Howard Goldblatt

The Attorney General of Ontario appealed a Superior Court decision that declared provisions of Bill 5 (Better Local Government Act, 2018) unconstitutional for violating freedom of expression rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.

Bill 5 reduced Toronto's municipal wards from 47 to 25 mid-election.

The application judge found that the mid-campaign change substantially interfered with candidates' ability to communicate their political messages and violated voters' right to effective representation.

The Court of Appeal granted a stay of the lower court's order pending appeal, finding a strong likelihood that the application judge erred in law and that the appeal would succeed.

The court held that Bill 5 does not limit or restrict candidates' messages and that the right to effective representation falls under s. 3 (democratic rights), not s. 2(b) (freedom of expression), and s. 3 does not apply to municipal elections.

The province enacted Bill 5, reducing Toronto wards from 47 to 25, mid-municipal election.

Applicants challenged its constitutionality.

The court found Bill 5 violated candidates' and voters' freedom of expression under s. 2(b) of the Charter, as it substantially interfered with campaign communication and denied effective representation due to increased ward sizes.

The violation was not justified under s. 1, as the legislative objectives (better decision-making, voter parity) were not pressing and substantial enough to warrant mid-election implementation, nor was minimal impairment demonstrated.

The impugned provisions were declared unconstitutional and set aside, requiring the election to proceed with 47 wards.

The applicant City sought judicial review of an arbitrator's award that reduced the penalty imposed on two firefighters for off-duty impaired driving convictions.

The firefighters had lost their driver's licenses and were demoted for one year by the City.

The arbitrator substituted a two-day suspension, finding the demotions were disciplinary and the firefighters could still perform their core duties.

The Divisional Court dismissed the application, holding that the arbitrator's exercise of discretion to substitute the penalty was reasonable and fell within a range of acceptable outcomes.

The applicant union sought judicial review of an arbitral award that dismissed a grievance regarding the calculation of retirement gratuities for employees working less than 12 months per year.

The arbitrator found the employer's method of dividing yearly earnings in half to determine the six-month cap was reasonable and consistent with the Municipal Act paradigm referenced in the collective agreement.

The Divisional Court applied the reasonableness standard of review and concluded that the arbitrator's interpretation fell within the range of acceptable outcomes.

The application for judicial review was dismissed.

Two teachers appealed a finding of professional misconduct by the Discipline Committee of the Ontario College of Teachers.

The Committee had found them guilty for failing to 'immediately' notify the parents of a 16-year-old student who reported being sexually assaulted by other students during a school trip to Boston.

The Divisional Court quashed the Committee's decision, finding it unreasonable.

The Court held that the Committee erred by failing to identify any professional standard, misapprehending the law on standard of care and in loco parentis, improperly taking judicial notice of a 'notorious' standard, ignoring the student's rights, and failing to consider the teachers' good faith exercise of professional judgment in a complex situation.

The employer sought judicial review of an arbitrator's interim decision finding that the employer breached the collective agreement by denying an employee union representation during investigative meetings.

The union brought a motion to quash the application as premature, arguing the grievance on the merits had not yet been decided.

The Divisional Court agreed, finding no exceptional circumstances to justify fragmenting the ongoing administrative proceedings.

The application for judicial review was quashed as premature.

The applicants, suppression firefighters, sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed their age discrimination applications.

The applicants challenged the mandatory retirement age of 60, arguing the employer failed to accommodate them by not engaging in individualized testing for cardiac risk.

The Divisional Court dismissed the application, finding the Tribunal reasonably relied on established precedent that mandatory retirement for firefighters is a bona fide occupational requirement, and that the applicants failed to provide the necessary individualized medical evidence of extremely low cardiac risk to trigger the narrow exception for accommodation.

The applicant, a suppression firefighter, sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed his age discrimination complaint regarding mandatory retirement at age 60.

The Tribunal had dismissed the complaint under Rule 19A, finding no reasonable prospect of success based on a previous test case (Espey) that upheld the mandatory retirement provision as a bona fide occupational requirement.

The Divisional Court held that the Tribunal's decision was reasonable, as the applicant failed to provide evidence demonstrating that the result in his case would differ from the established precedent.

The applicant school board sought judicial review of a labour arbitration award that reinstated a teacher who had been dismissed for alleged misconduct involving students.

The board argued the arbitrator applied an incorrectly high standard of proof, drew an unreasonable adverse inference, and improperly excluded similar fact evidence.

The Divisional Court majority dismissed the application, finding that although the arbitrator misstated the law by referencing an intermediate standard of proof, a reading of the award as a whole demonstrated he actually applied the correct civil standard of a balance of probabilities.

The majority also found the arbitrator's treatment of the adverse inference and similar fact evidence was reasonable.

The dissenting judge would have allowed the application, concluding the arbitrator's misstatement of the standard of proof was a fatal error of law.

The applicant school board sought judicial review of an arbitrator's decision interpreting a regulation under the Education Act regarding teacher performance appraisals.

The arbitrator found that the regulation did not provide principals with unfettered discretion to conduct extra appraisals, and that being new to a school or division did not constitute 'circumstances' relating to performance under s.6(1).

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the arbitrator's interpretation justifiable, transparent, and intelligible.

The appellant, Hydro One Inc., appealed a Divisional Court decision upholding a Financial Services Tribunal order for a partial wind-up of its pension plan under s. 69(1)(d) of the Pension Benefits Act.

Following a corporate merger, the employment of 73 Management Compensation Plan (MCP) employees was terminated.

The Tribunal used a 'subset analysis' to determine that a 'significant number' of plan members had been terminated, comparing the number of terminated MCP employees to the total number of active MCP plan members.

The Court of Appeal dismissed the appeal, holding that s. 69(1)(d) permits a subset analysis in appropriate circumstances and that the Tribunal's application of this analysis was reasonable given that the merger intentionally targeted senior employees nearing retirement.

The applicant union sought judicial review of an arbitration award that dismissed its grievance regarding the assignment of teaching duties to principals and vice-principals.

The school board's assignment of these duties resulted in partial redundancies for some bargaining unit teachers.

The Divisional Court dismissed the application, finding the arbitrator's decision reasonable.

The court held that section 287.1(1) of the Education Act unambiguously permits a school board to assign teaching duties to principals and vice-principals, and that such assignments did not constitute a declaration of redundancy under O. Reg. 90/98.

The applicant sought judicial review of a labour arbitration award interpreting a collective agreement provision regarding health benefits coverage.

The City brought a preliminary motion to quash the application for delay, which the court dismissed, finding no inordinate delay or prejudice.

On the merits, the court applied the reasonableness standard of review and upheld the arbitrator's decision.

The court found that the arbitrator reasonably concluded the language of the collective agreement was unambiguous and correctly declined to admit extrinsic evidence.

The applicants sought judicial review of a decision by the Minister of Labour's delegate to revoke a prior order that authorized a multi-site joint health and safety committee for the respondent school board.

The applicants argued the delegate failed to consider statutory criteria, exercise discretion properly, and provide procedural fairness.

The Divisional Court dismissed the application, finding the delegate's decision was a discretionary administrative decision akin to public policy, owed significant deference, and was reasonable given the committee's dysfunction.

The defendant sought leave to appeal a decision certifying the plaintiffs as representative plaintiffs in a class action.

The motion for leave to appeal was denied with costs to the plaintiffs.

The plaintiffs sought costs of $35,280.51, while the defendant argued for $5,000.

The court found the plaintiffs' claim excessive but the defendant's proposal insufficient, considering the $11 to $16 million at issue, the historical context of the pension surplus, and the complexity of the issues.

Costs were fixed at $15,000 inclusive.

The applicant teachers' federation sought a stay of a Minister of Labour order pending judicial review.

The order revoked a previous designation allowing a multi-site joint Health and Safety Committee, requiring the school board to establish site-based committees at each of its 94 schools.

Applying the RJR Macdonald test, the court found there was a serious issue to be tried, but the applicant failed to demonstrate clear and non-speculative irreparable harm.

The balance of convenience favoured the respondent school board, as the multi-site system was not working and impeded its ability to comply with health and safety obligations.

The motion for a stay was dismissed.

The applicant sought judicial review of an arbitrator's decision denying accidental death and 'killed in the line of duty' benefits to the estate of a firefighter who died of renal cancer caused by occupational exposure to toxic substances.

The Divisional Court held that the arbitrator's application of common law insurance principles to conclude the death was not accidental was incorrect and rendered the decision patently unreasonable.

The Court found that the firefighter's death from an occupational illness was unexpected and not caused solely by natural causes, thus qualifying as an accidental death and occurring in the line of duty.

The arbitrator's award was quashed and the employer was ordered to pay the benefits.

The appellant employer appealed a Divisional Court decision upholding an arbitral award.

The arbitrator found that the employer was required under the collective agreement to pay the Ontario Health Premium on behalf of its employees.

The Court of Appeal dismissed the appeal, finding that the standard of review was patent unreasonableness and that the arbitrator's interpretation of the collective agreement was reasonable.

The court held that the reference to 'cost' in the agreement embraced the Ontario Health Premium, regardless of whether it represented 100 per cent of the cost of medicare.

The City of Hamilton applied for judicial review of an arbitrator's award which found that the City was required to pay the Ontario Health Premium on behalf of its employees under the collective bargaining agreement.

The Divisional Court determined that the appropriate standard of review was patent unreasonableness, as the arbitrator was interpreting the collective agreement, not the legislation.

The Court found the arbitrator's conclusion that the premium constituted a 'cost' of the medicare plan under the agreement was not patently unreasonable, and would have been upheld even on a correctness standard.

The application for judicial review was dismissed.

The employer laid off seniority employees and later proposed to recall them as seasonal employees at a lower wage rate, without the benefits accorded to seniority employees.

An arbitrator ruled that the employer could do so under the collective agreement's management rights clause, characterizing 'seasonal employee' as a job classification.

The Divisional Court quashed the award.

On appeal, the Court of Appeal affirmed that the standard of review for an Ontario labour arbitrator interpreting a collective agreement remains patent unreasonableness.

The Court held that the arbitrator's decision was patently unreasonable because 'seasonal employee' is an employment status, not a classification, and the collective agreement did not permit stripping recalled seniority employees of their acquired rights.