Carter Liebzeit

A long-haul truck driver brought claims for wrongful dismissal and unpaid overtime after his employment was terminated for cause following a second failed random drug test for cannabis.

The court held that the employer's drug and alcohol policy for safety-sensitive drivers was reasonable, clearly communicated, consistently enforced, and proportionately applied, and that no duty to accommodate arose because the evidence did not establish an actual or perceived drug dependency disability.

The court further held that any overtime claim older than two years before the issuance of the claim was barred by the Limitations Act, 2002, and that the remaining overtime claim failed for lack of reliable proof.

The action was dismissed in its entirety.

The third parties brought a motion for partial summary judgment seeking dismissal of the defendant's third party claim against them in a negligence action arising from a cottage fire allegedly caused by a firepit.

Applying the factors from Malik v. Attia, 2020 ONCA 787, the court declined to permit the partial summary judgment motion to proceed.

The court found that proceeding with the motion would not reduce judicial resources already allocated for the upcoming trial, the trial was less than four months away, and there was a real risk of inconsistent findings between the motion and trial given that the third parties' liability was dependent upon causation issues to be determined in the main action.

Following the dismissal of a proposed class action regarding systemic abuse in the Canadian Hockey League, the plaintiffs brought a motion under section 7 of the Class Proceedings Act, 1992 to approve a plan to transition the proceeding into multiple joinder actions.

The court reviewed the competing Section 7 Plans submitted by the plaintiffs and defendants and found both to be procedurally flawed and overreaching.

The court proposed its own Draft Section 7 Plan designed to facilitate the commencement of up to 60 joinder actions while respecting the court's jurisdictional limits and the parties' procedural rights.

The motion was adjourned to a second phase for the parties to revise and discuss the court's draft plan.

This is a costs decision following a judgment in a complex multi-party litigation involving franchise disputes.

The court determined the quantum and scale of costs for various successful and unsuccessful claims and counterclaims.

Premium Host Inc. was awarded partial indemnity costs against Paramount Franchise Group Inc. and related entities.

Versatile Holdings Inc. and Everest Group Inc., whose claims were dismissed, were ordered to pay partial indemnity costs to the Paramount group.

The court declined to award elevated costs, reduced the defendants' claimed costs due to duplication and litigation conduct, and clarified the liability of individual guarantors for corporate litigation costs, holding them jointly and severally liable only for costs related to counterclaims where they were proper parties.

Three franchisees (Versatile, Everest, and Premium Host) sought to rescind their franchise agreements with Paramount Fine Foods under the Arthur Wishart Act, alleging the franchisor failed to provide compliant disclosure documents.

The court found that Paramount was not exempt from its disclosure obligations.

However, Versatile and Everest failed to prove on a balance of probabilities that the disclosure documents they received were fatally flawed, so their rescission claims were dismissed.

Premium Host successfully established that Paramount failed to disclose material financial information in a single document, rendering its disclosure fatally flawed.

Premium Host's rescission was deemed valid, and it was awarded statutory compensation against the franchisor and its associates, including Paramount Leasing and the Manager of Franchising.

The plaintiffs, former major junior hockey players, brought a proposed class action against the Canadian Hockey League, its three member leagues, and 60 individual teams, alleging systemic negligence, breach of fiduciary duty, and vicarious liability for widespread hazing, bullying, and abuse.

The out-of-province defendants brought a motion challenging the court's jurisdiction, which was dismissed as the court found they carried on business in Ontario.

The defendants also brought a Ragoonanan motion, which was granted because the representative plaintiffs only had personal causes of action against five of the 60 teams.

The court dismissed the certification motion, finding that the claims failed the cause of action, common issues, preferable procedure, and representative plaintiff criteria, primarily because there was no basis for collective liability among the independent teams.

However, the court utilized sections 7, 12, and 25 of the Class Proceedings Act to permit the action to continue as individual joinder actions, ordering the plaintiffs to prepare an Individual Issues Protocol.

The appellant tenant, Hudson's Bay Company (HBC), appealed a motion judge's decision regarding relief from forfeiture under s. 20 of the Commercial Tenancies Act, seeking rent abatement due to COVID-19 impacts.

The respondent landlords (Oxford and affiliates) cross-appealed the deferral of rent payments and reduction of interest rates.

The Court of Appeal dismissed HBC's appeal, affirming that s. 20 does not permit rent abatement or reduction as it would rewrite the lease.

The court allowed the landlords' cross-appeal, finding that deferrals should only be granted to allow the tenant to comply, not to mitigate economic harm, and that the interest rate should not have been varied from the lease terms.

The defendants brought a motion for security for costs against three corporate plaintiffs (former franchisees) in three related actions.

The plaintiffs argued they were impecunious and that an order would be unjust due to the defendants' delay, the existence of counterclaims, and the nature of franchise litigation.

The court found that the plaintiffs were not impecunious because their shareholders had the ability to fund the litigation.

Applying a holistic approach, the court determined it was just to order security for costs, but reduced the quantum to reflect the defendants' delay and the overlapping counterclaims.

Following a motion where the tenant successfully obtained relief from forfeiture and the landlord successfully obtained all rent arrears, both parties sought costs.

The landlord sought $300,000 based on partial indemnity and an unaccepted offer to settle, while the tenant sought $218,388 or that each party bear their own costs.

The court ordered that each party bear their own costs, noting the divided success, the withdrawal of the landlord's offer to settle prior to the hearing, and the unique and unforeseen circumstances of the COVID-19 pandemic.

The plaintiff tenant, a non-essential retailer, ceased paying rent during the COVID-19 pandemic, arguing the landlord breached the lease by failing to provide a first-class shopping centre due to government-mandated closures and restrictions.

The landlord sought to terminate the lease.

The court held that the landlord was not in breach of the lease, as it was complying with provincial laws, and the tenant was not entitled to an abatement of rent.

However, the court granted the tenant relief from forfeiture under the Commercial Tenancies Act, allowing a structured deferral of rent arrears with interest, noting the tenant's prior unblemished record and the unprecedented nature of the pandemic.

The landlord applicant sought declaratory relief regarding its ability to lease former Sears space in an Ottawa shopping mall to a bank for a call centre.

The respondent, Hudson’s Bay Company (HBC), argued its consent was required under the lease due to a material change to the mall's merchandising plan.

The court found that the proposed lease constituted a "major change to the merchandising balance of the mall" would "materially change pedestrian flow" and would "detrimentally affect the Tenant’s merchandising environment" thereby triggering HBC's consent requirement.

The court further determined that HBC had not waived its rights, had not unreasonably withheld consent, and had not acted in bad faith.

The application was dismissed with costs awarded to the respondent.

The applicant, Hudson's Bay Company, sought judicial review of a regulation that required its department stores to close during the COVID-19 pandemic while allowing big box stores that sell groceries to remain open.

The applicant argued the distinction was irrational and ultra vires the enabling statute.

The Divisional Court dismissed the application, finding that the regulation was authorized by the Reopening Ontario Act and consistent with its purpose of balancing public health measures with economic concerns.

The court held that it is not the role of the judiciary to assess the wisdom or efficacy of the government's policy choices.