Alison McEwen

The applicant employer sought judicial review of a labour arbitration award that denied its right to recover wage overpayments made to employees due to a mistake of fact.

The arbitrator had found that the union established the defence of estoppel and that the collective agreement provision relied on the employer only governed the process for recovery, not the absolute entitlement to it.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement was reasonable and that labour arbitrators have flexibility in applying equitable doctrines like estoppel without requiring a formal, detailed analysis of every component.

The applicant union sought judicial review of an arbitration award that upheld the employer's random drug testing policy for safety-sensitive positions at the airport.

The Divisional Court found the arbitrator's decision unreasonable because it departed from established arbitral jurisprudence without justification.

Specifically, the arbitrator upheld the policy without any evidence of a workplace drug problem at the airport, relying instead on evidence from a different case involving a different workplace.

The application for judicial review was granted, the award was set aside, and the grievance was remitted to a new arbitrator.

The applicant sought judicial review of an arbitration award that dismissed a grievance concerning the employer's refusal to pay a bilingual bonus to part-time indeterminate employees working temporarily in bilingual positions.

The Divisional Court applied the reasonableness standard of review.

The Court found that the arbitrator's reliance on past practice and the specific wording of the collective agreement regarding the bilingual bonus was reasonable.

The application for judicial review was dismissed with costs awarded to the employer.

The plaintiffs (taxicab drivers and their union) sought an interlocutory injunction against Uber drivers to enforce a City by-law, which was denied.

This endorsement addresses the costs of that unsuccessful injunction motion.

The court awarded partial indemnity costs of $60,000 plus HST and disbursements to the successful Uber drivers, payable forthwith, considering the complexity and importance of the matter, the intense work required to respond to an injunction, and the applicants' sophistication.

The moving party university brought a motion to set aside a decision of a single judge of the Divisional Court who refused to strike an affidavit filed by the responding party association on an application for judicial review of a labour arbitration award.

The arbitration upheld the termination of a professor for failing to grade students objectively.

The Divisional Court panel found that the motions judge erred in law by admitting the affidavit, as it did not meet the narrow Keeprite exception for admitting new evidence on judicial review.

The motion was granted and the affidavit was struck in its entirety.

Licensed taxicab drivers and their union brought a motion for an interlocutory injunction to restrain Uber drivers from operating in Ottawa, alleging breaches of the City's taxi by-law and various economic torts.

The court found that while one taxicab driver had standing as a ratepayer and there was a serious issue to be tried, the plaintiffs failed to establish irreparable harm, as their alleged economic losses could be quantified in monetary terms.

Furthermore, the balance of convenience did not favour an injunction, given the plaintiffs' delay, their private financial interest, and the City's pending policy review of ridesharing services.

The motion for an injunction was dismissed.

Following a motion in a labour dispute concerning airport picketing activity, the court addressed the issue of costs.

The moving parties sought relief relating to noise-making during picketing or relocation of picketers closer to airport entrances, but the motion was largely unsuccessful.

Although the court vacated certain trespass notices and relocated the picketers to a more visible area, it found that the plaintiff achieved the more favourable result and incurred significant costs responding to the motion.

The court was particularly critical of false statements made in an affidavit by one of the moving parties, which required cross-examination and additional evidence to refute.

Costs were awarded to the plaintiff on a partial indemnity basis.

The plaintiffs were wholly successful on a motion brought by the defendants regarding claims of privilege over certain documents and seeking the removal of the plaintiffs' counsel of record.

The plaintiffs sought full indemnity costs of $53,871.81.

The court found that while the plaintiffs were successful, they should have brought the motion to determine privilege themselves rather than forcing the defendants to do so.

The court declined to award substantial indemnity costs, finding the amount claimed disproportionate, and fixed costs at $25,000 plus HST and disbursements.

Union members subject to an injunction restricting protest activity at an international airport brought a motion to clarify or vary the existing order.

The dispute concerned whether drumming and other loud noise-making during picketing violated the injunction and whether trespass notices issued to certain union members were valid.

The court found the noise created a nuisance interfering with airport operations and safety obligations, particularly the ability to communicate during emergencies.

The injunction was varied to relocate picketers to a designated grassy area near the parkade and to prohibit the use of drums, improvised percussive devices, or amplification devices on airport premises.

Trespass notices issued to several individuals were ordered withdrawn.

The defendants brought a motion seeking a declaration that certain inadvertently disclosed documents were subject to solicitor-client or litigation privilege, their return, and the removal of the plaintiffs' counsel of record.

The plaintiffs, former executives of the defendant organization suing for wrongful dismissal, argued that common interest privilege applied to the legal advice they received alongside the board of directors.

The court found that common interest privilege applied to the majority of the disputed communications and that privilege had been waived for others.

The motion to remove the plaintiffs' counsel was dismissed as grossly disproportionate, given that only one minor redaction was required and no prejudice was shown.

RCMP members challenged federal wage restraint measures, arguing that rollback of agreed wage increases without prior consultation violated freedom of association under s. 2(d) of the Charter.

The majority held the Expenditure Restraint Act did not substantially interfere with the existing consultation process and dismissed the appeal, while a dissent found unconstitutional unilateral interference.