James K. McDonald

This decision concerns the approval of a $30 million settlement in a class action alleging that major junior hockey players were employees entitled to minimum wage and other benefits.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, given the high litigation risks and uncertain legal landscape.

The court also approved Class Counsel's fees but declined to approve honoraria for the representative plaintiffs, reiterating that such awards should be rare and reserved for exceptional contributions.

The appellant, a unionized employee of the Ontario Public Service, commenced a civil action against her employer and union alleging workplace discrimination and harassment.

The motion judge dismissed the action for lack of jurisdiction, finding that the essential character of the dispute arose from the collective agreement and was therefore within the exclusive jurisdiction of a labour arbitrator or the Human Rights Tribunal of Ontario.

On appeal, the appellant argued that section 46.1 of the Human Rights Code granted the court concurrent jurisdiction.

The Court of Appeal dismissed the appeal, affirming that section 46.1 does not override the exclusive jurisdiction of labour arbitrators where the dispute arises from a collective agreement and no independent civil wrong is pleaded.

The representative plaintiffs in three related class actions concerning the employment status of major junior hockey players sought approval of a $30 million settlement.

The court declined to approve the settlement because of an eleventh-hour objection raising concerns that the standard form release in the settlement agreement might bar class members from pursuing other existing class actions against the defendants for concussions, sexual abuse, and anti-competitive behaviour.

The court found that the release needed to be renegotiated to ensure it did not prejudice class members' rights in those other actions.

The plaintiff, a unionized employee, commenced a civil action against her employer (the Crown) and her union (AMAPCEO) alleging discrimination and harassment arising from her employment.

The defendants moved to dismiss the action for lack of jurisdiction, arguing that the dispute fell under the exclusive jurisdiction of grievance arbitration or the Human Rights Tribunal of Ontario (HRTO) due to the collective agreement.

The court granted the motion, holding that the essential character of the dispute arose entirely from the employment relationship governed by the collective agreement, and the plaintiff's claims did not present an independent civil wrong to "piggyback" human rights claims in court.

The court affirmed that the HRTO remains an available forum for the plaintiff's human rights complaints.

Several trade unions and the Canadian Labour Congress brought motions for leave to intervene as added parties or as friends of the court in an action challenging the constitution of the Amalgamated Transit Union.

The moving parties argued they had an interest in the proceeding because their own constitutions contained similar provisions and they could be adversely affected by the precedent.

The court dismissed the motions, finding that an interest based solely on the potential precedential effect of a decision is insufficient for intervention as an added party under Rule 13.01.

The court also denied leave to intervene as friends of the court under Rule 13.02, concluding that the proposed interveners' submissions would largely duplicate the arguments of the defendant union and would not provide a materially different perspective.

The representative plaintiff in a class action regarding pension benefits for employees transferred to Community Care Access Centres moved for settlement approval, fee approval, and an amendment to the class definition.

The plaintiff alleged the government breached a 'no loss' commitment regarding pension benefits.

The court approved the amendment to the class definition to include certain union members.

The court also approved the settlement of $752,500, providing $2,500 per class member, finding it fair and reasonable given the significant litigation risks, including a limitation period defence.

Class counsel fees up to $75,000 were also approved.

The plaintiff appealed a motion judge's refusal to approve a class action settlement regarding alleged copyright infringement by the defendant's online legal database.

Following Supreme Court of Canada decisions that significantly enhanced the defendant's fair dealing defence, the parties agreed to a settlement including a cy-près payment and a non-exclusive licence from class members.

The Divisional Court allowed the appeal and approved the settlement, finding the motion judge erred in characterizing the licence as a property right and in elevating the standard for settlement approval by introducing 'institutional fairness' as a new factor.

The applicant commenced a Charter challenge against an Ontario regulation that terminated OHIP funding for sex reassignment surgery.

After years of complex litigation and shortly before the hearing on the merits, the government repealed the impugned regulation, rendering the application moot.

The applicant sought her costs thrown away.

The court held that the applicant was substantially successful in achieving her goal through the policy change and awarded her partial indemnity costs fixed at $200,000, noting the importance of not penalizing pro bono counsel in public interest litigation.

The applicant employer sought judicial review of a Grievance Settlement Board decision reinstating a probationary employee.

The employee had been terminated for performance issues shortly after disclosing a struggle with depression.

The Board found the termination was arbitrary and discriminatory.

The Divisional Court quashed the Board's decision, holding that the employer had repeatedly communicated performance expectations and the termination was based on legitimate performance concerns, making the Board's findings of arbitrariness and discrimination unreasonable.

The respondent union brought a motion to dismiss four applications for judicial review commenced by the self-represented applicant.

The applicant had failed to set any of the applications down for a hearing, resulting in delays ranging from over two to nearly five years.

The court found the delay to be unacceptable and that it caused obvious prejudice in the employment context.

The court also noted the applicant's history of abusing tribunal processes and acting as a vexatious litigant.

The motion was granted, the applications for judicial review were dismissed, and the applicant's cross-motion was dismissed.

The applicant requested an adjournment of four motions brought by the respondent to dismiss his applications for judicial review for delay.

The applicant claimed he was unavailable and unable to prepare due to university obligations and a need to clarify opposing counsel's instructions.

The court dismissed the adjournment request, finding the applicant had been given every reasonable opportunity to schedule the hearing and had used delay tactics, noting he was nonetheless able to prepare a cross-motion and submissions.

The applicant union brought an application for judicial review of an arbitration award that denied a grievance claiming a retired employee was entitled to three additional weeks of vacation pay.

The grievance turned on the interpretation of a Clarity Note in the collective agreement.

The Divisional Court dismissed the application, finding that the arbitrator's interpretation of the Clarity Note and the collective agreement was reasonable and met the Dunsmuir requirements of transparency, intelligibility, and justification.

The applicant university sought judicial review of an arbitration award that granted a former employee sick leave benefits for a period after his fixed-term employment contract had expired.

The arbitrator found that the employee's entitlement to the benefits had vested while he was still employed, bridging the gap to his long-term disability benefits.

The Divisional Court dismissed the application, holding that the standard of review was reasonableness and that the arbitrator's interpretation of the collective agreement was transparent, rational, and justified.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his discrimination complaint against his employer and union to the Human Rights Tribunal.

He alleged a denial of natural justice because the Commission failed to interview certain witnesses and consider evidence of systemic discrimination.

The Divisional Court dismissed the application, finding no breach of procedural fairness as the un-interviewed witnesses lacked direct knowledge, and holding that the Commission's conclusion of insufficient evidence of discrimination was reasonable given the applicant's objective test scores.

The applicant sought judicial review of an Ontario Labour Relations Board decision declaring the applicant and Metro Waste Paper Recovery Inc. to be related employers under s. 1(4) of the Labour Relations Act, 1995.

The applicant argued the Board erred by applying s. 1(4) without first determining the 'true' employer and by exercising its discretion without identifying labour relations mischief.

The Divisional Court dismissed the application, finding the Board's decision was reasonable, fact-driven, and within its specialized expertise.

The Board properly identified that a single employer declaration would undermine collective bargaining rights and create an unviable bargaining structure.

The applicant sought to have no costs awarded following an unsuccessful application and motion.

The Divisional Court held that costs should follow the event, as there was no novel issue or public interest raised.

The court rejected the York University Faculty Association's request for substantial indemnity costs and awarded $1,500 to York University and $3,500 to the Faculty Association, payable by the applicant.

The applicant sought judicial review of two decisions by the Ontario Labour Relations Board that adjourned his unfair representation complaints against the faculty association pending the outcome of a related grievance arbitration.

The applicant alleged procedural unfairness, reasonable apprehension of bias, and unreasonableness in the Board's decision to grant the adjournment and extend time for the respondents.

The Divisional Court dismissed the application, finding no denial of procedural fairness, no reasonable apprehension of bias, and that the Board's discretionary decision to adjourn the premature complaints was reasonable.

The Court also noted the application was premature as the Board had not yet determined the merits of the complaints.

The union appealed a Divisional Court decision that quashed an arbitrator's award regarding holiday pay for part-time employees.

The arbitrator had found the collective agreement ambiguous and used extrinsic evidence to rule in the union's favour.

The Court of Appeal held that the arbitrator's decision was subject to a reasonableness standard of review.

Finding that the arbitrator's conclusion on ambiguity and his use of extrinsic evidence were reasonable, the Court of Appeal allowed the appeal and reinstated the arbitrator's award.

The applicant ballet company sought a stay of an interim arbitral award that suspended the non-renewal of the respondent dancer's employment contract and ordered her reinstatement pending a final decision.

The applicant argued the arbitrator lacked jurisdiction to order reinstatement under the Labour Relations Act.

The court dismissed the motion for a stay, finding that while there was a serious question to be tried regarding jurisdiction, the applicant failed to establish irreparable harm.

The balance of convenience strongly favoured the respondent, as a further hiatus in dancing would likely end her career, whereas the applicant would not suffer a fatal blow if she were reinstated.

A group of university professors and a librarian challenged mandatory retirement policies at age 65 and the exclusion of those over 65 from employment discrimination protection under provincial human rights legislation.

The majority held that universities were not part of government for Charter purposes under s. 32, so their retirement policies were not directly subject to Charter review.

The Court further held that the statutory exclusion of workers aged 65 and over from protection against age discrimination infringed s. 15(1), but was justified under s. 1 in light of the legislature's cautious approach to complex labour market, pension, and workplace-organization concerns.

The appeal was dismissed, with dissenting judges finding the Charter applicable to universities and rejecting the statutory justification.