Brian T. Daly

The applicant, a school bus driver employed by the respondent First Nation, filed a human rights application alleging age discrimination.

The respondent requested deferral pending related federal proceedings, and the Tribunal raised the issue of whether the matter fell under federal or provincial jurisdiction.

The Tribunal declined to defer the application, noting the federal proceedings were on hold or conditional.

Applying the functional test, the Tribunal found that the respondent's provision of school bus services to provincial high schools was a provincial undertaking, not integral to any federal undertaking, and therefore fell under provincial jurisdiction.

The defendants brought a motion to sever the issue of the plaintiff's standing to bring the action, seeking to have it determined in advance of trial.

The plaintiff opposed the motion.

The court reviewed the principles governing bifurcation, noting that a litigant has a basic right to have all issues resolved in one trial and that severance should only be ordered in the clearest of cases.

The court dismissed the motion, finding that the issues were interconnected, severance would likely lead to appeals and delay, and the motion was brought late in the proceedings after significant resources had already been expended.

The appellants, representing members of a church congregation who voted to leave the Anglican Diocese of Huron due to theological differences, appealed a trial decision declaring that the diocese held the church property and a charitable foundation in trust for the static parish, not the departing members.

The Court of Appeal dismissed the appeal, affirming that 'parish' refers to a static entity that continues in perpetuity regardless of changes in membership, and that the departing members could not take the property with them.

The Court also allowed the diocese's cross-appeal on costs, finding that the costs judge erred in ordering each party to bear its own costs to promote harmony, and awarded $100,000 in costs to the diocese.

The appellant appealed the decision of the motion judge denying an order for an oppression remedy under s. 135 of the Condominium Act, 1998.

The Court of Appeal found no basis to interfere with the motion judge's decision, noting she considered the full record, the case law, and properly exercised her discretion.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a trial judgment granting injunctive relief and recognizing an ancillary right over a right-of-way that permitted vehicular turning at 'daylight corners'.

The Court of Appeal dismissed the appeal, finding the injunctive relief was appropriate given the history of obstructions, and that the original grant of the right-of-way contained no words of limitation restricting vehicular use.

By agreement, minor amendments were made to the judgment to delete references to the appellant.

The Wikwemikong Tribal Police Service brought a motion to quash an appeal filed by a First Nations Constable from a finding of discreditable conduct.

The moving party argued that the Ontario Civilian Police Commission lacked jurisdiction to hear the appeal because First Nations Constables are explicitly excluded from the definition of 'police officer' under the Police Services Act.

The Commission agreed, finding that its statutory authority to hear appeals under section 87 of the Act applies only to police officers and complainants.

The motion was granted and the appeal was quashed.

The appellants appealed a summary judgment decision, arguing there was a genuine issue for trial regarding whether the franchisor and the respondent bank had a sufficiently close connection to make the bank responsible for the franchisor's faults.

The Court of Appeal agreed with the motion judge that no such genuine issue existed.

The appeal was dismissed with costs.

The appellants appealed a trial judgment finding personal liability and interpreting a second contract as open-ended as to time.

The Court of Appeal dismissed the appeal, agreeing with the trial judge's interpretation based on the plain wording of the contract and the parties' subsequent conduct.

The appellant First Nation enacted its own labour relations code after a union was certified to represent workers at a casino located on its reserve.

The appellant argued that its code displaced the provincial Labour Relations Act based on its aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.

The Court of Appeal dismissed the appeal, finding that the appellant failed to establish an aboriginal practice, custom, or tradition that supported the right to enact a labour relations code.

The Court also held that the Crown did not breach its duty to consult and accommodate, as the appellant's claim was not sufficiently credible and the appellant had taken unilateral action.

The applicant First Nations sought judicial review to quash a Notice of Completion of an Environmental Study Report regarding the transfer of the Seaton lands by the Ontario Realty Corporation.

The applicants argued the Crown breached its constitutional and statutory duties to consult them about potential aboriginal burial sites on the lands.

The Divisional Court dismissed the application, finding no constitutional duty to consult because the applicants had surrendered their rights to the lands under the 1923 Williams Treaties.

The court also held that the statutory consultation process under the Environmental Assessment Act was procedurally fair, noting the broad nature of the assessment and the effective involvement of the Founding First Nations Circle.

Following a successful appeal that certified the action as a class proceeding, the Court of Appeal issued a costs endorsement.

The appellants were awarded costs throughout on a partial indemnity scale.

The Court fixed the costs for the Divisional Court at $60,000 and for the Court of Appeal at $42,500, payable forthwith by the respondents jointly and severally.

The costs of the initial certification motion were referred back to the motion judge.

The appellants, members of various First Nations, sought to bring a class proceeding against the federal government and church entities for harms suffered at the Mohawk Institute Residential School between 1922 and 1969.

The motion judge and Divisional Court denied certification.

The Court of Appeal allowed the appeal, finding that the criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were met, including identifiable classes, common issues such as systemic negligence and breach of fiduciary duty, and the preferability of a class action.

The employer, Great Blue Heron Gaming Company, and the Mississaugas of Scugog Island First Nation brought motions to stay a decision of the Ontario Labour Relations Board (OLRB) pending judicial review.

The OLRB had determined that the Ontario Labour Relations Act applied to the employer's casino operations on the reserve, rejecting the First Nation's argument that its own Labour Code applied pursuant to aboriginal rights under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the stay motions, finding that while there was a serious issue to be tried, the applicants failed to demonstrate irreparable harm, and the balance of convenience favoured allowing collective bargaining to proceed for the 800 employees who had voted for union representation over a year prior.

The applicant First Nation brought a motion to stay proceedings before the Ontario Labour Relations Board pending judicial review.

The applicant challenged the Board's jurisdiction to decide constitutional questions regarding the applicability of labour laws to aboriginal persons.

The Divisional Court dismissed the motion, finding that the applicant failed to establish a strong prima facie case that the Board lacked jurisdiction, as the Board has the concomitant jurisdiction to decide constitutional questions arising from its power to determine questions of law.

The Court also reiterated its practice of refusing to fragment administrative proceedings absent extraordinary circumstances.

The appellants sought to certify a class action against the federal government and others for alleged systemic physical, emotional, spiritual, and cultural abuse at a residential school operated between 1922 and 1969.

The motion judge dismissed the certification application, finding that a class proceeding was not the preferable procedure due to the highly individualized nature of the claims and the necessity of separate inquiries for each student.

The Divisional Court dismissed the appeal, upholding the motion judge's conclusion that the resolution of common issues would not significantly advance the litigation and that individual actions were the preferable alternative.

The applicant union filed a construction industry grievance and a related employer application against Maaten Construction Limited and Days Inn.

The union alleged that Maaten, acting as a construction manager for Days Inn, contravened the subcontracting provision of the provincial agreement by soliciting bids from non-union contractors.

The Board found that Maaten breached the agreement regarding the foundation work but awarded no damages as the work was ultimately performed by union members.

The Board dismissed the related employer application, finding that Maaten did not acquire the right or obligation to perform the work contracted out by Days Inn.

During a hearing for certification and an unfair labour practice complaint, a dispute arose over a question posed during cross-examination.

Union counsel asked a witness, the employer's housekeeping supervisor, whether she went on vacation with the owner of the nursing home.

Employer counsel objected on the grounds of witness privacy.

The Board ruled that the question was permissible to test the credibility of the witness's evidence, as both the owner and the supervisor had testified they went their separate ways and did not discuss the dismissed employee.

However, the Board limited the cross-examination, ruling that union counsel must accept the witness's answer and could not pursue the issue further.

The Board also denied the employer's request for an adjournment to seek judicial review, directing counsel to move to another area of cross-examination for the remainder of the day.