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.