Ernest G. Guiste

The applicant applied under s. 684 of the Criminal Code for state-funded legal assistance to appeal his conviction for possession of cocaine for the purpose of trafficking.

He argued the trial judge failed to properly consider circumstantial evidence of racial profiling and erred by not drawing an adverse inference from the Crown's failure to call a passenger as a witness.

The Court of Appeal dismissed the application, finding the proposed appeal lacked merit as it merely sought to revisit the trial judge's credibility findings, and noted that no Charter application to exclude evidence had been made at trial.

Following the dismissal of a civil action alleging racial and gender discrimination in a police investigation, the defendants sought costs.

Although the plaintiff subjectively believed he had been discriminated against and evidence revealed negligent and substandard police record-keeping, the court had found no discriminatory motive.

The plaintiff argued he was impecunious and sought costs in his favour due to the public importance of the issues.

The court rejected the claim of impecuniosity and applied the principles under Rule 57 and the guidance in Boucher to determine the appropriate award.

Costs were awarded to the defendants in the reduced amount of $120,000 all-inclusive.

The applicant filed human rights applications against her former employer and union alleging discrimination on the basis of age and disability.

The applicant had previously settled a grievance regarding her termination, signing minutes of settlement and a release that resolved all employment matters and withdrew her human rights complaint.

The applicant argued the settlement was signed under duress and was a charade.

The Tribunal held that allowing the applications to proceed would be an abuse of process, as the settlement fully addressed the human rights issues and there was no factual foundation to support the claim of duress or discriminatory conduct by the union in reaching the settlement.

The applications were dismissed.

The plaintiff brought an action for malicious prosecution, negligent investigation, and breaches of sections 7 and 15 of the Charter against the defendant police services board and individual officers.

The claims arose from the plaintiff's arrest and detention for domestic assault and uttering death threats.

The plaintiff alleged that the police failed to properly investigate by not seeking his version of events and discriminated against him based on race and gender, noting that his spouse was not ultimately prosecuted despite admitting to striking him first.

The Superior Court of Justice dismissed the action, finding that the police had reasonable and probable grounds to arrest and charge the plaintiff.

The court held that the police's failure to interview the plaintiff was dictated by his Charter rights to silence and counsel, and that the different treatment of the parties was based on the evidence of the plaintiff's escalating violence, not discriminatory motives.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his discrimination complaint against his employer and union to the Human Rights Tribunal.

He alleged a denial of natural justice because the Commission failed to interview certain witnesses and consider evidence of systemic discrimination.

The Divisional Court dismissed the application, finding no breach of procedural fairness as the un-interviewed witnesses lacked direct knowledge, and holding that the Commission's conclusion of insufficient evidence of discrimination was reasonable given the applicant's objective test scores.

The appellant appealed an order of a Master dismissing her wrongful dismissal action for delay.

The appellant argued the Master erred by measuring the delay from September 2006 and ignoring intervening factors, such as a previous order excusing delay and an amended statement of claim.

The Divisional Court dismissed the appeal, finding the Master properly considered the entire history of the litigation, correctly applied the law regarding inordinate and inexcusable delay, and properly found the appellant failed to rebut the presumption of prejudice.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission not to refer his complaint to the Human Rights Tribunal.

The respondents brought a preliminary motion to dismiss the application for delay.

The Divisional Court granted the motion, finding that the 17-month delay was inordinate and unexplained.

Furthermore, due to legislative amendments, the court noted it no longer had jurisdiction to remit the matter to the Commission or the newly constituted Tribunal.

The applicant, a probationary receptionist, alleged that her employment was terminated because of her age and place of origin (Scottish accent).

The respondent employer maintained that she was terminated due to performance issues, including using coarse language, impatience with customers, and miscommunicating messages.

The Tribunal found the employer's witnesses credible and noted that the workplace was multi-ethnic and the applicant's predecessor and successor were of similar age.

The Tribunal concluded there was no evidence that the termination was tainted by discrimination and dismissed the application.

The appellant filed written submissions asking to appeal his sentence following a previous hearing.

The Court of Appeal accepted that the appellant had not abandoned his sentence appeal, but ultimately dismissed the appeal for the reasons set out in the Crown's response.

In a bifurcated proceeding, the Tribunal previously found that the respondent's failure to address the applicant's performance issues was tainted by age discrimination, leading to her termination.

In this decision on remedy, the Tribunal concluded that even if a performance management plan had been implemented, the applicant would have been terminated in any event due to her lack of self-awareness regarding her performance deficiencies.

The Tribunal awarded $21,392.48 for lost wages and benefits based on the severance package she likely would have accepted, and $20,000 for injury to dignity, feelings, and self-respect, supported by medical evidence of depression.

Claims for reinstatement, legal expenses, and medical expenses were denied.

The appellant appealed a Master's decision dismissing her action for failing to comply with court orders, specifically failing to answer undertakings and pay costs.

The appellant argued the Master failed to give sufficient weight to her impecuniosity and the resulting denial of access to justice.

The Divisional Court dismissed the appeal, finding the Master made no error of principle or palpable and overriding error, as impecuniosity is not a shield for a party who consistently fails to act reasonably.

The applicant requested reconsideration of an interim decision that granted an adjournment and removed an individual respondent from the application.

The Tribunal dismissed the request, noting that under Rule 26.1, only final decisions can be reconsidered.

The only final aspect of the interim decision was the removal of the individual respondent, but the applicant's reconsideration request failed to provide specific reasons under Rule 26.5 to challenge that removal or explain the failure to respond to the original request.

The applicant, a person with a disability who uses a wheelchair, filed a human rights complaint alleging discrimination and reprisal by the Toronto Transit Commission's Wheel-Trans service.

The respondent requested the dismissal of the application for failure to establish a prima facie case, non-compliance with disclosure rules, and improper expansion of the complaint's scope.

The Tribunal reviewed the specific incidents alleged and dismissed several for failing to establish a nexus to a Code ground, while allowing others to proceed to a hearing.

The Tribunal relieved against strict compliance with disclosure rules, struck systemic allegations that improperly expanded the scope of the individual complaint, and denied the applicant's request for an adjournment to retain new counsel.

The applicant requested an adjournment of the hearing because his counsel failed to attend due to a double booking and failed to provide him with the respondents' disclosure package.

The Tribunal granted the adjournment, finding that the counsel's failure to provide the disclosure package to the applicant constituted an extraordinary circumstance.

The Tribunal also granted the respondents' unopposed request to remove the individual respondent from the application, as the corporate respondent acknowledged vicarious liability and had the capacity to remedy any alleged Code infringement.

The appellant appealed his conviction, arguing that the Crown's reference to uncontradicted evidence violated section 4(6) of the Canada Evidence Act and that the trial judge's answer to a jury question undermined their right to disagree.

The Court of Appeal dismissed the appeal, finding that stating evidence is uncontradicted does not amount to a comment on the failure to testify, and that the trial judge correctly instructed the jury on their right to disagree.

The applicant, who required dialysis for a kidney condition, alleged that his employer discriminated against him on the basis of disability by refusing shift changes and ultimately terminating his employment.

He also alleged the union failed to properly represent him.

The applicant withdrew the application against the union during the hearing.

The Tribunal dismissed the application against the employer, finding insufficient evidence that shift changes were refused for disability-related reasons.

The Tribunal also found that the termination was based on a series of bona fide misconduct incidents and was not a pretext for disability discrimination.

The applicant requested a reconsideration of a Tribunal decision that dismissed her human rights application as barred by section 34(11) of the Human Rights Code due to a concurrent civil action.

The applicant argued that her civil action only raised disability-related claims, while her human rights application included race-based discrimination claims not raised in the civil action.

The Tribunal denied the reconsideration request, holding that section 34(11) applies even if different grounds of discrimination are raised in the two proceedings, to prevent duplication.

The Tribunal also rejected the argument that section 43(2) required oral submissions, as the statutory bar deprived the Tribunal of jurisdiction.

The appellant appealed a jury verdict dismissing her action for malicious prosecution and negligent investigation against the police.

She argued the trial judge erred in his jury instructions regarding the exact words spoken, the police's duty to get her version of events, and the assessment of reasonable and probable grounds.

The Court of Appeal found no error in the charge, noting it fairly focused the jury on whether the officer had reasonable and probable grounds to lay the charge.

The respondents cross-appealed the trial judge's decision to deny them costs based solely on the appellant's impecuniosity.

The Court allowed the cross-appeal, holding that impecuniosity cannot be the only factor considered, and awarded the respondents $40,000 in trial costs and $7,500 for the appeal.

The applicant filed two human rights applications against her former employer and her union.

The employer requested dismissal on the basis that the original complaint was dismissed by the Commission and not continued under section 53 of the Code.

The union requested dismissal or deferral pending an ongoing grievance arbitration regarding the applicant's termination.

The Tribunal dismissed the application against the employer for lack of jurisdiction, as the complaint was not a 'continued' complaint.

The Tribunal deferred the application against the union pending the conclusion of the grievance arbitration, finding it fair, just, and expeditious to avoid concurrent proceedings on the same issues.

The applicant, a 59-year-old hospital manager, alleged that her termination without cause was discriminatory based on age.

The respondent hospital claimed the termination was due to documented performance issues.

The Tribunal found that while the performance issues were legitimate and untainted by age discrimination, the respondent failed to take appropriate steps to address these issues with the applicant, contrary to its own policies.

The Tribunal inferred that age was a factor in this failure, as the respondent's director had inquired about the applicant's retirement plans and seemingly decided not to invest in performance management for an older employee.

Because the failure to address performance issues tainted the termination decision, the Tribunal concluded that age was a factor in the termination and found a violation of the Human Rights Code.