Brent J. Foreman

This decision addresses the costs following the dismissal of the plaintiff TCA's claim against the defendant Art Gallery of Hamilton (AGH) after a five-day trial.

The AGH, as the successful party, sought partial indemnity costs of $94,152.91.

The plaintiff opposed, arguing for a denial or significant reduction of costs due to proportionality concerns, excessive fees, and "over-lawyering" by the AGH's counsel.

The court found the AGH's claimed fees to be excessive and disproportionately high given the modest nature and complexity of the dispute, and that the involvement of multiple lawyers in nearly every step was unreasonable.

The court fixed the AGH's costs at $62,000, inclusive of fees, disbursements, and taxes, specifically excluding costs for a contested motion regarding undertakings.

The plaintiff architectural firm sued the defendant art gallery for $68,970.14 in unpaid fees for services rendered pursuant to an alleged oral contract.

The plaintiff claimed it was retained to complete architectural design services for a grant application and future expansion plans.

The defendant argued the agreement was limited to assisting with the grant application for a $3,000 honorarium, which had been paid.

The court found that the contract was limited to the grant application for the agreed honorarium.

The court also dismissed the plaintiff's alternative claims based on implied acceptance and quantum meruit, finding no evidence that the defendant used the work for anything other than the grant application.

The action was dismissed.

The respondent filed a Request for an Order During Proceedings seeking to amend its Response to the Application of Mr. Burmaster.

The applicant consented to the request, provided he could refer to the initial draft at the hearing.

The Tribunal granted the request, finding no prejudice to the applicants and noting that the hearing was still months away.

The applicant filed a human rights application alleging discrimination in housing due to the condominium corporation's failure to provide ramped access to her unit and flexibility in parking rules.

She requested an interim remedy to halt the pouring of concrete for walkways until an agreement on accessibility modifications was reached.

The Tribunal denied the request, finding that the planned concrete work would not prevent the future construction of ramps and that an interim remedy was not necessary to ensure an effective final remedy.

The respondent filed a request for an order directing the applicant to provide additional materials, including curriculum vitae for her treating physician and physiotherapist, and more detailed witness statements.

The Tribunal found that the applicant's witness statements lacked sufficient detail and ordered her to provide amended statements with particulars of the alleged incidents and proposed accommodations.

The Tribunal also ordered the production of the requested curriculum vitae, as the applicant did not oppose the request or argue the materials were irrelevant.

The applicant filed a human rights application alleging discrimination based on disability after being denied a volunteer opportunity at a withdrawal management centre.

The applicant named both St. Leonard's Community Services and Brant Community Healthcare System (BCHS) as respondents.

BCHS filed a request to be removed as a respondent, arguing it had no role in the operation of the centre.

The applicant agreed in writing that BCHS was not a proper respondent and did not oppose the request.

The Tribunal granted the request and ordered BCHS removed as a respondent.

The appellant was successful on appeal and cross-appeal and sought partial indemnity costs of approximately $30,000.

The Divisional Court found the claimed hours and rates disproportionately high and fixed the costs of the appeal at $17,500 all inclusive.

The court declined to exercise its jurisdiction to award costs of the trial, leaving that determination to the trial judge or an assessment officer due to a prior reservation of jurisdiction and a dispute over an agreement between counsel.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability.

The respondent requested dismissal on the preliminary basis that it is a federally regulated telecommunications undertaking outside provincial jurisdiction.

Finding that the jurisdictional facts were in dispute, the Tribunal ordered an in-person preliminary hearing to receive viva voce evidence and argument on the constitutional issue.

The applicant filed an application alleging discrimination in employment and vocational association membership based on race, disability, age, record of offence, and reprisal.

At the hearing, the applicant was emotionally overwrought and ultimately declined to testify or be cross-examined.

Following the testimony of the applicant's daughter and husband, the respondents argued that a prima facie case had not been established.

The applicant's representative conceded this point, and the Tribunal dismissed the application.

The applicant, a single father, alleged discrimination on the basis of sex after being denied participation in a recreation and support program designed for single mothers and their children.

The respondents argued the program was a special program protected by s. 14(1) of the Human Rights Code.

The Tribunal found that the program was designed to relieve the economic and social disadvantage experienced by single mothers and that admitting men would negatively impact the group dynamics, particularly regarding discussions of male violence.

The Tribunal concluded the program was a protected special program and dismissed the application.

The plaintiff insurance brokerage sued a former producer for breach of contract, breach of fiduciary duty, and tortious interference, claiming damages for commissions earned by the defendant after she joined a competing firm.

The defendant counterclaimed for reimbursement of unpaid premiums that the plaintiff had deducted from her earnings.

The court found that the plaintiff's unilateral imposition of a charge-back policy for unpaid premiums was a breach of contract, entitling the defendant to reimbursement.

However, the court also found that the defendant breached a valid non-solicitation clause by accepting business from the plaintiff's former clients, requiring her to disgorge the commissions earned.

The court dismissed the plaintiff's claim for breach of fiduciary duty, finding the defendant was not a key employee.

The applicant, a former live-in superintendent, alleged that his employer discriminated against him on the basis of disability by altering his employment perks, demanding rent, and ultimately terminating his employment while he was on long-term disability.

The Tribunal found that the changes to his perks and the demand for rent were the result of new management enforcing strict rules, not discrimination.

Furthermore, the Tribunal held that the employer did not fail to accommodate the applicant, as the medical evidence indicated he was totally disabled with no prognosis for a return to work, thereby frustrating the employment contract.

The application was dismissed.

The applicant filed human rights applications against his former employer and his union, alleging disability-based discrimination and a failure to represent him.

The respondents brought motions to dismiss the applications on a preliminary basis.

The Tribunal dismissed the application against the union, finding the applicant failed to establish a prima facie case as he only alleged the union failed to act, without any factual basis for discriminatory conduct.

The Tribunal dismissed the employer's motion, finding that a prior settlement before the Ontario Labour Relations Board only resolved unfair labour practice complaints regarding vacation pay and insubordination, and did not address the substance of the human rights complaint.

The applicant sought an urgent injunction to allow a student to attend a school prom after the principal denied him the privilege following a 10-day suspension.

The applicant argued the denial was an uncommunicated extension of the suspension and thus reviewable.

The Divisional Court dismissed the application, holding that attending a prom is a privilege, not a legal right, and the principal's decision was not a statutory power of decision capable of judicial review.

Even if reviewable, the court found the principal's decision was reasonable.

The union applied for certification and filed an unfair labour practice complaint alleging the employer terminated two employees for their union organizing activities.

The Board found that the employer's owner and his brother made threats of closure and job loss if the union was successful, and subsequently terminated one employee and constructively dismissed another due to anti-union animus.

Given the severity of the employer's breaches of the Labour Relations Act, the Board concluded that the true wishes of the employees were not likely to be ascertained in a representation vote.

The Board exercised its discretion under section 8 of the Act to certify the union without a vote.

The complainant alleged that the union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to pursue her grievance regarding her seniority upon transferring into the bargaining unit.

The union had obtained a legal opinion and determined that pursuing the grievance would negatively impact the seniority rights of other bargaining unit members.

The Board found that the union did not act arbitrarily, discriminatorily, or in bad faith, as it reasonably interpreted the collective agreement and balanced the competing interests of its members.

The complaint was dismissed.

The applicant union applied for certification.

During the hearing, it was revealed that the union's business agent had signed the receipt portion of two membership cards despite not being the actual collector of the initiation fees, and subsequently signed a Form 9 Declaration without noting any exceptions.

The Board found that the union representative had knowingly made a false representation to the Board.

Given the strict standards for membership evidence and the necessity of complete disclosure on Form 9, the Board declined to give any weight to the membership evidence and dismissed the application.