Kristen Allen

The Crown appealed a Superior Court decision striking down the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which eliminated TTC employees' right to strike and replaced it with binding interest arbitration.

The Court of Appeal dismissed the appeal, holding that the complete ban on strikes violates the employees' right to meaningful collective bargaining under s. 2(d) of the Charter.

The Court further found that the Crown failed to justify the infringement under s. 1, as it did not demonstrate that the complete ban was minimally impairing or that its salutary effects outweighed the deleterious effects on the workers' Charter rights.

Two teachers' unions sought judicial review of Ontario Labour Relations Board decisions regarding collective bargaining with the Crown.

The OLRB had dismissed OSSTF's claim of bad faith bargaining, finding the Crown did not misrepresent its position on grid movement grievances.

The OLRB upheld ETFO's claim of bad faith bargaining but declined to award monetary damages, instead ordering a declaration and notice to members.

The Divisional Court applied the reasonableness standard and dismissed both applications, finding the OLRB's factual findings, inferences, and remedial choices were logical, transparent, and entitled to deference given its labour relations expertise.

The Court of Appeal for Ontario issued supplementary reasons regarding the remedy and costs following its prior decision (2023 ONCA 139) which declared s. 37.10.1(2) of the Election Finances Act unconstitutional.

The appellants sought to invalidate additional provisions, including the definition of "political advertising" s. 37.0.1, s. 37.10.1(3)-(3.1), and s. 37.10.2.

The court declined this request, finding these provisions were not inextricably linked to the previously invalidated section and were not independently shown to infringe section 3 of the Canadian Charter of Rights and Freedoms.

The court also noted that the election period spending limits (s. 37.10.1(1)) were not challenged and remain in force.

No disposition was made as to costs, as the parties had reached an agreement.

The Applicants challenged the Toronto Transit Commission Labour Disputes Resolution Act, 2011, arguing it infringed their freedom of association under s. 2(d) of the Charter by prohibiting the right to strike and replacing it with compulsory binding interest arbitration.

The court found the Act substantially interfered with meaningful collective bargaining and was not justified under s. 1 of the Charter, as the TTC was not an "essential service" in the constitutional sense, and the economic and equity concerns did not justify the complete prohibition of the right to strike.

The Act was declared unconstitutional and of no force and effect.

This appeal concerned the constitutional validity of Ontario's third-party election spending limits, specifically the extension of the pre-writ restricted period from 6 to 12 months without increasing the spending cap.

The appellants argued this infringed the informational component of the right to vote under s. 3 of the Charter, which is not subject to the notwithstanding clause (s. 33).

The Court of Appeal found that while s. 33 was properly invoked, the extended spending restrictions were not "carefully tailored" and did not permit a "modest informational campaign" thereby infringing the s. 3 right to meaningful participation in the electoral process.

The infringement was not justified under s. 1 of the Charter.

The court declared the impugned provision invalid and suspended the declaration for 12 months.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The applicants challenged the constitutionality of amendments to the Election Finances Act that imposed a 12-month pre-writ restricted spending period for third-party political advertising.

The government had previously enacted similar amendments that were struck down under section 2(b) of the Charter, but re-enacted them using the section 33 notwithstanding clause.

The applicants argued the amendments violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.

The court dismissed the application, finding that the spending limits were carefully tailored to the egalitarian model of elections and did not infringe the right to meaningful participation in the electoral process.

The applicant unions sought interim injunctions to restrain the respondent employers from enforcing mandatory COVID-19 vaccination policies pending the outcome of labour arbitrations.

The court dismissed the Sinai application on the basis that the labour arbitration process provided an adequate alternative remedy, precluding the exercise of the court's residual jurisdiction.

The court dismissed the TTC application on the merits of the injunction test, finding that the loss of employment or income did not constitute irreparable harm and that the balance of convenience strongly favoured the employer's obligation to protect public health and workplace safety.

This was a costs endorsement following a successful constitutional application challenging provisions of election finance legislation under s. 2(b) of the Charter.

The court held that partial indemnity remained the appropriate scale because the respondent government's conduct was professional and did not justify substantial or full indemnity costs.

In fixing a fair overall award, the court emphasized that four applicant groups had advanced identical legal challenges in a consolidated proceeding, and that economies of scale had to be reflected in the result.

The court reduced the aggregate request from approximately $690,000 to $500,000 and apportioned that amount among the successful applicants.

No costs were awarded for or against the Chief Electoral Officer or the intervenor.

The applicants challenged the constitutionality of amendments to the Election Finances Act that extended the pre-election restricted spending period for third-party political advertising from six to twelve months.

The court found that the 12-month restriction infringed freedom of expression under section 2(b) of the Charter.

Applying the Oakes test, the court held that while the objective of fostering fair elections was pressing and substantial, the 12-month period failed the minimal impairment test because the government's own experts indicated a six-month period was effective.

The impugned provisions were declared of no force or effect.

The applicants in a constitutional application requested leave to file factums exceeding the 30-page limit prescribed by the Practice Direction.

The Attorney General opposed the request.

The court denied the request, emphasizing that the 30-page limit is a serious policy intended to focus counsel on the issues, and that leave is exceptional and granted sparingly.

The court noted that since there was still a week before the factums were due, counsel had sufficient time to produce shorter, more focused versions.

The plaintiffs sought to schedule an urgent motion for an interlocutory injunction to compel the closure of schools to in-person learning in York Region due to COVID-19, prior to commencing a formal proceeding.

Several unions and school boards sought to intervene.

The court scheduled the injunction motion conditionally, requiring the plaintiffs to formally commence an action or application first.

The court declined to schedule the intervention motions on an urgent basis, finding it would be unfair to the responding parties given the tight timeline.

The appellant, Barry Weisleder, appealed a summary judgment dismissing his defamation action against the respondent union.

The motion judge had found the allegedly defamatory speech was protected by qualified privilege and that malice was not established.

The Court of Appeal found no error in the motion judge's decision, upholding the finding of qualified privilege and the absence of malice, noting that the ample evidentiary record allowed for a summary judgment decision on malice.

The appeal was dismissed.

The applicant sought judicial review of an interest arbitration award that imposed a non-contracting out provision for a newly created Customer Service Agent position.

The applicant argued it was denied procedural fairness because both parties had agreed in written submissions that the issue of contracting out would be left for a future arbitrator, yet the arbitrator decided the issue anyway.

The Divisional Court held that the arbitrator breached procedural fairness by deciding an issue without giving the parties notice or an opportunity to make submissions.

The application for judicial review was allowed in part, and the relevant portions of the award were set aside and remitted to the arbitrator.

The defendant union brought a motion for summary judgment to dismiss the plaintiff's defamation claim on the basis of qualified privilege.

The plaintiff, a former union local president, alleged that statements made in a pamphlet distributed at an annual general meeting were defamatory.

The court found that the statements were made on an occasion of qualified privilege, as the union executive had a duty to respond to the plaintiff's ongoing criticisms and inform members of the local's history.

The court concluded there was no genuine issue requiring a trial, as the plaintiff failed to provide evidence of express malice to defeat the privilege, and granted the summary judgment motion.

The Court dismissed an appeal challenging a workplace safety regulation and an administrative penalty imposed after a fatal forestry incident.

The majority held the regulation was within delegated authority and upheld the tribunal’s interpretation allowing an employer-owner to be penalized under the governing scheme.

Dissenting judges would have found the regulation invalid or the penalty interpretation patently unreasonable.

The applicant employer sought judicial review of two Grievance Settlement Board (GSB) decisions reinstating two Transit Safety Officers who were discharged for misconduct.

The GSB had found that the employer breached a sunset clause by considering expired disciplinary records when deciding to terminate the employees.

Relying on the Molson's case, the GSB concluded it was bound to void the discipline entirely and reinstate the employees with full compensation.

The Divisional Court granted the applications for judicial review, holding that the GSB erred by failing to consider all relevant circumstances before applying Molson's and by failing to consider its statutory discretion to substitute a penalty under s. 48(17) of the Labour Relations Act.

The decisions were quashed and remitted to the GSB.

The Toronto Transit Commission (TTC) sought judicial review to quash a decision of the Ontario Labour Relations Board (OLRB) that adjourned an appeal under the Occupational Health and Safety Act pending the outcome of a related grievance arbitration.

The Divisional Court dismissed the application, finding it premature.

The court held that the OLRB's decision was an interlocutory adjournment and did not constitute a refusal to exercise jurisdiction.

The court found no exceptional circumstances to justify judicial review of an interim administrative decision.

The appellant was convicted of first degree murder in the death of his wife at his second trial, following a hung jury at his first trial.

The appeal was allowed on the basis that the trial judge erred in law by refusing to remove trial counsel from the record when counsel sought removal on grounds of ethical concerns and breakdown of the client-solicitor relationship.

The trial judge's refusal to grant the removal application created an appearance of unfairness and constituted a miscarriage of justice, requiring a new trial.

The court also addressed several other grounds of appeal relating to the admissibility of third-party suspect evidence, demeanour evidence, police officer opinion evidence, and hearsay statements, providing guidance for the retrial.

The applicants' motion for leave to appeal an order denying an interlocutory injunction was previously dismissed on jurisdictional grounds.

The respondent sought costs on a substantial indemnity scale, arguing the applicants unnecessarily ran up costs by pursuing the motion despite being warned the appeal route was to the Court of Appeal.

The court declined to award substantial indemnity costs, finding the jurisdictional issue was not straightforward.

Costs were fixed at $20,000 on a partial indemnity basis, reflecting the complexity of the jurisdictional issue and the need for the respondent to address the merits of the leave motion.