Dougald E. Brown

Following dismissal of a large class action brought by a class of pilots against another class of pilots alleging economic torts, breach of fiduciary duty, and negligent misrepresentation, the successful defendants sought $1.5 million in costs.

The court considered the discretion under s. 131 of the Courts of Justice Act and the factors under Rule 57.01, as well as s. 31 of the Class Proceedings Act, 1992.

Although the proceeding involved unusual procedural features including a defendant class and lengthy litigation history, the court found it was primarily a private commercial dispute and not a test case or matter of public interest.

Despite the defendants’ success and their settlement offers, the court determined that aspects of the defendants’ conduct in their dealings with the plaintiffs justified denying them costs.

Each side was ordered to bear its own costs.

The Plaintiffs, representing Air Ontario pilots, brought a class action against the Defendants, representing Air Canada pilots, alleging unlawful act conspiracy, intentional interference with economic interests, breach of fiduciary duty, and negligent misrepresentation.

The dispute arose from the failure to implement a merged pilot seniority list following an arbitration award by Michel Picher.

The court dismissed all claims, finding that the Defendants' conduct was not unlawful, there was no intention to injure, no fiduciary duty was owed to the Plaintiffs, and the representations made were not actionable.

Furthermore, the court found that the Plaintiffs suffered no damages as Air Canada would never have agreed to the merged seniority list.

The plaintiffs, former federal public servants, sued the Attorney General of Canada (AGC) for negligent misrepresentation after resigning to join a private company, Loba, and transferring their pensions to the Loba Plan, which was later revoked by the CRA.

The trial judge found the AGC liable for failing to disclose known risks about the Loba Plan and apportioned liability 80% to the AGC and 20% to the Loba Parties (third parties).

The AGC appealed.

The Court of Appeal upheld the findings of duty of care, misrepresentation, and causation against the AGC.

However, the Court allowed the appeal in part regarding apportionment, finding the trial judge erred in her fiduciary analysis of the Loba Parties.

The Court adjusted the apportionment of liability to 60% for the AGC and 40% for the Loba Parties.

A separate appeal by one plaintiff regarding the calculation of his damages was dismissed.

The applicants sought judicial review of a policy decision by the Ontario Municipal Employees Retirement Board (OMERS) which directed that amounts paid to firefighters in lieu of paid statutory holidays are not to be included in 'contributory earnings' for pension purposes.

OMERS took the position that such payments constituted 'overtime', which is excluded from contributory earnings under the applicable regulation.

The Divisional Court applied a standard of reasonableness and found that OMERS's interpretation of the term 'overtime' was reasonable, as it fell within the Board's expertise in managing and administering the pension fund.

The application for judicial review was dismissed.

The appellants appealed a summary judgment dismissing their third party claim against the respondent.

The motion judge had concluded that Captain Pulley had not been designated within the meaning of an Indemnity and that a paragraph of the Indemnity applied only to claims by non-union members against union members.

The Court of Appeal found that the motion judge improperly weighed evidence and drew inferences of fact, particularly given the absence of evidence based on personal knowledge from the respondent concerning the practice of making designations.

The appeal was allowed, the summary judgment set aside, and costs of $15,000 awarded to the appellant.

The appellant, a federal public servant, was declared surplus and sought early retirement incentive benefits provided by regulation.

His application was rejected, and he was subsequently laid off.

While his lay-off was arbitrable under the Public Service Staff Relations Act (PSSRA), his claim for benefits was grievable but not arbitrable.

Instead of grieving the denial of benefits, the appellant initiated a negligence action in the Federal Court.

The Supreme Court of Canada held that while the PSSRA does not explicitly oust the courts' residual jurisdiction, the courts should generally decline to intervene in workplace disputes where Parliament has established a comprehensive statutory scheme, even if that scheme does not provide for independent third-party adjudication.

The appeal was dismissed.

The applicant employer sought judicial review of an arbitration award finding that its continued use of freelance columnists and reporters violated the collective agreement to the financial detriment of a laid-off editorial employee who had bumped into a lower-paying reporter position.

The Divisional Court applied the patent unreasonableness standard of review.

While acknowledging the employer's argument that the arbitrator's broad interpretation could lead to absurd results in other contexts, the court held that the interpretation was based on the plain meaning of the words and was not clearly irrational.

The application for judicial review was dismissed.

The union applied for a declaration that Ottawa Valley Autistic Homes is a 'hospital' under the Hospital Labour Disputes Arbitration Act (HLDAA) and that a lock-out by the employer was illegal.

The Board advised the Minister that the agency, which provides residential and vocational services to autistic individuals, is an institution operated for the observation, care, or treatment of persons afflicted with a physical or mental illness, and thus qualifies as a hospital.

However, the Board dismissed the application for a declaration of an illegal lock-out, finding that the lock-out was legal under the Labour Relations Act until the Minister formally replaced the initial no-board report with a notice under the HLDAA.

The applicant, a former part-time district supervisor, alleged that the union breached its duty of fair representation under section 74 of the Labour Relations Act.

He claimed the union treated part-time supervisors unfairly by agreeing to a reclassification that reduced their hourly rate and by failing to secure enhanced severance pay when their jobs were contracted out.

He also complained that the union refused to process his grievances regarding the reclassification, scheduling, and severance pay.

The Board dismissed the application, finding that the union made a difficult but justifiable collective bargaining decision to save part-time positions and that its refusal to process the grievances was based on a reasoned legal opinion, not arbitrary or bad faith conduct.

In an intended class proceeding arising from a union seniority integration dispute following an airline merger declaration, the appellants sought damages personally against other union members for alleged breach of the union constitution.

The court held that although union constitutions may be analyzed contractually, the contractual bond runs between each member and the membership as a whole, not as one-on-one contracts supporting damages claims against individual members.

The appeal from summary judgment dismissing the contract claim was therefore dismissed.

The cross-appeal was also dismissed because the pleaded conspiracy and unlawful interference claims remained legally distinct and disclosed a genuine issue for trial.

These consolidated appeals concerned the constitutionality of a federal statutory prohibition on partisan political work by public servants.

The Court held that legislation implementing a constitutional convention of public service neutrality remains ordinary legislation and is subject to Charter review.

The impugned provision infringed freedom of expression under s. 2(b), was sufficiently precise to be a limit prescribed by law, but failed the s. 1 proportionality analysis because it applied overbroadly to all public servants regardless of role or level.

The Court declined to preserve the provision through case-by-case reading down and left standing the declaration that the impugned provision was of no force or effect except as it applied to deputy heads.

The appellant Institute was the bargaining agent for nurses employed by the federal government in the Northwest Territories.

When the nurses became employees of the territorial government, they became eligible for membership in the respondent Association, which had a statutory monopoly to bargain collectively.

The Institute sought incorporation under the Public Service Act to represent its former members, but the territorial government declined to enact the required legislation.

The Institute applied for a declaration that the incorporation requirement violated freedom of association under s. 2(d) of the Charter.

The Supreme Court of Canada dismissed the appeal, holding that the statutory monopoly and the requirement of incorporation did not infringe s. 2(d), as the activity of collective bargaining is not constitutionally protected.