Daniel Sheppard

This appeal concerned whether public school teachers are protected from unreasonable search and seizure by section 8 of the Canadian Charter of Rights and Freedoms when the search is performed in the workplace by their employers.

The case involved a school principal reading and taking screenshots of a private, password-protected log maintained by two teachers on their personal Google account, accessed via a workplace laptop, which was then used by the school board for disciplinary action.

The Court of Appeal found that the labour relations arbitrator and the Divisional Court erred in their interpretation and application of section 8, concluding that the teachers had a reasonable expectation of privacy in their log, which was violated by the principal's actions.

The appeal was allowed, and the arbitrator's award was quashed.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The applicants challenged the constitutionality of amendments to the Election Finances Act that imposed a 12-month pre-writ restricted spending period for third-party political advertising.

The government had previously enacted similar amendments that were struck down under section 2(b) of the Charter, but re-enacted them using the section 33 notwithstanding clause.

The applicants argued the amendments violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.

The court dismissed the application, finding that the spending limits were carefully tailored to the egalitarian model of elections and did not infringe the right to meaningful participation in the electoral process.

This was a costs endorsement following a successful constitutional application challenging provisions of election finance legislation under s. 2(b) of the Charter.

The court held that partial indemnity remained the appropriate scale because the respondent government's conduct was professional and did not justify substantial or full indemnity costs.

In fixing a fair overall award, the court emphasized that four applicant groups had advanced identical legal challenges in a consolidated proceeding, and that economies of scale had to be reflected in the result.

The court reduced the aggregate request from approximately $690,000 to $500,000 and apportioned that amount among the successful applicants.

No costs were awarded for or against the Chief Electoral Officer or the intervenor.

The applicants challenged the constitutionality of amendments to the Election Finances Act that extended the pre-election restricted spending period for third-party political advertising from six to twelve months.

The court found that the 12-month restriction infringed freedom of expression under section 2(b) of the Charter.

Applying the Oakes test, the court held that while the objective of fostering fair elections was pressing and substantial, the 12-month period failed the minimal impairment test because the government's own experts indicated a six-month period was effective.

The impugned provisions were declared of no force or effect.

The applicants in a constitutional application requested leave to file factums exceeding the 30-page limit prescribed by the Practice Direction.

The Attorney General opposed the request.

The court denied the request, emphasizing that the 30-page limit is a serious policy intended to focus counsel on the issues, and that leave is exceptional and granted sparingly.

The court noted that since there was still a week before the factums were due, counsel had sufficient time to produce shorter, more focused versions.

The applicant, a unionized employee, sought judicial review of an arbitration award that settled his human rights grievance for $31,000, an amount he argued was inadequate.

The respondent union, supported by the employer, brought a motion to quash the application.

The Divisional Court granted the motion, finding that the applicant's complaints amounted to an allegation that the union breached its duty of fair representation, a matter within the exclusive jurisdiction of the Ontario Labour Relations Board.

Furthermore, the court held that the applicant lacked standing to seek judicial review of the arbitration award, as he did not fall within the narrow exceptions permitting individual employee standing.

Following an order to merge two local unions into a larger local, the former locals attempted to amend their trust and building corporation documents to distribute assets pro rata to their members rather than transferring them to the merged local.

The court found these actions were taken without authorization, violated the union's constitution, and constituted a breach of fiduciary duty by the trustees and directors.

The court declared the amendments null and void, imposed a constructive trust, and ordered the assets transferred to the merged local.

The appellant appealed a motion judge's decision dismissing his action in the Ontario Superior Court on the basis that the Canada Industrial Relations Board has exclusive jurisdiction over his claim.

The appellant sought redress for union disciplinary actions taken against him following his allegations of financial and procedural improprieties within the union.

The Court of Appeal upheld the motion judge's decision, finding that the essential character of the claim fell within the exclusive jurisdiction of the Canada Industrial Relations Board under the Canada Labour Code.

Three proposed interveners (Grand Council of Treaty 3, Justice for Children and Youth, and HIV/AIDS Legal Network/Clinic) sought leave to intervene in a judicial review application challenging the Ontario government's directive to revert to the 2010 elementary school curriculum.

The court granted leave to all three proposed interveners, finding that they each had a substantial and identifiable interest in the subject matter, possessed special expertise, and would provide a useful and distinct contribution to the resolution of the Charter issues raised in the main application without causing injustice or undue delay.

The Attorney General of Ontario appealed a Superior Court decision that declared provisions of Bill 5 (Better Local Government Act, 2018) unconstitutional for violating freedom of expression rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.

Bill 5 reduced Toronto's municipal wards from 47 to 25 mid-election.

The application judge found that the mid-campaign change substantially interfered with candidates' ability to communicate their political messages and violated voters' right to effective representation.

The Court of Appeal granted a stay of the lower court's order pending appeal, finding a strong likelihood that the application judge erred in law and that the appeal would succeed.

The court held that Bill 5 does not limit or restrict candidates' messages and that the right to effective representation falls under s. 3 (democratic rights), not s. 2(b) (freedom of expression), and s. 3 does not apply to municipal elections.

An appeal concerning when an international commercial arbitration award becomes "binding" on the parties for purposes of judicial recognition and enforcement under the UNCITRAL Model Law.

The appellants obtained an arbitration award from a rabbinical court in New York for significantly less than sought.

After unsuccessfully applying to set aside the award, they sought recognition and enforcement.

The respondents opposed on the ground that the award had not yet become binding because they intended to pursue further issues before the arbitral tribunal.

The application judge dismissed the recognition application.

The Court of Appeal allowed the appeal, holding that the award was binding and should be recognized and enforced.

The court clarified that the potential jurisdiction of the arbitrator to entertain new issues about post-award events does not affect the binding nature of the award.

The appellant physician appealed a two-month suspension imposed by the Discipline Committee of the College of Physicians and Surgeons.

The appellant argued the penalty was outside the range of comparable cases and that the Committee failed to conduct a proper parity analysis.

The Divisional Court dismissed the appeal, finding the penalty was reasonable, within the range of prior decisions, and justified by the pervasive and systemic nature of the misconduct which exposed patients to a risk of serious harm.

The applicant sought judicial review of an Information and Privacy Commissioner order requiring the disclosure of commercial benchmarking data provided to the Treasury Board Secretariat.

The applicant argued the adjudicator misapprehended evidence and applied too high a standard of proof for the third-party records exemption under s. 17(1) of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the application, finding the adjudicator reasonably concluded the applicant failed to demonstrate a reasonable expectation of probable harm to its competitive position if the redacted information was disclosed.

The interested parties appealed a motions judge's order requiring them and the garnishee, Vale Canada Limited, to produce contracts and assignment documents for an upcoming garnishment hearing.

The plaintiffs had obtained a default judgment against the defendant and sought to garnish amounts owed by Vale, alleging that the defendant had invalidly assigned its contracts to the interested parties to avoid garnishment.

The Divisional Court dismissed the appeal, finding that the motions judge properly exercised his discretion under Rule 60.08(16) of the Rules of Civil Procedure to order production of documents relevant to determining the rights and liabilities of the parties at the garnishment hearing.

The applicants sought an order recognizing and enforcing an arbitral award of $400,000 made by a religious arbitral tribunal (Beth Din).

The respondents opposed, arguing the award was not yet binding as the tribunal had indicated a willingness to consider additional issues regarding costs and damages.

The court dismissed the application, finding that the arbitration process was not yet complete and the tribunal was not functus officio, applying the competence-competence principle to defer to the tribunal's jurisdiction.

The offender pleaded guilty to attempted possession of child pornography.

He was a 57-year-old single parent of a 12-year-old adopted son with special needs, employed as a chartered accountant in the Ontario Public Service for 24 years.

At his workplace in May 2014, cyber security detected attempts to access pornographic websites, including some with references to minors.

A search of his home revealed chat logs of online conversations with sexual content involving children.

The Crown sought six months custody; the defence sought 30 days served intermittently.

The court imposed 37 days intermittent custody followed by three years probation with extensive conditions, considering the offender's lack of criminal record, genuine remorse, low risk assessment, and the impact on his dependent son.

The parties submitted a dispute to arbitration by a Rabbinical Court.

During the proceedings, the panel met ex parte with a previous arbitrator without notice to the parties, breaching the agreed-upon procedure.

The appellant discovered this and sent his own ex parte communication to the panel.

The application judge found a procedural breach under art. 34(2)(a)(iv) of the UNCITRAL Model Law but exercised her discretion not to set aside the award, citing factors including the appellant's own ex parte conduct and the lack of actual prejudice.

The Court of Appeal dismissed the appeal, holding that the application judge properly balanced the relevant factors to determine whether the breach caused real unfairness or practical injustice.

The applicant applied for judicial review of the Minister of Justice's decision to maintain an order surrendering her for extradition to the United States on drug trafficking charges.

The applicant argued that the Minister failed to adequately consider her role as the sole caregiver to her young child, the differences in sentencing regimes between Canada and the US (such as the Mother-Child Program), and international human rights jurisprudence.

The Court of Appeal dismissed the application, finding that the Minister had fully considered the applicant's personal circumstances, the potential impact on her child, and the relevant legal principles, and that his decision was not unreasonable.

The applicants sought to set aside an international commercial arbitration award arising from a failed commercial real estate relationship.

The court held that the arbitration agreement did not bar recourse under Article 34 of the Model Law where mandatory procedural protections and public policy were engaged.

The arbitral tribunal's undisclosed meeting with a prior adjudicator without notice to the parties breached the parties' arbitration agreement and met the threshold for potential relief under Article 34(2)(a)(iv).

However, weighing the seriousness of the breach against prejudice, waiver-related conduct, and the practical consequences of setting aside the award, the court exercised its discretion not to disturb the award.