Fiona Campbell

Former students of two residential schools brought a Request for Directions under the Indian Residential Schools Settlement Agreement alleging failures in Canada's document disclosure and reporting obligations in the Independent Assessment Process.

After partial success on the merits, the court addressed the issue of costs.

The applicants sought full indemnity costs exceeding $143,000, while Canada argued for partial indemnity costs in the range of $15,000 to $20,000.

The court held that costs under the IRSSA involve a special discretionary framework reflecting the reconciliation objectives of the settlement agreement.

Balancing success on the motion, litigation conduct, and fairness considerations, the court awarded reduced costs of $78,089.95.

The applicants, former students of St. Anne's and Bishop Horden Indian Residential Schools, brought a Request for Directions asserting that Canada failed to comply with its report writing obligations under the Indian Residential Schools Settlement Agreement.

They sought orders requiring Canada to revise School Narratives and Person of Interest Reports, and to provide unredacted source documents to adjudicators and claimants.

The court found that Canada's updated reports for St. Anne's did not comply with the Agreement and ordered Canada to revise them to include a detailed chart of abuse allegations and corresponding documents.

The court also ordered Canada, on consent, to provide unredacted copies of publicly available court records, but dismissed the request for unredacted copies of other documents, citing privacy safeguards in the Agreement.

The defendants brought a motion seeking leave to issue a third party claim for contribution and indemnity against a non-party alleged to have provided instructions during prior litigation involving the plaintiff.

The court considered the interaction of the Limitations Act, 2002, the Negligence Act, and the Rules of Civil Procedure governing third party claims.

While the proposed claim disclosed an arguable basis for contribution and indemnity, the court held that contribution cannot be sought in respect of alleged breaches of fiduciary duty owed directly by counsel to a client.

Leave was granted to issue the third party claim, but only after amendment removing any claim for contribution or indemnity relating to fiduciary duties.

Service of the third party claim was permitted by publication due to the unknown whereabouts of the proposed third party.

Following a divided outcome on an application regarding taxi licensing by-laws, the intervenor, Taxiworkers Association of Ontario, sought costs against the applicant.

The court denied costs for the intervention and injunction motions because the intervenor was not a necessary party and participated on its own initiative.

However, the court awarded the intervenor $2,500 in costs for the main application, recognizing that its evidence was critical to the court's determination of the notice issue.

The applicant challenged municipal resolutions and by-law amendments implementing a new one-tier taxi licensing regime, alleging lack of notice, breach of the City's procedural by-law, and bad faith.

The court held that City Council was acting legislatively, not administratively, so no common law duty of procedural fairness applied.

The court further held that Council could consider the referred recommendations and that adequate notice had been given for the general TTL reforms, but not for the newly introduced mandatory 2024 deadline requiring all licences to convert.

That notice failure was a substantive breach going to the root of validity, so only the mandatory conversion deadline was quashed; the remainder of the regime was upheld and the bad faith claim failed.

Following dismissal of a motion for an injunction seeking to enforce a non‑competition agreement, the court addressed the issue of costs.

The moving party had sought to enjoin former advisors and a financial services firm from operating a competing branch, but failed to establish an enforceable restrictive covenant or a serious issue to be tried.

The successful defendants sought partial indemnity costs.

The court held that one group of defendants was entitled to costs but denied costs to the corporate defendant due to its pre‑litigation conduct, which the court described as outrageous and contributing to the litigation.

Costs of $40,000 inclusive were awarded to the remaining defendants.

The plaintiff sought interlocutory injunctions enforcing non‑competition and non‑solicitation clauses in a 2004 agreement against several financial advisors and a related investment dealer after the advisors opened a competing branch nearby.

The court applied the RJR‑MacDonald test and considered whether the restrictive covenants were reasonable in geographic scope, temporal scope, and scope of prohibited activity.

Although the geographic scope was arguably reasonable and there was a serious issue to be tried regarding temporal scope, the court found the activity restrictions overly broad and therefore unreasonable.

As a result, the plaintiff failed to establish the required strength of case to justify interlocutory injunctive relief.

The balance of convenience also weighed against granting the injunction because a competing branch would operate regardless.

The motion for interlocutory injunctions was dismissed.

The applicant union sought judicial review of an arbitrator's decision upholding the employer's refusal to pay a grievor for sick days and holidays.

The employer had rejected the grievor's medical notes after a supervisor overheard a rumour that the grievor planned to call in sick and manipulate her blood pressure to obtain a note.

The Divisional Court dismissed the application, finding the arbitrator reasonably admitted the rumour evidence not for its truth, but to explain why the employer requested further medical information.

The court upheld the arbitrator's conclusion that the union failed to meet its onus of proving illness due to the insufficiency of the medical notes provided.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

The appellant challenged the institutional independence and impartiality of the Canadian Human Rights Tribunal, arguing that the Canadian Human Rights Commission's power to issue binding guidelines and the Tribunal Chairperson's power to extend members' terms compromised procedural fairness.

The Supreme Court of Canada dismissed the appeal, holding that the Tribunal's main function is adjudicative but it also serves to implement government policy, warranting a lower standard of independence than a court.

The Court found that the guideline power is a form of law that does not fetter the Tribunal improperly, and the power to extend appointments does not threaten security of tenure or impartiality.

Several trade unions brought actions challenging federal legislation that authorized the federal government to deal with surpluses in pension plans covering federal government and RCMP employees.

The Attorney General of Canada successfully moved to strike the unions as plaintiffs, arguing that s. 3(2) of the Rights of Labour Act prevented them from suing in their own names.

The Court of Appeal allowed the unions' appeal, holding that the unions have the legal status to sue in their own names derived from their governing labour legislation or corporate status, and that s. 3(2) does not bar them.

The Court also found the unions had standing due to their direct interest in their members' pension benefits.

The Ontario Human Rights Commission appealed a Divisional Court decision upholding a board of inquiry's pre-hearing disclosure order.

The board had ordered the complainant, who alleged discrimination based on a physical handicap, to produce various medical, workers' compensation, and pension files, as well as a list of all other treating medical practitioners.

The Court of Appeal held that the board had the authority to order the complainant to provide an affidavit of documents for the specified files, allowing for claims of privilege and irrelevance to be adjudicated.

However, the Court found that the board exceeded its jurisdiction by ordering the complainant to provide a list of all other treating doctors and their treatments without any relevance screening, as this unjustifiably infringed her privacy rights.

The appeal was allowed in part to set aside that specific paragraph of the board's order.

The respondent employer brought a motion to dismiss or permanently stay a human rights complaint alleging discrimination on the basis of handicap, arguing that the complainant's receipt of Canada Pension Plan (CPP) disability benefits estopped her from claiming she was capable of working.

The Board of Inquiry dismissed the abuse of process motion, finding that the issues and parties before the CPP adjudicative structure were not the same as those before the Board, and thus issue estoppel did not apply.

The respondent also moved to strike portions of the Commission's amended pleading.

The Board granted this motion in part, striking allegations that fell outside the specific subject-matter of the individual complaint, while noting that similar fact evidence might still be admissible if relevant and probative.

Following a finding of liability against the corporate respondent for racial harassment and discriminatory termination, the respondents applied for costs against the Ontario Human Rights Commission under s. 41(4) of the Human Rights Code.

The respondents argued that costs were warranted because portions of the complaint (discriminatory job training and assignment) and the complaints against the individual respondents were dismissed due to the Commission's delay.

The Board of Inquiry dismissed the application, holding that s. 41(4) requires the entire complaint to be dismissed before costs can be awarded.

Furthermore, the Board found that even if it had discretion, it would not award costs because the delay caused undue hardship to the complainant as well, and there was no evidence that the complaints against the individual respondents were trivial, frivolous, vexatious, or made in bad faith.

Following a finding that the complainant was subjected to racial harassment and discriminatory discharge, the Board of Inquiry determined the appropriate remedies.

The Board ordered the respondent employer to reinstate the complainant, finding that reinstatement was the only remedy that would properly serve as restitution.

The employer was also ordered to provide retraining and employee assistance counselling.

The Board awarded the complainant compensation for lost wages and benefits up to the date he found comparable employment, less the time for justified disciplinary suspensions.

Additionally, the Board awarded $20,000 in general damages for the infringement of the complainant's rights and $10,000 for mental anguish caused by the employer's reckless contravention of the Human Rights Code.

The Board declined to award legal costs, citing a lack of statutory jurisdiction, but did award pre-judgment interest on the damages.

The complainant, an East Indian man from Guyana, alleged that he was subjected to a racially poisoned work environment at the Ford Motor Company plant in Windsor and was ultimately discharged discriminatorily.

The Board of Inquiry found that the workplace was saturated with racist graffiti and slurs, and that management failed to take adequate steps to address the harassment, rendering the employer liable.

The Board further held that the complainant's disciplinary record, which included insubordination and altercations, was provoked by the discriminatory environment.

The employer's decision to discharge the complainant without considering this context was found to be unlawful.

Jurisdiction was retained to determine the appropriate remedy.

Following the dismissal of a human rights complaint alleging discrimination in employment on the basis of handicap, the respondents sought costs against the Ontario Human Rights Commission under s. 41(4) of the Human Rights Code.

The respondents argued that the complaint was vexatious and that the Commission acted irresponsibly in pursuing it given the clear superiority of the successful candidate's qualifications.

The Board of Inquiry dismissed the application for costs, finding that while the Commission's investigation may have had technical shortcomings, the complaint was pursued in good faith and was not vexatious.

The complainants, two gay men in long-term same-sex relationships, alleged that the Ministry of Transportation discriminated against them on the basis of sexual orientation by requiring them to obtain and pay for a safety standards certificate when transferring vehicle ownership to or from their partners.

Opposite-sex spouses were exempt from this requirement.

The Board of Inquiry found that the Ministry's actions constituted discrimination in the provision of services based on sexual orientation, contrary to the Human Rights Code.

The Board ordered the Ministry to compensate the complainants and to cease its practice of automatically excluding same-sex couples from the spousal exemption.

The complainant, a black cashier, alleged she was racially harassed and subsequently terminated because of her race.

The Board of Inquiry found that the store manager engaged in unconscious discriminatory behaviour, including mimicking accents and making racially insensitive jokes, which created a poisoned work environment.

However, the Board concluded that the complainant's termination was due to insubordination, not race.

The complaint regarding termination was dismissed, but the complaint of racial harassment was upheld.

The corporate respondent was ordered to pay $3,000 in general damages and institute a training program for its managers.

The respondents brought a motion to dismiss or stay a human rights complaint, arguing that the Ontario Human Rights Commission failed to make sufficient efforts to settle the complaint, and that delay, inadequate disclosure, and biased investigation amounted to an abuse of process.

The Board of Inquiry found that the Commission did make efforts to settle and held that, in any event, failure to conciliate is not a condition precedent to the Board's jurisdiction.

The Board also found that while there was considerable delay, it did not render a fair hearing impossible.

The motion was dismissed.