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.

The Association sought pre-hearing production of documents, including an unredacted Underwriting Agreement between the Employer and Canada Life, in a grievance concerning the dismissal of an employee for allegedly submitting false benefits claims.

The Employer and Canada Life argued the redacted portions contained proprietary and irrelevant information.

The Arbitrator ordered the Employer to produce the current insurance policies and documents delineating the responsibilities and risk allocation between the Employer and Canada Life, while permitting the Employer to redact privileged or irrelevant/sensitive information provided it supplies a written description of the basis for each redaction.

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 applicant in a human rights application alleging racial discrimination filed a Request for Order During Proceedings seeking production of all email communications between himself and his supervisor over a six-month period.

The respondent objected, arguing the request was a fishing expedition and that relevant emails had already been provided.

The Tribunal applied the arguable relevance test and ordered the respondent to produce all emails sent by the applicant to the supervisor during the specified period, along with any responses, as they were arguably relevant to the applicant's allegation that the supervisor failed to respond to his emails.

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 applicant filed a human rights application alleging discrimination and reprisal regarding the termination of his employment.

Prior to this, his union had filed a grievance on his behalf, which proceeded to arbitration.

The arbitrator found the employer lacked just cause for dismissal and awarded severance and wages, but declined reinstatement.

The Tribunal held a preliminary hearing to determine whether the application should be dismissed under section 45.1 of the Human Rights Code.

The Tribunal found that the arbitrator had concurrent jurisdiction to decide human rights issues and that the legal issue decided was essentially the same as the one before the Tribunal.

Concluding that the applicant was attempting to relitigate the same dispute, the Tribunal dismissed the application.

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.

The applicant filed a human rights application challenging the attendance management program at two respondent work sites.

The Tribunal held a summary hearing to determine if the applicant had standing against William Osler Health Centre and if the application had a reasonable prospect of success.

The Tribunal found the applicant was employed solely by Carillion Services Inc. and lacked standing against William Osler.

Furthermore, the applicant's theoretical concerns about the attendance program, which had been revised following a union policy grievance settlement, did not raise issues under the Human Rights Code.

The application was dismissed for having no reasonable prospect of success.

The applicant filed a human rights application alleging discrimination and reprisal regarding his employment termination.

The respondent and the applicant's union requested that the application be deferred because a grievance arbitration regarding the same facts and issues was already underway.

The Tribunal deferred the application pending the conclusion of the arbitration process, consistent with its general practice of avoiding concurrent legal proceedings.

The applicant filed a Request for an Order during Proceedings seeking the production of documents, including his employment file and PDA records.

The Tribunal declined to consider the request because the Application had previously been deferred pending the outcome of the applicant's grievance and arbitration process.

The applicant may renew the request if the Application is re-activated.

The applicant filed a human rights application alleging discrimination in employment on the basis of race and family status, and reprisal.

The Tribunal directed a summary hearing to determine whether the application should be dismissed against the respondent Union for having no reasonable prospect of success.

The applicant alleged the Union failed to properly represent him in a grievance regarding his termination, which he claimed was due to his previous advocacy for racialized employees.

The Tribunal found no reasonable prospect that the applicant could establish the Union's actions were based on discriminatory factors, and dismissed the application against the Union.

The Tribunal also denied the Company respondents' request to defer the application, as the grievance was no longer being pursued.

The applicant filed a human rights application alleging reprisal after his employment was terminated following the deferral of his initial application.

The respondents requested that the application be deferred pending the conclusion of an ongoing union grievance and arbitration proceeding regarding the termination.

The union requested intervenor status.

The Tribunal granted the union's request to intervene and deferred the application, noting that labour arbitrators have jurisdiction to apply the Human Rights Code and deferral avoids duplication of proceedings.