David Migicovsky

The Canadian Union of Postal Workers (CUPW) sued Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., Jerry Agar, and Avi Benlolo for defamation.

The claim arose from statements published in print and broadcast media in 2014, alleging that CUPW and its members were terrorist sympathizers and supported Hamas, following a demonstration where CUPW flags were seen near a Hamas flag.

The court addressed CUPW's standing as an unincorporated association to sue for defamation, finding it had standing.

The court then examined the defamatory meaning of the impugned statements and the defendants' defences of truth, fair comment, responsible communication, and statutory privilege.

The court found that the defendants successfully established the defence of fair comment, as their opinions were honestly held and based on a sufficient factual substratum, and also discharged their duty of responsible communication and statutory privilege.

The action was dismissed with costs.

The appellant police officer appealed a penalty of dismissal imposed after he pleaded guilty to discreditable conduct for assaulting a youth in a hospital.

The appellant argued the Hearing Officer erred in reopening the hearing to admit prior judicial commentary about his conduct, misapplied those findings as aggravating factors, and failed to properly consider his diagnosis of and rehabilitation from post-traumatic stress disorder.

The Ontario Civilian Police Commission allowed the appeal, finding the Hearing Officer erred in his use of the prior judicial commentary as substantive evidence of misconduct and failed to adequately analyze the extensive medical evidence regarding the appellant's PTSD and rehabilitative potential.

A new penalty hearing before a different Hearing Officer was ordered.

The applicant, a police constable, sought judicial review of a decision by the Ontario Civilian Police Commission that upheld a Hearing Officer's findings of misconduct and the penalty of dismissal.

The misconduct involved driving a police cruiser without a valid license, failing to report a collision, having the vehicle inspected by an unauthorized mechanic, and deceiving a supervising officer.

The Divisional Court applied the reasonableness standard of review and found that the Commission had properly addressed the applicant's arguments and reasonably upheld both the misconduct findings and the termination of employment.

The application for judicial review was dismissed.

The defendant brought a motion for summary judgment to dismiss the defamation action against him.

The plaintiff opposed the motion, arguing that partial summary judgment was inappropriate because the issues were intertwined with claims against other defendants and a trial was already scheduled.

The court dismissed the motion, finding that partial summary judgment could lead to inconsistent findings and would not achieve a proportionate, cost-effective, and timely dispute resolution given the upcoming trial.

This is an appeal from orders concerning the equalization of net family property and costs in a divorce proceeding.

The appellant husband challenged the trial judge's recalculation of the respondent wife's pension value, the payment order, and the costs award.

The Court of Appeal dismissed the husband's appeal, finding no error in the pension valuation or the enforcement order, and refused leave to appeal the costs.

The court also granted the wife's request to amend the enforcement deadline to allow for a period to pursue cash payment before pension rollover.

The applicant police officer sought a stay of his dismissal from the police service pending judicial review of an Ontario Civilian Police Commission decision that confirmed his termination for discreditable conduct, neglect of duty, and deceit.

The court dismissed the motion for a stay, finding that the balance of convenience and irreparable harm did not favor the applicant.

The court noted that the applicant's losses were primarily financial and could be remedied with back pay if his judicial review application succeeded, whereas granting routine stays would contravene legislative policy.

The applicant sought judicial review of a decision by the Belleville Police Services Board granting the Chief of Police an extension to serve a notice of hearing respecting misconduct allegations.

The respondents raised preliminary issues, arguing the application was filed outside the 30-day time limit and was premature.

The Divisional Court dismissed the application for judicial review on the ground of prematurity.

The court held that the decision to extend the time was interlocutory and that courts are reluctant to intervene in ongoing administrative proceedings absent exceptional circumstances.

The applicant's argument regarding procedural fairness and inadequate reasons did not constitute exceptional circumstances justifying intervention.

This is an appeal from a motion judge's decision dismissing an anti-SLAPP motion.

The appellants (B'nai Brith Canada et al.) sought to dismiss a defamation action brought by the respondent (Canadian Union of Postal Workers - CUPW) under s. 137.1 of the Courts of Justice Act.

The defamation action arose from press releases published by B'nai Brith alleging CUPW supported terrorism and was anti-Semitic due to its association with a Palestinian union.

The motion judge found CUPW had a substantial case for defamation and that the appellants' defences (justification, fair comment, responsible communication) had serious flaws, and that the public interest favoured allowing the action to proceed.

The Court of Appeal upheld the motion judge's decision, finding no reviewable error in the application of the anti-SLAPP test, including the assessment of the appellants' defences and the public interest balancing.

The appeal was dismissed.

The appellant, a police inspector, appealed a Hearing Officer's decision finding him guilty of Discreditable Conduct for using discriminatory and insulting language during a recruitment interview with a South Asian candidate.

The appellant argued the Hearing Officer applied the wrong legal test, erred in credibility assessments, and reversed the burden of proof.

The Ontario Civilian Police Commission dismissed the appeal, finding the Hearing Officer correctly applied an objective test to determine the language was offensive to community standards, properly assessed credibility, and correctly applied the standard of clear, convincing, and weighty evidence.

Following an appeal with divided success regarding an equalization payment and pension valuation, the parties could not agree on costs.

The Court of Appeal determined that the respondent was the more successful party.

The appellant was ordered to pay the respondent's appeal costs fixed at $15,000 on a partial indemnity basis.

The issue of trial costs was referred back to the trial judge.

This appeal concerned the valuation of federally regulated pensions for equalization purposes in family law, specifically addressing the determination of the "normal retirement date." The Court of Appeal held that the trial judge erred by using case-specific intentions for retirement dates instead of applying the functional meaning of "normal retirement date" as defined under the provincial Pension Benefits Act (PBA) scheme, which represents the age at which any member is entitled to unreduced pension benefits (age 60 for these parties under the Public Service Superannuation Act).

The court emphasized that the provincial valuation methodology should be applied to federal pensions with only "necessary modifications." The appeal was allowed in part, remitting the matter for recalculation of the equalization payment based on the corrected normal retirement date.

Other grounds of appeal regarding survivor benefits, contingent survivor benefits, date of marriage deductions, notional disposition costs, and the method of equalization payment were dismissed.

The appellants, the Chief of the Durham Regional Police Service and the Durham Regional Police Services Board, sought judicial review of an interim order made by the Ontario Civilian Police Commission.

The Commission had appointed an Administrator to oversee disciplinary proceedings, promotions, and secondary employment within the Service, citing an emergency and a crisis of confidence.

The Divisional Court dismissed the application, finding that the Commission had the jurisdiction to make the interim order without notice or a hearing under section 24(1) of the Police Services Act.

The Court held that the decision was reasonable, did not breach procedural fairness, and did not raise a reasonable apprehension of bias.

The defendants brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action initiated by the plaintiff union.

The defendants contended the action was an illegitimate attempt to suppress freedom of expression on a matter of public interest.

The court found that while the litigation had some elements of SLAPP, it was not the type of action the legislature intended to stop at a preliminary stage.

The defamation action appeared to have substantial merit, and the defendants' pleaded defences were not certain to succeed.

The court was not persuaded that the plaintiff's principal objective was to stifle criticism.

Consequently, the motion to dismiss was denied.

The appeal concerns the openness of a police services board hearing regarding an extension of time for service of a disciplinary notice.

Following an investigation by the Ontario Independent Police Review Director into allegations of police misconduct in the investigation of the death of an Indigenous man, a retired judge appointed as a substitute decision-maker ordered that the extension hearing be held in camera.

The Canadian Broadcasting Corporation and First Nation complainants sought judicial review, arguing that the hearing should be open pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms.

The Divisional Court upheld the in camera order, finding that the Dagenais/Mentuck test did not apply to administrative proceedings and that the statutory test under the Police Services Act was sufficient.

The Court of Appeal allowed the appeal, finding that while the Dagenais/Mentuck test does not apply to administrative proceedings, the Charter right to freedom of expression and freedom of the press recognized in Langenfeld applies to police services board meetings, and the presumption of openness under the Police Services Act must be considered in light of this Charter protection.

The respondent police service brought an unopposed motion for a sealing order regarding certain exhibits, transcripts, and factum references from a police disciplinary hearing.

The materials contained highly sensitive intelligence information obtained from a confidential informant, as well as personal and criminal histories of non-parties.

Applying both the common law test from Donovan v. Sherman Estate and section 2(2) of the Tribunal Adjudicative Records Act, 2019, the Commission found that the privacy interests of the non-parties and the need to protect confidential informants outweighed the open court principle.

The motion for a sealing order was granted.

The applicant media organization sought judicial review of a decision to hold an in camera hearing for an extension of time application under s. 83(17) of the Police Services Act regarding police misconduct allegations.

The applicant argued the decision-maker erred by failing to apply the Dagenais/Mentuck test for open court proceedings.

The Divisional Court dismissed the application, finding that the standard of review was reasonableness and that the Dagenais/Mentuck test does not apply to administrative or procedural functions under the Police Services Act, which contains its own statutory framework for determining when hearings may be closed to the public.

Canada Post Corporation brought an urgent motion seeking an injunction against protestors blockading its mail processing plants.

After the injunction was granted, protestors continued their actions, leading Canada Post to bring a further urgent motion for directions and amendments to the order regarding police assistance in enforcement, specifically concerning the Peel Regional Police's actions.

The court dismissed Canada Post's motion, reaffirming that courts cannot direct police on how to carry out their operational discretion in enforcing civil orders, and that contempt proceedings are the only available remedy for non-compliance.

The appellant, a police officer, appealed a penalty decision ordering him to resign or be summarily dismissed following convictions for criminal harassment and breach of trust.

The misconduct involved stalking his former partner and conducting unauthorized police database searches.

The Ontario Civilian Police Commission reviewed the Hearing Officer's decision on a reasonableness standard.

The Commission found that the Hearing Officer appropriately weighed the penalty factors, including the egregious nature of the offences, the damage to the police service's reputation, and the appellant's limited prospects for rehabilitation.

The appeal was dismissed and the penalty of dismissal was confirmed.

The applicant, a police sergeant, brought an application for judicial review of a hearing officer's decision declining to recuse himself for alleged bias during a disciplinary hearing.

The Divisional Court dismissed the application as premature, finding that the applicant had an automatic right of appeal to the Ontario Civilian Police Commission once the penalty phase concluded.

The court reiterated that exceptional circumstances are required to justify early intervention by judicial review when an administrative appeal route exists.

The appellant appealed the dismissal of its defamation action following a Rule 21 motion.

The motion judge had held that the appellant's notices did not comply with s. 5(1) of the Libel and Slander Act because they failed to sufficiently specify the matters complained of.

The Court of Appeal allowed the appeal, finding that the notices clearly specified the statements and inferences from the internet broadcast and newspaper article, and were sufficiently specific to allow the respondents to know the essence of the complaint and decide how to respond.