Katherine E. Swinton

The applicant sought judicial review of three decisions of the Ontario Labour Relations Board dismissing his unfair labour practice and duty of fair representation complaints against his former employer and union.

The complaints arose after the applicant's employment was terminated following allegations of sexual harassment, which was subsequently resolved through Minutes of Settlement.

The Divisional Court dismissed the application, finding no denial of procedural fairness and concluding that the Board's decisions were reasonable.

The City of Toronto and its Clerk brought an application for declaratory relief regarding the coming into force of by-laws establishing a 47-ward structure for the 2018 municipal election and the resulting composition of city council.

The respondents had previously raised concerns about a potential 'legal vacuum' in their unsuccessful motion for leave to appeal an Ontario Municipal Board decision.

The Superior Court of Justice dismissed the application, declining to exercise its discretion to grant declaratory relief because there was no live legal dispute between the parties, affected voters had not been given notice, and the application effectively sought an inappropriate advisory opinion.

The moving parties sought leave to appeal an Ontario Municipal Board decision approving a 47-ward structure for the City of Toronto's municipal elections.

They argued the Board erred in law by failing to prioritize voter parity and by not requiring a corresponding by-law changing the composition of City Council.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the Board's application of the Carter principles for effective representation.

The court held that the moving parties were improperly challenging findings of fact and that the Board lacked jurisdiction to determine council composition.

The employer sought an interim stay of Ontario Labour Relations Board orders that found certain franchisees to be dependent contractors, pending an application for judicial review.

The court dismissed the motion, finding that the judicial review application was premature as the certification process was ongoing.

The court also held that the employer failed to establish irreparable harm, as the alleged harms were speculative, and the balance of convenience favoured the union due to the lengthy delays already experienced in the certification process.

The Workplace Safety and Insurance Appeals Tribunal brought a motion to strike and dismiss an application for judicial review as an abuse of process.

The applicant had previously sought judicial review of a Tribunal decision regarding her non-economic loss benefit, which was dismissed by the Divisional Court.

She then brought a new application seeking judicial review of the Tribunal's reconsideration decision on the same issue.

The court found the new application to be an abuse of process and an improper collateral attack on the earlier Divisional Court decision, as the grounds were substantially the same and the issues had already been determined.

The motion was granted and the application was dismissed with costs.

The appellant appealed the dismissal of his motion seeking leave to bring a derivative action in the name of the respondent corporation pursuant to s. 246 of the Business Corporations Act.

The appellant argued the motion judge applied the wrong legal test and considered irrelevant factors when determining whether the action appeared to be in the interests of the corporation.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the legal test and appropriately considered multiple relevant factors, including the appellant's negligible shareholdings, the lack of support from other shareholders, and the potential diversion of management resources.

The applicant Employer sought judicial review of an arbitration award that reclassified the Employment Relations Officer position to a higher level.

The Employer argued it was denied procedural fairness because the arbitrator failed to bifurcate the hearing, depriving it of the opportunity to lead evidence on the proper classification level.

The Divisional Court dismissed the application, finding that the Employer should have known classification was in issue given the evidence and submissions presented at the hearing without objection.

The Children's Aid Society of Ottawa brought a motion to set aside a legal ruling made by a motion judge who had dismissed its motion for summary judgment.

The underlying appeal had already been heard and dismissed, rendering the current motion moot.

The Divisional Court declined to exercise its discretion to hear the moot case, noting the lack of an adversarial context, judicial economy concerns, and the fact that the applicant was seeking a broad declaration rather than overturning an order.

The motion was dismissed.

The University of Ottawa brought a motion to set aside a decision finding that the Divisional Court had jurisdiction to hear an application for judicial review brought by the Association of Professors of the University of Ottawa.

The Association sought to challenge the compensation paid to two non-unionized employees, arguing it violated wage restraints under the Broader Public Sector Accountability Act, 2010.

The Divisional Court granted the motion and quashed the application, holding that the compensation decision was essentially a private employment matter lacking the requisite public law dimension for judicial review.

The plaintiff was acquitted of murder following a 'Mr. Big' sting and sued the police for negligent investigation, as well as the Crown attorneys who provided legal advice to the police.

The police defendants cross-claimed against the Crown attorneys for contribution and indemnity based on negligent legal advice.

The Crown attorneys moved to strike the cross-claim under Rule 21.

The motion judge declined to strike the cross-claim, finding it was not plain and obvious that prosecutorial immunity applied to claims by police.

The Divisional Court allowed the appeal and struck the cross-claim, holding that Crown attorneys enjoy absolute immunity from civil suits in negligence arising from the exercise of their official functions, including providing legal advice to police during an investigation.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his human rights application for delay.

The incidents complained of occurred between 2003 and 2012, well beyond the one-year limitation period under section 34 of the Human Rights Code.

The Divisional Court found the Tribunal's decision reasonable, as the applicant failed to provide a good faith reason for the delay and could not establish a series of incidents extending into the limitation period.

The application for judicial review was dismissed.

The sellers appealed an order directing the release of a $50,000 deposit to the purchaser after a failed commercial real estate transaction.

The sellers argued the purchaser committed an anticipatory breach, relieving them of the obligation to tender.

The Divisional Court dismissed the appeal, upholding the application judge's finding that ongoing negotiations to extend the closing date negated any repudiation.

Because there was no accepted repudiation, the sellers were required to tender to enforce the agreement, which they failed to do.

The purchaser was therefore entitled to the return of its deposit.

The appellants appealed a summary judgment order requiring them to pay an outstanding amount on a business loan.

The appellants argued defences of non est factum and unconscionability regarding the personal liability of the individual owner.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion that there was no genuine issue requiring a trial, given the clear structure of the loan document and warnings respecting personal liability.

The moving party Estate sought leave to appeal two final discretionary cost orders that dismissed its motion for costs against the impecunious respondent and her former lawyer personally.

The motions judge had found the respondent was unable to pay and that the lawyer, who acted pro bono for a limited time, did not act frivolously or vexatiously.

The Divisional Court dismissed the motion for leave, finding no error in principle and that the motions judge's decision was not plainly wrong.

The applicant sought judicial review of an Information and Privacy Commissioner order requiring the disclosure of commercial benchmarking data provided to the Treasury Board Secretariat.

The applicant argued the adjudicator misapprehended evidence and applied too high a standard of proof for the third-party records exemption under s. 17(1) of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the application, finding the adjudicator reasonably concluded the applicant failed to demonstrate a reasonable expectation of probable harm to its competitive position if the redacted information was disclosed.

The appellant appealed a motion judge's decision staying his motion to change a final family law order due to his egregious and exceptional non-compliance with prior court orders.

The Divisional Court upheld the motion judge's exercise of discretion under Rule 1(8) of the Family Law Rules, finding the appellant had willfully ignored numerous obligations, including support, tuition, life insurance, and costs.

However, the Court allowed the appeal in part to specify the exact conditions the appellant must satisfy to lift the stay and proceed with his motion to change.

The Court also confirmed that a prior $10,000 costs award was a debt under a support order not released by the appellant's bankruptcy.

The defendant employer appealed a summary judgment decision awarding the plaintiff employee damages for wrongful dismissal, mental distress, and substantial indemnity costs.

The Divisional Court upheld the wrongful dismissal damages, finding no error in the motion judge's calculation of the notice period.

However, the court set aside the $7,500 award for mental distress, finding that the employer acted in good faith and there was insufficient evidence of compensable mental distress.

The court also allowed the appeal on costs, reducing the trial costs from $35,000 to $10,000, noting the motion judge failed to properly consider proportionality and the unreasonableness of the plaintiff's bill of costs.

The appellant appealed a decision of the Health Professions Appeal and Review Board upholding the College of Nurses' refusal to annul her first unsuccessful attempt at the Canadian Registered Nurse Examination.

The appellant argued that her mental and emotional state, caused by her mother's death and medication side effects, prevented her from fully appreciating her inability to write the exam.

The Divisional Court dismissed the appeal, finding the Board's conclusion that the appellant could and should have assessed her circumstances before the examination was reasonable.

The appellants, minority shareholders in a family lumber business, appealed the dismissal of their application for an oppression remedy and winding-up order under the Business Corporations Act.

They argued the motion judge erred by failing to address the winding-up provisions, taking judicial notice of political news, and finding parts of their claim statute-barred.

The Divisional Court dismissed the appeal, finding that the criteria for winding-up were the same as for oppression, which the judge correctly found was not established.

The court also upheld the judge's findings that the appellant had no reasonable expectation of becoming an officer or receiving dividends given the company's conservative management and industry challenges.

The appellant father appealed a summary judgment order granting sole custody of the children to the mother with supervised access for the father under the Child and Family Services Act.

The father argued the motion judge erred by refusing an adjournment, proceeding by summary judgment, and applying child protection principles instead of family law principles.

The Divisional Court dismissed the appeal, finding no errors of law or fact.

The court noted the father had been given an opportunity to present his case and that the evidence supported the finding that the children were in need of protection due to the father's mental health and parental conflict.