J. Douglas Cunningham

The applicant employer sought judicial review of the Ontario Labour Relations Board's decision to certify a union without considering the employer's late-filed response.

The Board had concluded that the word 'shall' in section 128.1(3) of the Labour Relations Act, 1995 was mandatory, precluding it from considering information filed after the two-day statutory time limit.

The Divisional Court applied the pragmatic and functional approach, determining the standard of review was correctness.

The Court held that the Board erred in its interpretation, finding that 'shall' in this context is directory and that the Board has the discretion to remedy the breach and consider late-filed information.

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

The City of Ottawa sought judicial review of an Arbitration Board decision that reinstated an employee who had been terminated for excessive absenteeism under a Last Chance Agreement.

The Board found that the employee suffered from a disability (an anxio-depressive state) and that the City discriminated against her by counting disability-related absences toward the threshold in the agreement.

The Divisional Court dismissed the application, holding that the appropriate standard of review was patent unreasonableness and that the Board's findings of disability and prima facie discrimination were supported by the evidence and not patently unreasonable.

The applicant sought judicial review of an interim decision by the Human Rights Tribunal of Ontario, which found it had jurisdiction to hear a complaint regarding a withdrawn job offer following a positive pre-employment drug test for marijuana.

The Divisional Court held that the Tribunal erred in law by failing to dismiss the complaint, as recreational marijuana use without actual or perceived disability does not fall under the protected ground of disability in the Human Rights Code.

The Court granted an order of prohibition preventing the Tribunal from hearing the complaint.

The tenants appealed an order of the Ontario Rental Housing Tribunal awarding them $2,000 after the landlord disposed of their possessions following an eviction.

The tenants sought $30,000 and argued the Tribunal erred by failing to give reasons for the quantum of damages and for not allowing them to proceed in court.

The Divisional Court allowed the appeal, holding that the failure to give reasons is an error of law, and set aside the damages award, allowing the tenants to elect whether to proceed before the Tribunal or a court.

The appellant appealed his murder conviction, arguing the trial judge erred in instructing the jury on the common sense inference of intent and in delivering an inadequate Vetrovec warning.

The Court of Appeal dismissed the appeal, finding the instruction on intent was properly left as permissive and appropriate for party liability.

The Court also held the Vetrovec warning was adequate, noting both counsel approved the illustrations of potential confirmatory evidence and did not object to the instruction at trial.

The appellant appealed the dismissal of his application seeking a declaration that certain lands in Ontario are not public lands available for disposition or regulation by the Crown.

The motion judge struck the application on the basis that the courts lack authority to adjudicate challenges to Canada's sovereignty.

The Court of Appeal agreed, finding that the appellant's claim amounted to a challenge to sovereign jurisdiction, and dismissed the appeal.

The appellants appealed a trial judgment, arguing the trial judge reversed the onus of proof and misapprehended evidence regarding a contract dispute.

The Court of Appeal dismissed the appeal, finding that because time was not of the essence, the appellants bore the onus to prove the respondent caused the delay and resulting damages.

The court also found no palpable and overriding error in the trial judge's factual findings, noting the appellants continued to pay the respondent without complaint until well after completion.

The appellant appealed a trial judge's decision regarding the interpretation of a divorce judgment and the applicable interest rate.

The divorce judgment entitled the respondent to a share of the appellant's pension benefits when he received them.

The appellant argued he did not receive the benefits until he began receiving monthly annuity payments.

The Court of Appeal upheld the trial judge's finding that the appellant received his benefits when he retired early and transferred the funds into a locked-in RRSP, as he had control over them at that time.

The Court also upheld the 10% interest rate specified in the divorce judgment.

The appeal was dismissed.

The appellant appealed an order striking his statement of claim and upholding his expulsion from the respondent yacht club.

The appellant argued he lacked proper notice of the board meeting that led to his expulsion and that the board was biased.

The Court of Appeal upheld the motion judge's findings that proper notice was given and no disqualifying bias existed.

However, the Court found the motion judge erred in striking one paragraph of the statement of claim which pleaded a potentially defamatory statement and discoverability.

The appeal was allowed in part to permit the appellant to file an amended statement of claim regarding that single allegation, but otherwise dismissed with costs to the respondents.

The tenant appealed a decision of the Ontario Rental Housing Tribunal, which had dismissed his claim for general damages on the basis that it lacked jurisdiction.

The tenant and his family had been assaulted by the landlord's friends in an attempt to force them to vacate, breaching the covenant of quiet enjoyment.

The Divisional Court held that the Tribunal erred in law, finding that the residual power to 'make any other order that it considers appropriate' under the Tenant Protection Act includes the jurisdiction to award damages for breach of contract.

The Court allowed the appeal and awarded the tenant $4,000 in damages.

The appellant appealed the trial judge's decision regarding costs and punitive damages.

The Court of Appeal upheld the trial judge's conclusion that the respondent's allegations in its defence and counterclaim did not amount to fraud or improper conduct seriously prejudicial to character or reputation.

The appeal was dismissed with costs fixed at $4,000.

The applicant employer sought judicial review of a labour arbitrator's interim award ordering it to make ex gratia payments to a grieving employee whose sick leave benefits had been terminated.

The Divisional Court held that while the arbitrator's interpretation of the Labour Relations Act as granting jurisdiction for the interim award was unreasonable, his alternative reliance on the collective agreement was not patently unreasonable.

The interim award was upheld and the application for judicial review was largely dismissed.

The appellant insurer appealed a decision certifying a class proceeding regarding the application of deductibles to total loss automobile claims.

After the initial certification motion was remitted by the Court of Appeal, a subsequent five-member panel of the Court of Appeal in a different case (Polowin) reversed the interpretation of the relevant statutory condition, finding that insurers could apply deductibles.

The Divisional Court held that putative class members were not privies to the representative plaintiff prior to certification, meaning issue estoppel did not apply.

As the current law established no cause of action, the certification order was set aside.

The plaintiff brought a class action against the manufacturer of a medical device and the Attorney General of Canada, alleging Health Canada was negligent in its regulation of the device.

The Attorney General moved to strike the claim on the basis that it owed no private law duty of care to the plaintiff.

The motions judge dismissed the motion, finding a full factual record was necessary.

On appeal, the Divisional Court allowed the appeal and struck the claim, holding that it was plain and obvious under the Anns test that the federal government did not owe a private law duty of care to individual consumers of medical devices, and that residual policy considerations negated any such duty.

The appellants appealed an order granting an injunction against them for obstructing access to the respondent's work site during a labour dispute.

The appellants argued that a protocol had been agreed upon and successfully applied by the police.

The Court of Appeal found no palpable and overriding error in the trial judge's finding that no such agreement existed and that the union's imposition of a one-hour delay for entering vehicles amounted to unlawful obstruction.

The court upheld the trial judge's application of the R.J.R-MacDonald factors and dismissed the appeal, subject to removing the union as a named party.

The appellant appealed a decision including a jointly owned life insurance policy in the deceased's estate under s. 72(1)(f) of the Succession Law Reform Act.

The policy was purchased jointly by the deceased and his spouse to pay down their mortgage, with the survivor receiving the proceeds.

The Divisional Court allowed the appeal, holding that the mere fact of joint ownership of the policy was not enough to trigger s. 72(1)(f), and the policy should be excluded from the estate available for distribution to dependants.

A dissenting opinion would have dismissed the appeal, finding the policy fell within the specific provisions of the Act.

The appellants appealed the judgment of the Superior Court of Justice regarding their liability.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact were supported by the evidence and that she reached the correct result.

Costs were awarded to the respondent in the amount of $10,000.

The Crown appealed the acquittal of a young person charged with a sexual offence.

The trial judge had found the evidence of non-consensual sex overwhelming, except for the complainant's muted response and her accompanying the respondent behind a building.

The Court of Appeal held that the trial judge erred in law by relying on the muted response to raise a reasonable doubt about consent.

The appeal was allowed and a new trial ordered.

The appellant appealed the dismissal of a claim for negligent investigation against the respondent, alleging the respondent provided false information to the police leading to the appellant's wrongful arrest.

The Court of Appeal dismissed the appeal, finding it plain and obvious that no duty of care existed, as it was not reasonably foreseeable that the police would arrest the appellant without independently determining reasonable and probable grounds.

A cross-appeal regarding a conspiracy claim was allowed, dismissing the claim with leave to amend to plead better particulars.

The landlord appealed a tribunal decision, arguing the Member erred in law by finding there was no evidence that the landlord or her parents had previously resided in the unit.

The Divisional Court dismissed the appeal, concluding the tribunal Member found there was no evidence that the father had been a genuine occupant of the premises within the meaning of the statute.