Kevin Dennis MacNeill

The defendant employer brought a motion to strike the plaintiff's constructive dismissal claim with leave to amend to provide full particulars, and sought a protective order over a diversity survey and an ombudsperson report.

The court dismissed the motion for particulars, finding the defendant had already filed a statement of defence and the existing pleadings provided sufficient detail to know the case to meet.

The court also denied the protective order, ruling it was premature and that the documents were relevant to the plaintiff's allegations of systemic gender discrimination and a toxic work environment.

The defendant employer brought a motion to dismiss or permanently stay an employment action on grounds of lack of jurisdiction or forum non conveniens.

The plaintiff, a former employee, commenced an action in Ontario alleging breach of contract, intentional infliction of mental suffering, and discriminatory treatment arising from her dismissal without notice.

The defendant argued that the action should be stayed in favor of Manitoba courts, where the plaintiff was employed and where the alleged misconduct occurred.

The court found that a forum selection clause in the plaintiff's original employment contract with Atomic Energy Canada Limited (AECL) designated Ontario as the exclusive jurisdiction and remained enforceable against the defendant, a wholly-owned subsidiary of AECL that assumed the plaintiff's employment.

The court also found that Ontario had jurisdiction simpliciter based on multiple presumptive connecting factors.

The motion was dismissed.

The applicant Health Unit sought judicial review of a labour arbitration award that found it breached the collective agreement by offering straight-time payouts for accumulated comp time during the COVID-19 pandemic.

The Health Unit argued the breach was authorized by the Emergency Management and Civil Protection Act and O. Reg. 116/20.

The Divisional Court determined the standard of review for interpreting the emergency order was correctness.

Although the court found the arbitration board erred in concluding the Act did not permit orders with financial consequences, it upheld the board's factual finding that the specific measure taken was not 'reasonably necessary' to respond to the outbreak.

The application for judicial review was dismissed.

The defendants brought a motion under Rule 56.01(1)(a) of the Rules of Civil Procedure seeking an order requiring the plaintiff, a resident of the United States, to post security for costs in a wrongful dismissal action.

The court considered the plaintiff’s financial circumstances, the stage of the litigation, and the apparent merits of the claim.

Evidence indicated the plaintiff had limited financial resources and that his financial situation may have been affected by the defendants’ conduct in relocating him to Canada for employment.

The court found the claim possessed some merit and that requiring substantial security could effectively terminate the litigation and undermine access to justice.

In the circumstances, the court declined to order security for costs.

The appellant employer appealed a conviction under s. 25(1)(c) of the Occupational Health and Safety Act arising from a workplace accident where a worker fell more than three metres from a sawmill catwalk while clearing a conveyor jam without fall arrest protection.

The trial court had acquitted the employer on a guardrail-related charge but convicted on a fall-arrest charge.

On appeal, the employer argued the trial judge made inconsistent findings on foreseeability and lacked evidence supporting the conclusion that workers would cross the guardrail to access the conveyor.

The Superior Court held that the trial judge’s reasoning distinguished between the guardrail and fall-arrest charges and properly found that accessing the conveyor to clear jam-ups was foreseeable.

The court concluded that the employer failed to establish due diligence because it did not implement reasonable safety precautions or training requiring fall arrest protection.

The conviction was upheld.

The Ontario Nurses Association brought a motion to review and set aside a decision of Molloy J., which struck out an affidavit containing correspondence between an arbitration chair and the employer's nominee.

The underlying judicial review application by the Board of Health alleged a denial of natural justice because the arbitration board did not discuss the evidence before the chair issued a proposed decision.

The Divisional Court dismissed the motion, agreeing with Molloy J. that the correspondence was unnecessary to introduce as evidence because the facts it sought to establish were already addressed in the chair's reasons and were not disputed.

The appellant employer appealed a trial judgment finding that it wrongfully dismissed the respondent employee.

The employee had forged his supervisor's signature on a letter regarding severance pay for a subordinate.

The trial judge applied the principle of proportionality, concluding the forgery was an isolated error in judgment rather than a fundamental breach of trust justifying dismissal.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's appreciation of the evidence or application of the law.

The applicant employer sought judicial review of an arbitration award that found a deemed termination of a grievor's employment, entitling him to termination and severance pay under the Employment Standards Act.

The Divisional Court granted the application and quashed the award, finding that the arbitrator breached natural justice by deciding the case on the basis of frustration of contract—an issue not advanced by the union—without allowing the parties to address it.

The Court also found the arbitrator's decision unreasonable because he failed to determine a specific termination date and ignored evidence of a continuing employment relationship.

The appellant filed a human rights complaint alleging disability discrimination by his former employer.

The Ontario Human Rights Commission decided not to refer the complaint to a board of inquiry under s. 36 of the Human Rights Code because the employer had made an adequate settlement offer, which the appellant refused.

The Divisional Court dismissed the appellant's application for judicial review.

On appeal, the Court of Appeal held that the Commission was entitled to consider the settlement offer, which was not privileged against the Commission, and that the Commission's decision was not patently unreasonable.

The appeal was dismissed.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his discrimination complaint to a Board of Inquiry.

The Commission had declined the referral because the employer had made a reasonable settlement offer that matched what the applicant could expect at a hearing.

The Divisional Court dismissed the application, holding that the Commission was correct to consider the settlement offer in exercising its gatekeeper function under the Human Rights Code.