Michael D. Wright

The Court of Appeal for Ontario dismissed Mario Oliveira Jr.'s application to review a motion judge's order refusing to extend the time to perfect his appeal.

The court found that while Mr. Oliveira had a genuine intention to perfect his appeal and was delayed by inaccurate information from court staff, the appeal itself was so devoid of merit that it was not in the interests of justice to grant an extension.

The court agreed with the motion judge that the underlying claim was abusive and vexatious, and rejected the argument that the motion judge failed to account for Mr. Oliveira's self-represented status.

Costs of $1,500 were awarded against Mr. Oliveira Jr.

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

The appellant, Mario Oliveira, appealed two lower court decisions: the dismissal of his wrongful dismissal action due to a breach of the deemed undertaking rule, and a finding of contempt for non-compliance with injunctive orders concerning a confidential union member list.

The Court of Appeal upheld the dismissal of the wrongful dismissal action and the contempt finding.

However, it set aside the 89-day intermittent jail sentence for contempt, replacing it with a 14-day conditional sentence (house arrest), and reduced the contempt costs from $75,000 to $50,000.

The plaintiffs in a certified class action against Uber sought leave to amend their statement of claim and add a new common issue challenging the validity of Uber's amended arbitration clause and class action waiver.

The court dismissed the motion, finding it to be an abuse of process because the plaintiffs were attempting to re-litigate the validity of the arbitration clause for the fourth time.

Although the court found the newly pleaded cause of action was not statute-barred and satisfied the cause of action criterion, it held that the proposed common issue failed the common issues, preferable procedure, and representative plaintiff criteria because it presupposed an employment relationship that had not yet been determined at the common issues trial.

The applicant brought a motion for an adjournment.

The Divisional Court granted the adjournment request and imposed a timetable agreed upon by the parties.

Due to the inordinate delay in the case and the reasons for it, the court declined to award costs to any party.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

At a case management conference in a certified class proceeding against Uber, the court considered whether to schedule the plaintiffs' proposed motions to amend their statement of claim and certify an additional common issue regarding an arbitration and class action waiver clause.

The defendants had already brought a motion to amend the class action notices.

Pursuant to section 12 of the Class Proceedings Act, 1992, the court exercised its discretion to allow the plaintiffs' motions to be scheduled and heard together with the defendants' motion, and set a timetable for the delivery of materials and the hearing.

The moving party brought a motion for leave to appeal an earlier order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The parties disputed the wording of a Certification Order in a class action regarding whether Uber drivers are employees.

The defendants requested the addition of the phrase 'to be calculated and assessed on an individual basis' to the paragraph describing the relief sought.

The court granted the request, finding that the phrase provided true and helpful information to the putative class members regarding the potential need for individual issues trials.

The Ontario Superior Court of Justice addressed disputes regarding the Notice of Certification and Notice Plan in a certified class proceeding against Uber.

The plaintiffs, representing drivers and delivery people seeking employee classification, proposed a notice plan.

Uber responded with alterations, including broader newspaper publication and inclusion of its defence commentary.

The court largely sided with Uber, approving a more robust, province-wide notice plan sensitive to language and diversity, and requiring the inclusion of Uber's legal position in the notices.

The court also apportioned the costs of newspaper notices 33% to the Plaintiffs and 67% to Uber.

This decision addresses an omnibus motion and cross-motion within a certified class proceeding concerning the employment status of Uber drivers and delivery people.

The court granted Uber's request to certify an additional common issue, which clarifies the possible classifications of the relationship between Uber and class members (customer, independent contractor, or employee).

The court dismissed the plaintiffs' request to certify a common issue regarding the validity of the Class Action Waiver, finding that no cause of action had been pleaded to support such a claim.

The enforceability of the Class Action Waiver will not be determined at the common issues trial but may be addressed at individual issues trials.

The appellant, Mario Oliveira, brought a motion to review a chambers judge's order that refused to extend time to perfect his appeal of a contempt order and other related orders.

The Court of Appeal found that the chambers judge erred in principle by denying the extension primarily on the basis of perceived lack of merit, especially given the absence of written reasons for the contempt order.

The panel granted the extension of time for the appellant to perfect his appeal related to the contempt order, the subsequent sentencing decision, and to seek leave to appeal the costs order, while upholding the sealing order for a document filed in violation of the deemed undertaking rule.

The moving party sought leave to appeal an order dated December 23, 2020.

The Divisional Court dismissed the motion for leave to appeal in a brief endorsement and awarded costs to the respondents in the fixed amount of $5,000.

The plaintiff brought a motion to certify a class action against Uber on behalf of drivers and delivery people, alleging they are employees misclassified as independent contractors and are entitled to benefits under the Employment Standards Act, 2000.

Uber opposed certification, arguing the relationship is idiosyncratic and relying on a new Arbitration and Class Action Waiver Clause.

The court certified the action for breach of contract and ESA claims, finding some basis in fact for common issues regarding employment status based on the standard form contracts and app functionality.

The court declined to strike down the arbitration clause at this stage, ordering that class members be given notice of its potential legal significance.

The plaintiff in a proposed class action against Uber sought court approval of a third-party litigation funding agreement with Augusta.

The proposed class action alleges that Uber breached employment contracts and the Employment Standards Act, 2000.

The court reviewed the four-factor test for approving third-party funding agreements, noting that the agreement was necessary for access to justice, fair and reasonable, and did not overcompensate the funder.

The court approved the litigation funding agreement.

The applicant, a medical student, sought judicial review of a decision by the university's Academic Appeals Committee upholding findings of professionalism lapses.

The applicant argued that the initial process before the Board of Examiners was procedurally unfair due to insufficient notice and undisclosed allegations.

The Divisional Court dismissed the application, finding that while the initial process was flawed, the subsequent appeals before the Faculty of Medicine Appeals Committee and the Academic Appeals Committee were conducted as de novo hearings that cured any procedural defects.

The Applicants, licensed cannabis producers, sought court approval and sanction of their second amended and restated plan of compromise and arrangement under the CCAA.

The Plan aimed to implement a settlement framework for multiple securities class actions arising from the Applicants' illegal cannabis growing operations.

While the court found the Allocation and Distribution Scheme reasonable and rejected KPMG's complaint about being excluded from voting, it refused to sanction the Plan.

The court held that the Plan's provisions regarding the assignment of claims against KPMG and the Judgment Reduction Provision in the Bar Order were not fair and reasonable to the non-settling defendants, as they failed to limit the non-settling defendants' liability to several liability.

The defendant was found in civil contempt for failing to abide by court orders and subsequently destroying devices subject to a court-ordered forensic inspection.

The plaintiffs sought a stay of a related action, but the court declined to order a stay at this stage.

Applying the factors for civil contempt sentencing, the court determined that a period of incarceration was appropriate but deferred the sentence due to Covid-19 concerns, allowing the defendant 30 days to provide submissions.

The defendant was previously found in contempt of court for failing to comply with orders requiring the return of confidential union information and the forensic inspection of his electronic devices.

Instead of purging his contempt, the defendant deliberately destroyed the devices.

The plaintiffs sought to stay the defendant's separate action in Brampton as a penalty.

The court declined to stay the action at this time and deferred sentencing to consider house arrest, requiring the defendant to provide details of his living situation.

Costs submissions were also ordered.

The applicant sought judicial review of a university academic appeal committee decision.

In support of his application, he filed an affidavit containing evidence of events that occurred after the original board decision.

The university brought a motion to strike those portions of the affidavit.

The Divisional Court granted the motion, applying the Keeprite principle that judicial review is based on the record before the decision-maker, and finding that the applicant had previously consented to excluding this evidence during the internal appeal processes.