Ian R. Dick

A former corporate officer brought a motion for summary judgment or partial summary judgment seeking dismissal of claims in a counterclaim alleging participation in a fraudulent kickback scheme involving commission payments under a produce distribution program.

The moving party argued the claims were unsupported by evidence and barred by the limitation period.

The court held that the dispute involved a complex factual matrix intertwined with claims proceeding to trial against other parties and required credibility determinations not suitable for summary judgment.

The court also found an issue of discoverability regarding the limitation period.

Leave was granted to amend the counterclaim to add a claim for gross negligence, as the amendment was tenable and caused no uncompensable prejudice.

The plaintiff employer moved for default judgment against two former employee accountants alleged to have misappropriated corporate funds over several years.

Evidence from an internal investigation and a forensic consulting report established that the defendants conducted numerous fraudulent withdrawals and falsified accounting records.

The court held the pleadings and affidavit evidence established liability for conversion, fraud, and breach of fiduciary duty and granted judgment for proven losses totaling over $1.96 million, but declined to include certain suspicious transactions that could not be adequately traced to the defendants.

Punitive damages were awarded due to the deliberate and prolonged abuse of positions of trust, though the amount sought was reduced after considering the defendants’ gambling disorder evidence, ongoing criminal proceedings, and proportionality.

The court also awarded investigative costs and substantial indemnity legal costs.

The applicant hospital sought judicial review of an arbitration award that found the termination of a nurse's employment amounted to double jeopardy.

The nurse had previously been suspended for her involvement in the assault of a patient, but the hospital later terminated her employment, claiming it had obtained new information about her role.

The arbitrator concluded there was no new information, only a reassessment of existing information, and thus the termination constituted double discipline for the same misconduct.

The Divisional Court dismissed the application, finding the arbitrator's decision was reasonable and fell within the range of acceptable outcomes.

Two hospitals sought judicial review of arbitration awards that found they violated their collective agreements by contracting out the work of Sterile Processing Technicians without issuing layoff notices.

The arbitrators held that the contracting out resulted in a layoff, entitling affected employees to notice and bumping rights.

The Divisional Court applied the reasonableness standard of review and dismissed the applications, finding that the arbitrators' interpretation of the collective agreements was justified, transparent, intelligible, and within the range of acceptable outcomes.

The applicant employer sought judicial review of an arbitrator's decision regarding whether periods of leave run concurrently with layoff notices under a collective agreement.

The arbitrator found that while notice periods can run concurrently with leave, doing so may be discriminatory under the Human Rights Code if the employee is unable to meaningfully consider their options while on leave.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement and application of human rights principles was reasonable.

The applicant sought judicial review of a preliminary ruling by the Ontario Labour Relations Board regarding the arbitrability of a grievance.

The Divisional Court quashed the application as premature, applying the general rule that courts will not entertain judicial review of preliminary rulings while tribunal proceedings are pending, absent exceptional circumstances.

The court found no exceptional circumstances to justify bifurcating the ruling from the merits.

The union brought a motion to strike an affidavit filed by the employer in a pending application for judicial review of a labour arbitration award.

The affidavit, sworn by the employer's counsel, alleged that the arbitrator's award misstated the employer's admissions and submissions regarding the purpose of a layoff notice provision.

The Divisional Court dismissed the motion, finding that the affidavit fell within the narrow exception permitting extrinsic evidence on judicial review to show a complete absence of evidence for a factual finding or a breach of natural justice.

The court held that binding the employer to admissions or positions it did not take would produce a denial of natural justice.

The appellant appealed a motion judge's decision finding that its collective agreement with the school board did not meet the definition of 'Collective Agreement' under a trust agreement.

The Court of Appeal allowed the appeal, holding that the affiliated union was bound by the collective agreement under the Labour Relations Act, which satisfied the trust agreement's definition.

The collective agreement therefore governed the payments into the trust.

The applicant employer sought judicial review of an arbitration award finding that a re-qualification provision for short-term disability benefits was discriminatory.

The provision required employees to work three continuous 'regular work weeks' to re-qualify for benefits, which disadvantaged employees with partial disabilities who could only return to work part-time.

The Divisional Court applied the reasonableness standard of review and upheld the arbitrator's decision, finding that the provision discriminated against workers with partial disabilities who might never re-qualify for benefits despite working continuously at a reduced level.

Following a successful appeal regarding the right to issue third party claims, the appellants sought costs.

The parties agreed on the quantum of costs but disputed the timing of payment.

The Court of Appeal ordered costs payable forthwith, finding no special circumstances to justify a delay in payment.

The appellants, an actuary and his employer, were sued by the successor administrator of a pension plan for allegedly preparing negligent actuarial reports that allowed the plan sponsor to underfund the plan before entering CCAA protection.

The appellants sought to bring third-party claims against the sponsor's former directors and officers, alleging they instructed the actuary to use improper methods.

The motion judge struck the third-party claims, finding they disclosed no reasonable cause of action.

The Court of Appeal allowed the appeal, holding that the successor administrator's claim did not depend on the sponsor's reasonable reliance on the reports, and that the CCAA orders protecting directors and officers did not bar the third-party claims because the individuals were acting as agents of the plan administrator, not merely as corporate directors.

The applicant sought judicial review to quash an arbitrator's award that allowed a grievance regarding holiday pay for daycare workers.

The arbitrator had interpreted the collective agreement to conclude that holiday pay was conditional on the employee working the day immediately following the holiday they were required to work, which in this case was after a summer layoff.

Applying the reasonableness standard of review from Dunsmuir, the Divisional Court found the arbitrator's subjective interpretation of the collective agreement was within a range of reasonable outcomes.

The application for judicial review was dismissed.

The applicant sought judicial review of a college appeal committee's decision upholding his involuntary withdrawal from a nursing program.

He alleged a reasonable apprehension of bias because one panel member, the college registrar, had previously reviewed his file and discussed his case with him.

A majority of the Divisional Court found that the prior undisclosed involvement did create a reasonable apprehension of bias.

However, the Court unanimously dismissed the application, concluding that the applicant had impliedly waived any objection by failing to raise the issue at the hearing despite being represented by counsel.

The applicants sought judicial review of planning applications filed by a land developer for a residential subdivision near proposed airport lands.

The applicants argued the applications were nullities under the Greenbelt Protection Act, 2004, which imposed a development freeze on lands outside urban settlement areas.

The Divisional Court agreed, finding the lands were not designated as an urban settlement area when the Act came into effect.

The court declared the applications and subsequent municipal decisions nullities, and prohibited the Ontario Municipal Board from hearing appeals related to the applications, as it lacked jurisdiction.

Amertek Inc. sued the Canadian Commercial Corporation (CCC) after losing money on a subcontract to supply fire crash trucks to the U.S. Army.

The trial judge found CCC liable for deceit, breach of fiduciary duty, breach of contract, and unjust enrichment, awarding disgorgement of a re-procurement penalty CCC avoided.

On appeal, the Court of Appeal overturned the trial decision, finding palpable and overriding errors in the trial judge's conclusions.

The Court held that CCC's statements about the contract's profitability were not false when made, Amertek did not rely on them, the relationship was purely commercial rather than fiduciary, and there was no breach of contract or unjust enrichment.

The appeal was allowed and Amertek's action was dismissed.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.

Following the release of reasons for judgment allowing the appeals by the Canadian Red Cross Society and Canada, the Court of Appeal received written submissions on the costs of the trial.

The Court ordered that the Canadian Red Cross Society shall have its costs on a party-and-party scale from the plaintiffs, with no costs to or against Canada or Ontario.

The disposition of Bayer's costs ordered by the trial judge was not disturbed.

The plaintiffs, who suffered from Hemophilia B, contracted HIV from unheated Factor IX blood products distributed by the Canadian Red Cross Society (CRCS).

They sued the CRCS, Bayer, and Ontario in negligence, alleging a delay in the introduction of heat-treated Factor IX.

The CRCS claimed over against Canada, alleging regulatory delay.

The trial judge found the CRCS and Canada liable for delaying the transition to heat-treated products.

On appeal, the Court of Appeal overturned the trial decision, finding that the CRCS and Canada did not breach their respective standards of care, as the delay was due to necessary regulatory approvals.

The Court also found that the plaintiffs failed to prove the dates of their infections, which was fatal to causation, and that the trial judge erred in drawing adverse inferences against the CRCS for not calling certain witnesses.