Hugh R. Scher

The applicant sought judicial review of a decision cancelling her transportation security clearance.

The cancellation was based on a police report noting a withdrawn shoplifting charge and an association with her son, who was allegedly known to police for involvement with firearms and drugs.

The Federal Court found the decision procedurally fair but substantively unreasonable because the allegations lacked specificity and discernable facts to support reasonable grounds to believe she posed a risk to aviation security.

The application for judicial review was allowed and the matter remitted for redetermination.

An appeal concerning a freedom of religion challenge to the medical and legal criteria for determining death.

The appellant's substitute decision-makers sought to prevent the withdrawal of life support and to rescind a death certificate based on the appellant's religious belief that death occurs only when the heart stops beating, not upon total brain death.

The Court of Appeal dismissed the appeal, upholding the application judge's conclusion that the claim could not succeed.

However, the court provided important guidance on the proper analytical approach to Charter rights and Charter values, clarifying that the appellant should have been presumed to be a Charter rights holder for purposes of the substantive analysis, and that the application judge erred in her methodology regarding freedom of religion analysis and Charter values application to the common law.

This application concerned the legal definition of death and the withdrawal of life support for Shalom Ouanounou, a devout Orthodox Jew, who was declared brain dead but whose family believed he was alive under Jewish law.

The applicant sought an injunction to prevent the withdrawal of life support, rescission of the initial death certificate, and a declaration that the Consent and Capacity Board had jurisdiction over such disputes.

Following Ouanounou's natural death, the court considered whether the application was moot.

Citing a recent decision in *McKitty v. Hayani*, which addressed similar issues, the court found the application moot as there was no longer a live controversy and declined to exercise its discretion to hear the academic issues.

The applicant, though unsuccessful in the main application concerning the determination of brain death and the withdrawal of life support, sought partial indemnity costs from the respondent physician, arguing the case involved significant public interest issues.

The respondent, who was successful, did not seek costs but argued for each party to bear their own costs.

The court acknowledged the public interest dimensions of the case, particularly regarding the common law definition of death and Charter rights, but found it did not meet the "truly exceptional" standard for special costs as set out in Carter v. Canada (Attorney General).

Crucially, the court noted a lack of authority for awarding costs to an unsuccessful litigant against a private individual respondent, as opposed to a government or public authority.

Consequently, the applicant's request for costs was denied, and parties were ordered to bear their own costs.

The applicant, who was declared dead by neurologic criteria (brain death), sought an order to be maintained on mechanical ventilation, arguing that her Christian belief that life continues as long as the heart beats should be accommodated under the Charter.

The Superior Court of Justice held that the common law definition of death includes brain death and that the applicant met the medical criteria for brain death despite exhibiting spinal reflex movements.

The court further held that the Charter does not apply to a deceased person or to a physician making a medical determination of death.

The common law definition of death was found to be consistent with Charter values, as the need for certainty and objectivity outweighs religious accommodation.

Finally, the court ruled that the Consent and Capacity Board lacks jurisdiction over disputes involving deceased persons, as mechanical ventilation of a corpse does not constitute 'treatment' under the Health Care Consent Act.

The application was dismissed.

The applicant sought leave to permit 72 hours of continuous videotaping of a patient who had been declared brain dead, arguing that her bodily movements were responsive to commands and indicative of brain function.

The respondent hospital and physicians opposed the motion, providing medical evidence that the movements were consistent with spinal reflexes and that ancillary tests showed no blood flow or electrical activity in the brain.

The court dismissed the motion, finding no scientific or medical support for the necessity of 72 hours of videotaping and concluding it would not assist the court in making a final determination.

The applicant sought to qualify Dr. Paul Byrne as an expert witness on the neurological determination of death (NDD) and related medical principles in an application to prevent the withdrawal of life support.

The court applied the Mohan criteria and the White Burgess gatekeeper framework to assess admissibility.

The court found that Dr. Byrne lacked the necessary training and experience with adults and the CMAJ Guidelines.

Furthermore, the court held that Dr. Byrne lacked independence and impartiality due to his demonstrated bias against the concept of brain death.

The request to qualify him as an expert was denied.

The applicant alleged that her employer failed to accommodate her disability following a motor vehicle accident and discriminatorily terminated her employment, and that her union discriminatorily withdrew her grievances.

The respondents sought to dismiss the application at a preliminary hearing, arguing it had no reasonable prospect of success given the applicant's settlement of a civil claim for long-term disability benefits and medical reports indicating she was totally disabled from working.

The Tribunal found that the applicant's own medical evidence demonstrated she was incapable of returning to work and that her prognosis was poor, meaning there was no reasonable prospect she could prove the employer failed to accommodate her or discriminatorily terminated her employment.

The allegations against the union were also dismissed as having no reasonable prospect of success.

The plaintiff moved for leave to amend his Statement of Claim to add claims for punitive and aggravated damages, and for further discovery, after the action had been set down for trial.

The proposed amendments arose from the defendant's late production of an accident investigation report.

The defendant opposed the motion, arguing the plaintiff failed to seek leave under Rule 48.04 and that the amendments raised a statute-barred new cause of action.

The court granted the motion, finding the amendments merely provided new legal characterizations of existing claims rather than a new cause of action, and the defendant demonstrated no non-compensable prejudice.

The applicant filed a human rights application regarding her dismissal from employment, while concurrent grievances were also filed on her behalf.

The Tribunal issued a Notice of Intent to Defer the application pending the conclusion of the grievance process.

The applicant opposed deferral, arguing that not all issues would be addressed in the grievances and that she had limited control over the grievance process.

The Tribunal found significant overlap in the issues, particularly regarding the dismissal, and held that the orderly administration of justice favoured deferral.

The application was deferred pending the completion of the grievance process.

The appellant appealed a family arbitration award that terminated a previously established education fund for the parties’ children and ordered the remaining funds returned to the parents.

The appellant argued procedural unfairness, an error in determining that the youngest adult child was not a “child of the marriage” due to disability, and a failure to apply constitutional and human rights norms requiring accommodation of disability.

The court held that the arbitrator applied the correct legal principles and reasonably concluded that the appellant had not proven the adult child met the statutory definition of “child of the marriage” under the Divorce Act at the relevant time.

The court also found no procedural unfairness in the arbitrator’s summary process and refused to admit fresh evidence regarding the child’s evolving educational plans.

The appeal was dismissed.

A unionized employee commenced a civil action alleging wrongful dismissal and seeking damages related to employment termination and retiree health benefits under a voluntary separation package and a related retiree benefits program.

The employer moved under Rule 21 to dismiss the action on the basis that the dispute fell within the exclusive jurisdiction of labour arbitration under s. 48 of the Labour Relations Act, 1995.

The employee sought leave to file a fresh as amended statement of claim focusing on entitlement to benefits under a retiree health benefits program.

Applying the Weber framework, the court held that the essential character of the dispute arose from the employment relationship governed by a collective agreement.

Because the claims were fundamentally employment-related and already the subject of a grievance process, the court lacked jurisdiction and the action had to proceed through labour arbitration.

The defendant employer brought a motion seeking leave to appeal an interlocutory order dismissing its motion for summary judgment in a wrongful dismissal action.

The underlying motion sought to fix a reasonable notice period while dismissing claims for bad faith, punitive damages, and intentional infliction of mental suffering.

The court held that the motions judge reasonably concluded that the evidentiary record raised genuine issues requiring a trial, particularly regarding the circumstances of the termination and potential mental suffering damages.

Applying rule 62.02(4) of the Rules of Civil Procedure, the court found no conflicting decisions and no reason to doubt the correctness of the order sufficient to justify leave.

Leave to appeal the costs order was also refused given the small quantum at issue and the motions judge’s broad discretion in fixing costs.

The defendant employer brought a motion for summary judgment in a wrongful dismissal action where the employee had been terminated with eight months’ compensation in lieu of notice.

The employee claimed damages for wrongful dismissal, moral damages, intentional infliction of mental suffering, and punitive damages.

The court found that the termination occurred in the context of an investigation into alleged misconduct and that the circumstances surrounding the investigation and termination could support claims for additional damages.

Because the plaintiff raised triable issues regarding stigma, alleged bad faith in the termination process, and the assessment of damages, the court held that a full appreciation of the issues required a trial.

The applicant, who has complex health problems, alleged discrimination on the basis of disability regarding the provision and eventual termination of home care services by the SECCAC and the respondent Ministries.

The Tribunal held a summary hearing to determine if the application had no reasonable prospect of success.

The Tribunal dismissed the claims against the Ministries, finding no Code requirement for government benefit programs to be perfectly tailored to individual needs.

The Tribunal also dismissed most claims against the SECCAC regarding the quality of care and failure to accommodate, as disagreements over medical care do not constitute discrimination.

However, the Tribunal allowed the allegation that the termination of services was discriminatory to proceed, as it required evidence to determine if the complexity of the applicant's disability was a factor in the service providers' refusal to work.

The Ontario College of Teachers brought a discipline proceeding against a member for professional misconduct and sexual abuse of a former student.

The member engaged in inappropriate electronic communications with the student and met with her outside of school on several occasions, during which physical contact occurred.

The member had previously been reprimanded by his school board for similar conduct but continued the relationship.

The Discipline Committee found the member guilty of professional misconduct and sexual abuse, rejecting his claim that he was merely trying to end the relationship.

The Committee ordered the revocation of the member's Certificate of Qualification and Registration.

On a Rule 21 motion to strike in an international air carriage action, the court determined whether the Montreal Convention governed claims arising from in-flight conduct, disembarkation, police detention, and alleged illness.

The court held article 17 applied because the pleaded incident formed a continuous chain beginning on board and continuing through disembarkation, and qualified as an accident under the Convention.

Claims for psychological harm, mental distress, and punitive or exemplary damages were held unrecoverable under article 29 and settled jurisprudence where no compensable bodily injury was pleaded for those heads.

The claim for bodily injury based on alleged severe bronchitis was permitted to proceed.

The motion was therefore granted in part with the remaining claim limited to bodily injury damages.

The respondent opposed the appointment of the applicant's mother as her litigation guardian, arguing she had a conflict of interest because her own actions were at issue in the dispute over the termination of the applicant's support services.

The Tribunal applied the test for litigation guardians, finding that a clear and demonstrated conflict of interest is required to disqualify a proposed guardian.

The Tribunal held that the mother's interest in vindicating her own actions did not conflict with her interest in pursuing the applicant's rights, and appointed her as litigation guardian.

The applicant, a former part-time cook, alleged she experienced a sexually poisoned work environment, discrimination based on ancestry, reprisal, and termination due to a disability.

The Tribunal found the applicant's evidence lacked credibility and reliability, noting her allegations were largely uncorroborated, prone to exaggeration, and not raised prior to her termination.

The Tribunal found the termination was justified by the applicant distributing vitriolic and offensive packages to her managers and co-workers.

The application was dismissed in its entirety.

The applicant, who suffered from coronary artery disease, alleged that he experienced harassment in employment because of his disability during a warehouse consolidation process.

He claimed that various management representatives made inappropriate comments, coerced him regarding long-term disability benefits, and threatened to cut off his sick leave when he failed to provide comprehensive medical consent.

The Tribunal found that while one manager's comment about doctors writing whatever employees want was unfortunate and vexatious, it was an isolated incident that did not amount to a course of conduct required for harassment.

The Tribunal dismissed the remaining allegations, finding the employer's actions in requesting medical information and managing the accommodation process were reasonable and not discriminatory.