Dan J. Shields

The plaintiff, EllisDon Residential Inc., sought an injunction against Limen Group Const. (2019) Ltd. to resume work and against Defendant Unions for inducing breach of contract and interfering with economic relations.

The defendants argued the Ontario Labour Relations Board (OLRB) had exclusive jurisdiction over the dispute.

The court applied the Weber test, finding the essential character of the dispute related to labour relations and the interpretation of collective agreements, falling within the OLRB's exclusive jurisdiction.

The court dismissed the injunction motion and stayed the action, deferring to the OLRB.

In a civil procedure appeal, the appellants challenged orders permitting amendment of a statement of claim through a representation order after expiry of a limitation period.

The central issue was whether the order improperly added parties or merely corrected the naming of the legal entity represented by previously named individuals.

A majority held the request was properly treated as correction of a misnamed party, with members having notice before the limitation deadline and no demonstrated prejudice after extensive participation in the litigation.

The appeal was dismissed, with one dissenting judge who would have allowed it.

An appeal of a wrongful dismissal judgment where the trial judge awarded an investment banker 18 months' reasonable notice damages following his dismissal without cause due to the closure of his employer's Mergers & Acquisitions division.

The principal issue on appeal concerned whether damages should include the deferred portions of the employee's bonus (60% of annual bonuses paid as notional shares that would vest over time).

The appellants also challenged the trial judge's awards for vacation pay, prejudgment interest, and costs.

The Court of Appeal upheld the trial judge's decision in all respects.

The appellants, representing a local union, appealed a trial judgment that dismissed their claims for breach of fiduciary duty and breach of confidence against former union employees who left to form a competing union.

The respondents cross-appealed the trial judge's finding that they breached their duty of loyalty by soliciting union stewards before resigning, and the damages awarded for that breach.

The Divisional Court upheld the trial judge's findings on liability, concluding that the former business manager was not a fiduciary and that the employees breached their duty of loyalty by competing while still employed.

However, the court allowed the cross-appeal on damages, reducing the awards to nominal damages of $500 per employee because the union failed to prove the breach caused actual financial loss.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing her complaint that the respondent union breached its duty of fair representation.

The applicant had been terminated by her employer, and an arbitrator upheld the termination after a five-day hearing.

The Board found the union did not act arbitrarily in refusing to seek judicial review of the arbitrator's decision.

The Divisional Court held that the Board's decision was reasonable and dismissed the application for judicial review.

The respondent brought an action for wrongful dismissal against a union local and its directors.

The union pleaded that section 3(2) of the Rights of Labour Act precluded it from being named as a party.

After the limitation period expired, the union moved to dismiss the action on this ground.

The motion was dismissed.

The respondent then successfully moved for a representation order allowing individual defendants to defend on behalf of union members.

The appeal addressed whether an action improperly naming a union could be amended after the limitation period expired by obtaining a representation order.

The majority held that the action was not a nullity and that the representation order could be granted as a correction of the party's name under the Rules of Civil Procedure.

The dissent argued that section 3(2) created an absolute statutory requirement for a representation order and that the majority's approach created unacceptable uncertainty in the law.

The plaintiff brought a motion for a representation order under Rule 12.07 to amend the statement of claim, adding the individual defendants as representatives of all members of the defendant trade union.

The defendants argued this would improperly add parties after the expiry of the limitation period.

The court found the motion was an attempt to correct an error in the title of proceedings under Rule 5.04, not to add new parties, as the union had been a party from the outset.

The court granted the representation order, noting the defendants' delay in bringing their own Rule 21 motion and the lack of prejudice.

The plaintiff's motion was dismissed, leading to this costs endorsement.

The defendants, Kiewit Alarie A Partnership and Electrical Power Systems Construction Association, sought costs.

The court awarded costs of $4,000 to KAP and $2,000 to EPSCA, all inclusive, payable within 30 days.

The court rejected the plaintiff's arguments for no costs or delayed payment, finding the underlying motion to be without legal foundation, premature, and an abuse of process, and that it unnecessarily delayed proceedings.

The plaintiffs, having achieved partial success against individual "HOPE defendants" for breach of loyalty but failing entirely against "Carpenter defendants" for interference with economic interests, sought substantial costs.

The defendants, having largely succeeded, proposed the plaintiffs pay a portion of their costs or that each party bear their own.

The court, emphasizing proportionality and the modest damages awarded against the HOPE defendants, ordered that each party bear their own costs, finding this outcome to be fair and proportionate given the complex "turf warfare" between unions and the disparate success against different defendant groups.

The Plaintiff brought a motion to strike supplementary affidavit evidence filed by the Responding Defendants in their summary judgment motion.

The Plaintiff argued that the supplementary affidavits were improper under the Rules of Civil Procedure, specifically Rule 39.02, as they were filed after a Rule 39.03 examination had commenced.

The Defendants contended that Rule 39.02 was not violated because the affidavits were not filed after a cross-examination on the Plaintiff's affidavit, and a Rule 39.03 examination is a form of primary evidence to which reply affidavits are permissible.

The court accepted the Defendants' position, finding that a Rule 39.03 examination is distinct from a Rule 39.02 cross-examination and does not preclude the filing of reply affidavits.

The Plaintiff's motion was dismissed.

The plaintiff union sued former employees and officials associated with a rival union following the creation of a new local that successfully organized workers previously represented by the plaintiff.

The plaintiffs alleged breaches of fiduciary duty, breach of employee duties of loyalty and confidentiality, and unlawful interference with contractual relations.

The court held the principal departing employee was not a fiduciary and that most information used in the organizing campaign was either public or not proven to have been misused.

However, several former employees breached basic duties of loyalty by preparing and initiating a competing organizing campaign before resigning and by failing to give reasonable notice of departure.

The court rejected claims of tortious interference against the rival union and its representatives.

Limited damages were awarded against the former employees for breach of employee duties.

The plaintiff, a highly successful salesman who managed a lucrative drill rig production account, agreed to a temporary layoff during an economic downturn.

Upon his recall, the defendant employer offered him a vague sales position that excluded the lucrative drill rig account, fundamentally altering his duties and compensation.

The court found the plaintiff was constructively dismissed and was not required to mitigate his damages by accepting the ill-defined new role.

The plaintiff was awarded 16 months' pay in lieu of notice.

Following a successful appeal by the defendants regarding a representation order, the parties sought a determination on the costs of the original motions before the motion judge, which had been reserved.

The motion judge had originally awarded $9,000 globally to the plaintiff for success on three motions.

The Divisional Court suggested an arbitrary reduction of the costs award to $6,000 to reflect the defendants' success on appeal regarding one of the motions, and referred the matter back to the motion judge if the parties could not agree.

The plaintiff, an elderly man, was severely beaten by individuals on a union picket line.

He sued the defendants in their personal capacity and, after the two-year limitation period expired, sought a Representation Order under Rule 12.07 to bind all union members.

The motions judge granted the order based on the common law 'special circumstances' doctrine.

However, subsequent Court of Appeal decisions eliminated this doctrine.

On appeal, the Divisional Court held that a Representation Order effectively adds new parties to the action.

Consequently, the expiration of the limitation period was fatal to the application, and the appeal was allowed.

The appellant employer appealed a trial decision awarding a wrongfully dismissed employee damages for the loss of pension benefits that would have accrued during his 22-month notice period.

The employer argued that the terms of the pension plan limited accrual of benefits to periods of active employment and explicitly denied the right to damages for lost benefits.

The Court of Appeal dismissed the appeal, holding that the employee had a common law right to damages for breach of contract, and the language of the pension plan was not sufficiently clear and unequivocal to limit or take away that right.

The applicant union sought judicial review of an arbitrator's award concerning the interpretation of a collective agreement and an employee's status under the Employment Standards Act.

The Divisional Court applied the reasonableness standard of review.

The court found the arbitrator's analysis of the collective agreement and the employee's status to be reasonable and dismissed the application with costs.

The trial judge cited senior detention centre officials for contempt of court due to persistent delays in bringing the accused to trial.

An independent prosecutor was appointed to take carriage of the contempt proceedings, and the trial judge ordered the Crown to remunerate him at his normal private sector rate of $375 per hour, plus $210 per hour for junior counsel.

The Crown appealed the rates.

The Court of Appeal allowed the appeal in part, holding that an independent prosecutor performing a public service paid from public funds should not expect private sector rates.

The rates were reduced to $250 per hour for lead counsel and $140 per hour for junior counsel.