it in limbo.

The moving party sought leave to appeal an earlier order.

The Divisional Court granted leave to appeal, but restricted it solely to issues concerning COVID-19 vaccination.

The court recommended the appeal be heard alongside a related case and ordered the responding party to pay costs of $4,500.

The moving party sought leave to appeal an order and a costs order made by the lower court.

The Divisional Court dismissed the motion for leave to appeal.

No costs were awarded on the leave motion.

The moving party sought leave to appeal an order of Fraser J. The Divisional Court granted leave to appeal, but restricted it solely to issues concerning COVID-19 vaccination.

The court recommended the appeal be heard alongside a related case and awarded costs of $2,500 to the moving party.

The moving party brought a motion for leave to appeal the order of I.R. Smith J. dated February 25, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs in the amount of $5,000.

The moving parties brought a motion for leave to appeal the order of D.L. Edwards J. dated February 4, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs in the amount of $2,700 all inclusive.

The applicant union sought judicial review of an arbitration award that dismissed its grievance regarding the employer's use of key performance indicators (KPIs) to determine eligibility for a telework program during the COVID-19 pandemic.

The arbitrator had found that Letter of Understanding No. 11 (LOU 11) of the collective agreement, which governed monitoring and measurement, did not apply.

The Divisional Court held that the arbitrator's interpretation was unreasonable, as it failed to account for the plain wording of LOU 11 and the fact that KPIs are a form of measurement.

The award was quashed and the matter remitted for a new hearing before a different arbitrator.

The accused was tried on a 5-count indictment involving his former intimate partner, including charges of sexual assault, assault, criminal harassment, intimidation, and breach of probation.

The court applied the W.(D.) test to assess credibility, finding the accused's evidence unreliable and contrived.

While the court acquitted the accused of sexual assault due to reasonable doubt arising from inconsistencies and lack of detail in the complainant's evidence, it convicted him on the remaining counts.

The court found the accused frequently physically assaulted the complainant, engaged in threatening conduct that reasonably caused her fear, and attempted to intimidate her by threatening to call immigration authorities to have her deported.

On a Crown evidentiary motion in a jury trial for historical sexual offences, the court considered whether prior discreditable conduct evidence concerning physical abuse of a corroborating witness was admissible.

Applying the balancing framework for extrinsic misconduct evidence, the court held that the evidence was relevant and material because it provided necessary context for assessing the witness’s credibility, reliability, fear, and inaction in relation to the complainant.

The probative value outweighed the prejudicial effect, particularly with limiting instructions and controlled questioning.

The motion was granted in part, but the Crown was prohibited from leading evidence of severe physical sequellae absent later leave.

The moving party sought to review an order of a single Divisional Court judge that dismissed her request for interim relief to be restored to leased premises pending her appeal.

The Landlord and Tenant Board had previously found she was not a tenant.

The Divisional Court panel held that the motion judge applied the correct legal test for interim relief, made no palpable and overriding error of fact, and reasonably balanced the interests of the parties by expediting the appeal and prohibiting the landlord from re-leasing the premises.

The motion to review was dismissed.

The moving party sought leave to appeal an order of MacLeod R.S.J. dated October 20, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $2,500 to the responding party.

The applicant sought judicial review of an Ontario Labour Relations Board decision terminating his duty of fair representation complaint against his union.

The applicant alleged the union failed to assist him with WSIB claims and a constructive dismissal dispute.

The Divisional Court dismissed the application, finding the Board's decision reasonable as the duty of fair representation does not extend to WSIB matters and the applicant had not sought the union's assistance regarding his termination.

The Court also found no breach of procedural fairness or Charter rights.

The plaintiff corporation brought an action alleging conspiracy, fraud, and negligence against various defendants, including a law firm and the Ontario Provincial Police, arising from the transfer of a property following a power of sale.

The remaining defendants moved to strike the statement of claim under Rule 21.01(1)(b).

The court granted the motions, finding that the pleadings lacked the heightened particularity required for allegations of fraud and conspiracy, and failed to establish any duty of care owed by the police or the law firm to the plaintiff.

Furthermore, the claim against the police was a nullity due to the plaintiff's failure to provide the mandatory 60 days' written notice under the Proceedings Against the Crown Act.

Leave to amend was denied as the fundamental defects could not be cured.

The applicant sought judicial review of an Ontario Parole Board decision suspending her parole and issuing a Canada-wide arrest warrant.

The applicant had continued to report to her parole officer for months after the suspension, unaware of the warrant, and was even told she had successfully completed her sentence.

The Divisional Court found exceptional circumstances justifying early intervention despite the usual requirement to exhaust administrative remedies.

The Court held that the Board breached its duty of procedural fairness by failing to effectively notify the applicant's parole officers of the suspension, and quashed the decision and related warrants.

Two applications were brought to determine the boundary between properties in Lot 16, Concessions 9 and 10 in the Township of Gordon.

The applicant Walker claimed ownership based on mathematical survey lines, while the respondents and the applicant Bainborough argued that an antique fence marked the true boundary.

The court applied the hierarchy of boundary evidence, finding that the historical fence, which had been accepted by previous landowners for decades, was the best evidence of the original boundary.

The court also found that Walker's claim was statute-barred under the Real Property Limitations Act.

Walker's application was dismissed, and the fence was declared the true boundary.

Following a judge-alone criminal trial on a 16-count indictment alleging sexual offences, internet luring, communicating for the purpose of obtaining sexual services from underage persons, and threats involving multiple teenage complainants, the court conducted a detailed credibility analysis and applied the principled hearsay exception to admit part of a non-testifying child complainant's statement.

The court found necessity and threshold reliability established for the written statement and the pre-writing portion of the videotaped interview, but excluded the later police-led questioning.

The court also admitted limited similar act evidence to assist with identification of the user of social media accounts and with proof of certain allegations.

The accused was convicted on counts 2, 3, 7, 8, 9, 12, 13, and 16, with count 11 withdrawn and the remaining counts dismissed.

The applicant school board sought judicial review to quash clauses 10(2)(i) and (ii) of O. Reg. 20/98 under the Education Act as ultra vires.

The impugned regulations restrict the availability of education development charges (EDCs) to circumstances where a school board does not have board-wide surplus capacity.

The applicant argued this undermined the purpose of the EDC regime, which is to ensure growth pays for growth.

The Divisional Court dismissed the application, finding the regulations were consistent with the statutory grant of authority and the broader scheme of the Education Act, which includes strict financial oversight and efficient use of education funds.

Powerhouse Corporation appealed a Licence Appeal Tribunal (LAT) decision granting it a liquor licence but imposing a condition prohibiting outdoor amplified music at its Cabana pool bar.

The City of Toronto cross-appealed, arguing the licence should have been refused entirely because Powerhouse's application was an abusive attempt to circumvent existing noise conditions on the venue's prior licence.

The Divisional Court dismissed both appeals.

The Court held the LAT correctly interpreted its limited jurisdiction under s. 6(2)(h) of the Liquor Licence Act and properly applied an objective standard to assess noise disturbances affecting Toronto Island residents.

The Court also rejected Powerhouse's procedural fairness arguments regarding an incomplete hearing transcript and alleged lack of notice.

The appellant property owner entered into a contract with the respondent builder for the construction of a luxury home, paying a $3.8 million non-refundable deposit.

After the appellant failed to pay over $10.4 million in interim invoices, the respondent obtained summary judgment.

The appellant appealed solely on the issue of whether the deposit should be credited against the judgment.

The Divisional Court dismissed the appeal, holding that the deposit was intended to secure completion of the contract and was forfeit due to the appellant's breach, rather than acting as a prepayment for interim invoices.

The applicant employer sought judicial review of a labour arbitration award finding it breached the collective agreement by transferring work to a different geographic location.

The employer argued the arbitrator unreasonably interpreted the scope of the 'Work of the Bargaining Unit' clause and failed to find that bargaining unit members were deprived of overtime.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement was reasonable based on its express wording and context.

The Court also found the arbitrator made the requisite factual finding regarding the deprivation of overtime, which was owed deference.