Brian T. Daly

The applicant filed a Request for an Order During Proceedings to amend her human rights Application to include details about her departure from the workplace and a claim for wage loss.

Two of the respondents consented to the amendments, while the third did not respond.

The Tribunal granted the request, finding no prejudice to the respondents given the early stage of the proceedings and the lack of a scheduled hearing date.

The applicant, a school bus driver employed by the respondent First Nation, filed a human rights application alleging age discrimination.

The respondent requested deferral pending related federal proceedings, and the Tribunal raised the issue of whether the matter fell under federal or provincial jurisdiction.

The Tribunal declined to defer the application, noting the federal proceedings were on hold or conditional.

Applying the functional test, the Tribunal found that the respondent's provision of school bus services to provincial high schools was a provincial undertaking, not integral to any federal undertaking, and therefore fell under provincial jurisdiction.

The defendants brought a motion to sever the issue of the plaintiff's standing to bring the action, seeking to have it determined in advance of trial.

The plaintiff opposed the motion.

The court reviewed the principles governing bifurcation, noting that a litigant has a basic right to have all issues resolved in one trial and that severance should only be ordered in the clearest of cases.

The court dismissed the motion, finding that the issues were interconnected, severance would likely lead to appeals and delay, and the motion was brought late in the proceedings after significant resources had already been expended.

The appellants, representing members of a church congregation who voted to leave the Anglican Diocese of Huron due to theological differences, appealed a trial decision declaring that the diocese held the church property and a charitable foundation in trust for the static parish, not the departing members.

The Court of Appeal dismissed the appeal, affirming that 'parish' refers to a static entity that continues in perpetuity regardless of changes in membership, and that the departing members could not take the property with them.

The Court also allowed the diocese's cross-appeal on costs, finding that the costs judge erred in ordering each party to bear its own costs to promote harmony, and awarded $100,000 in costs to the diocese.

The applicant, Anishinabek Police Service, sought judicial review of two arbitration awards that allowed grievances regarding an unpaid suspension and subsequent termination of a First Nations Constable to proceed to arbitration.

The applicant argued that the doctrines of issue estoppel and abuse of process barred the arbitration because the constable's dismissal had already been adjudicated under the employer's Code of Conduct.

The Divisional Court dismissed the applications, finding that the adjudicator under the Code of Conduct was not exercising a statutory function and did not make a judicial decision.

Therefore, the prior adjudication did not preclude the union from pursuing grievances under the collective agreement and the Canada Labour Code.

The appellant appealed a trial judgment finding that she and her husband fraudulently conveyed their matrimonial home to her alone to defeat creditors.

The Court of Appeal upheld the trial judge's findings that the husband had acquired a beneficial interest when the property was previously transferred into joint names to secure a mortgage, and that the subsequent reconveyance to the appellant alone was intended to defeat creditors.

However, the Court allowed the appeal in part regarding interest, reducing the rate from 1% per month to the Courts of Justice Act rate of 3.3% per annum, and changing the start date.

The appellant appealed the decision of the motion judge denying an order for an oppression remedy under s. 135 of the Condominium Act, 1998.

The Court of Appeal found no basis to interfere with the motion judge's decision, noting she considered the full record, the case law, and properly exercised her discretion.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a trial judgment granting injunctive relief and recognizing an ancillary right over a right-of-way that permitted vehicular turning at 'daylight corners'.

The Court of Appeal dismissed the appeal, finding the injunctive relief was appropriate given the history of obstructions, and that the original grant of the right-of-way contained no words of limitation restricting vehicular use.

By agreement, minor amendments were made to the judgment to delete references to the appellant.

The Wikwemikong Tribal Police Service brought a motion to quash an appeal filed by a First Nations Constable from a finding of discreditable conduct.

The moving party argued that the Ontario Civilian Police Commission lacked jurisdiction to hear the appeal because First Nations Constables are explicitly excluded from the definition of 'police officer' under the Police Services Act.

The Commission agreed, finding that its statutory authority to hear appeals under section 87 of the Act applies only to police officers and complainants.

The motion was granted and the appeal was quashed.

The appellants appealed a summary judgment decision, arguing there was a genuine issue for trial regarding whether the franchisor and the respondent bank had a sufficiently close connection to make the bank responsible for the franchisor's faults.

The Court of Appeal agreed with the motion judge that no such genuine issue existed.

The appeal was dismissed with costs.

The respondents brought a Request for Order during Proceedings to strike a letter from the record.

The letter was an offer to settle the human rights complaint and was written on a without prejudice basis.

The applicant objected, arguing the privilege was hers to waive.

The Tribunal held that the letter was privileged, the privilege belonged to the respondents, and it had not been waived.

The Request for Order was granted and the letter was sealed.

The appellants appealed a trial judgment finding personal liability and interpreting a second contract as open-ended as to time.

The Court of Appeal dismissed the appeal, agreeing with the trial judge's interpretation based on the plain wording of the contract and the parties' subsequent conduct.

The appellant First Nation enacted its own labour relations code after a union was certified to represent workers at a casino located on its reserve.

The appellant argued that its code displaced the provincial Labour Relations Act based on its aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.

The Court of Appeal dismissed the appeal, finding that the appellant failed to establish an aboriginal practice, custom, or tradition that supported the right to enact a labour relations code.

The Court also held that the Crown did not breach its duty to consult and accommodate, as the appellant's claim was not sufficiently credible and the appellant had taken unilateral action.

The applicant First Nations sought judicial review to quash a Notice of Completion of an Environmental Study Report regarding the transfer of the Seaton lands by the Ontario Realty Corporation.

The applicants argued the Crown breached its constitutional and statutory duties to consult them about potential aboriginal burial sites on the lands.

The Divisional Court dismissed the application, finding no constitutional duty to consult because the applicants had surrendered their rights to the lands under the 1923 Williams Treaties.

The court also held that the statutory consultation process under the Environmental Assessment Act was procedurally fair, noting the broad nature of the assessment and the effective involvement of the Founding First Nations Circle.

The Mississaugas of Scugog Island First Nation sought judicial review of several Ontario Labour Relations Board (OLRB) decisions.

The OLRB had certified a union for employees at a casino located on the First Nation's reserve.

The First Nation subsequently passed its own Labour Relations Code and argued that it superseded the provincial Labour Relations Act, 1995, based on aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the application, upholding the OLRB's findings that it had jurisdiction to decide the constitutional question and that the First Nation failed to establish an aboriginal or treaty right to regulate labour relations.

The court also found that the OLRB's procedural rulings were not patently unreasonable.

Following a successful appeal that certified the action as a class proceeding, the Court of Appeal issued a costs endorsement.

The appellants were awarded costs throughout on a partial indemnity scale.

The Court fixed the costs for the Divisional Court at $60,000 and for the Court of Appeal at $42,500, payable forthwith by the respondents jointly and severally.

The costs of the initial certification motion were referred back to the motion judge.

The appellants, members of various First Nations, sought to bring a class proceeding against the federal government and church entities for harms suffered at the Mohawk Institute Residential School between 1922 and 1969.

The motion judge and Divisional Court denied certification.

The Court of Appeal allowed the appeal, finding that the criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were met, including identifiable classes, common issues such as systemic negligence and breach of fiduciary duty, and the preferability of a class action.

The employer, Great Blue Heron Gaming Company, and the Mississaugas of Scugog Island First Nation brought motions to stay a decision of the Ontario Labour Relations Board (OLRB) pending judicial review.

The OLRB had determined that the Ontario Labour Relations Act applied to the employer's casino operations on the reserve, rejecting the First Nation's argument that its own Labour Code applied pursuant to aboriginal rights under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the stay motions, finding that while there was a serious issue to be tried, the applicants failed to demonstrate irreparable harm, and the balance of convenience favoured allowing collective bargaining to proceed for the 800 employees who had voted for union representation over a year prior.

The applicant First Nation brought a motion to stay proceedings before the Ontario Labour Relations Board pending judicial review.

The applicant challenged the Board's jurisdiction to decide constitutional questions regarding the applicability of labour laws to aboriginal persons.

The Divisional Court dismissed the motion, finding that the applicant failed to establish a strong prima facie case that the Board lacked jurisdiction, as the Board has the concomitant jurisdiction to decide constitutional questions arising from its power to determine questions of law.

The Court also reiterated its practice of refusing to fragment administrative proceedings absent extraordinary circumstances.

The appellants sought to certify a class action against the federal government and others for alleged systemic physical, emotional, spiritual, and cultural abuse at a residential school operated between 1922 and 1969.

The motion judge dismissed the certification application, finding that a class proceeding was not the preferable procedure due to the highly individualized nature of the claims and the necessity of separate inquiries for each student.

The Divisional Court dismissed the appeal, upholding the motion judge's conclusion that the resolution of common issues would not significantly advance the litigation and that individual actions were the preferable alternative.