Michael D. Wright

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.

The plaintiff, a 59-year-old senior executive with 14 years of service, was terminated without cause.

On a motion for summary judgment, the court determined the reasonable notice period to be 18 months.

The court held that the plaintiff was entitled to damages for his lost Sales Target Incentives (STI) during the notice period, as the policy did not unambiguously exclude it.

However, the court found that the Long Term Incentives (LTI) agreement unambiguously excluded recovery for unvested Restricted Stock Units.

The court ordered a trust and accounting mechanism for the remainder of the notice period to account for any mitigation earnings.

This case conference addressed the scheduling of the plaintiff's summary judgment motion in a wrongful dismissal action.

The defendant preferred to proceed with discoveries and trial, arguing the motion was premature and might involve credibility issues.

The court, however, decided to schedule the two-hour summary judgment motion, noting that wrongful dismissal cases often have contained issues and that a motions judge retains discretion to order a trial or mini-trial if credibility issues require further exploration.

The appellants sought to enforce a mandatory arbitration clause in their standard form services agreement, requiring the respondent to resolve any dispute through mediation and then arbitration in the Netherlands under ICC Rules at an up-front cost of approximately US$14,500.

The majority held that the arbitration clause was unconscionable, as there was a clear inequality of bargaining power between a large multinational corporation and a low-income delivery driver, and the resulting arbitration agreement was improvident in that the prohibitive fees effectively denied the respondent any meaningful access to dispute resolution.

The Court also clarified the framework for determining when a court, rather than an arbitrator, should resolve challenges to arbitral jurisdiction, holding that a court may depart from the general rule of arbitral referral where there is a real prospect that the challenge would never be resolved if referred to arbitration.

A concurring judgment by Brown J. agreed with dismissal but preferred to ground the result in public policy rather than unconscionability, finding that the arbitration clause imposed undue hardship by barring access to a legally determined dispute resolution.

Côté J. dissented, reasoning that the arbitration clause was valid, that the Court of Appeal erred in applying the Arbitration Act rather than the International Commercial Arbitration Act, and that the appropriate remedy, if any, was a conditional stay requiring Uber to advance the initiation fees.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his complaint that his union breached its duty of fair representation by withdrawing his grievance regarding a voluntary severance program.

The Divisional Court found that the Board reasonably applied the test for the duty of fair representation, did not misapprehend the evidence, provided adequate reasons, and did not breach the principles of natural justice.

The application for judicial review was dismissed.

The appellant brought a proposed class action on behalf of Uber food delivery drivers, claiming they were employees entitled to protections under the Employment Standards Act, 2000 (ESA).

The service agreement required arbitration in the Netherlands under ICC Rules.

The motion judge granted a stay in favour of arbitration.

The Court of Appeal allowed the appeal, finding the arbitration clause invalid on two independent grounds: (1) it constituted illegal contracting out of an employment standard (the complaint investigation process under s. 96 of the ESA), contrary to s. 5(1) of the ESA; and (2) it was unconscionable at common law due to prohibitive costs (US$14,500 upfront), significant inequality of bargaining power, and the absence of independent legal advice.

The court held that validity of arbitration agreements is a matter for the court to determine under s. 7(2) of the Arbitration Act, 1991, not the arbitrator.

The defendants brought a motion to strike several paragraphs from the plaintiff's statement of claim under Rule 25.11, arguing they were irrelevant and scandalous.

The plaintiff's claim was based on the common employer doctrine, alleging the defendants were his employers despite his contract being with an insolvent related corporation.

The court struck paragraphs solely related to the plaintiff's employment qualifications and performance, finding them irrelevant to the common employer determination.

However, the court allowed most other impugned paragraphs to stand, including those detailing corporate structure, operations, and post-termination events leading to the original employer's insolvency, deeming them relevant to the common employer analysis and the potential for unfairness to the employee.

The plaintiff commenced an action and brought a motion for an interim injunction to prevent the defendant from imposing a trusteeship on a local union.

The plaintiff subsequently abandoned the motion and the litigation after the trusteeship was imposed and she joined a rival union.

The defendant sought costs of the abandoned motion pursuant to Rule 37.09(3).

The court found no good reason to depart from the general rule that a responding party is entitled to costs of an abandoned motion, and awarded the defendant $30,000 in costs on a partial indemnity scale.

The appellants, representing a local union, appealed a trial judgment that dismissed their claims for breach of fiduciary duty and breach of confidence against former union employees who left to form a competing union.

The respondents cross-appealed the trial judge's finding that they breached their duty of loyalty by soliciting union stewards before resigning, and the damages awarded for that breach.

The Divisional Court upheld the trial judge's findings on liability, concluding that the former business manager was not a fiduciary and that the employees breached their duty of loyalty by competing while still employed.

However, the court allowed the cross-appeal on damages, reducing the awards to nominal damages of $500 per employee because the union failed to prove the breach caused actual financial loss.

The appellants appealed the motion judge's order striking their statement of claim without leave to amend on grounds of being time-barred and constituting an abuse of process.

The Court of Appeal found that while most of the claims were properly struck as statute-barred under the Limitations Act, 2002, the motion judge erred by not separately considering paragraph 39 of the statement of claim, which alleged a new claim arising from the dissolution of a corporate defendant in 2013.

The court allowed the appeal in part, setting aside the order with respect to paragraph 39 and remitting the matter for further consideration.

The defendants, the Legislative Assembly of Ontario and the Office of the Ombudsman of Ontario, sought costs on a partial indemnity scale after successfully dismissing the plaintiff's action against the Assembly for lack of jurisdiction and striking out the plaintiff's statement of claim against the Ombudsman for disclosing no reasonable cause of action.

The court awarded the Legislative Assembly $49,983.67 and the Ombudsman $18,551.81, finding their initial claims for costs to be excessive but acknowledging the legal complexity and importance of the motions.

The plaintiff's financial circumstances were considered but not determinative in the costs award.

The Superior Court of Justice approved a $69 million settlement in a securities class action against Manulife Financial Corporation, along with the plan of allocation, honoraria for representative plaintiffs, class counsel's contingency fees, and a preliminary commission for a third-party litigation funder.

The court found the late-stage settlement to be fair and reasonable, considering the extensive litigation and identified risks, including compelling evidence of market understanding of Manulife's hedging practices, a reasonable investigation defense, arguments against corrective disclosure, the impact of the economic crisis, and the dismissal of a parallel U.S. action.

The plaintiff, a former Ombudsman of Ontario, commenced an action against the Office of the Ombudsman and the Legislative Assembly of Ontario, seeking declaratory relief and damages for wrongful dismissal and negligent misrepresentation.

The Office of the Ombudsman moved to strike the statement of claim, arguing it disclosed no reasonable cause of action as the Office is a statutory position, not a legal entity capable of an employment contract with the Ombudsman.

The Legislative Assembly moved to dismiss or stay the action for lack of jurisdiction, asserting parliamentary privilege over the appointment and management of parliamentary officers.

The court granted both motions, finding that the Office of the Ombudsman is not a separate legal entity capable of employing the Ombudsman, and that the Assembly's decisions regarding the appointment and non-reappointment of a parliamentary officer are protected by parliamentary privilege, thus falling outside the court's jurisdiction.

The plaintiffs, having achieved partial success against individual "HOPE defendants" for breach of loyalty but failing entirely against "Carpenter defendants" for interference with economic interests, sought substantial costs.

The defendants, having largely succeeded, proposed the plaintiffs pay a portion of their costs or that each party bear their own.

The court, emphasizing proportionality and the modest damages awarded against the HOPE defendants, ordered that each party bear their own costs, finding this outcome to be fair and proportionate given the complex "turf warfare" between unions and the disparate success against different defendant groups.

The plaintiff union sued former employees and officials associated with a rival union following the creation of a new local that successfully organized workers previously represented by the plaintiff.

The plaintiffs alleged breaches of fiduciary duty, breach of employee duties of loyalty and confidentiality, and unlawful interference with contractual relations.

The court held the principal departing employee was not a fiduciary and that most information used in the organizing campaign was either public or not proven to have been misused.

However, several former employees breached basic duties of loyalty by preparing and initiating a competing organizing campaign before resigning and by failing to give reasonable notice of departure.

The court rejected claims of tortious interference against the rival union and its representatives.

Limited damages were awarded against the former employees for breach of employee duties.

The appellant employer appealed a trial judgment finding it wrongfully dismissed the respondent employee and discriminated against her based on family status.

Upon returning from maternity leave, the respondent was demoted, had her hours reduced, and faced reprisals when she objected, culminating in her termination.

The Court of Appeal upheld the trial judge's findings that there was no just cause for dismissal, the 12-month notice period was reasonable, and the $20,000 human rights damages award for family status discrimination was justified.

The appeal was dismissed with costs.

The appellant teachers were wrongfully dismissed by the respondent private school.

The motion judge reduced their reasonable notice period from twelve months to six months due to the school's financial difficulties and a presumption about the availability of alternative teaching positions.

The Court of Appeal allowed the appeal, holding that an employer's financial circumstances are not relevant to determining the reasonable notice period under the Bardal factors.

The twelve-month notice period was restored.

The applicant union sought judicial review of an arbitration award that determined two policy grievances regarding the employer's Nuclear Resourcing Policy.

The arbitrator had found that the employer's reassignment of employees to available work within their job classification did not violate the job posting provisions of the collective agreement.

The Divisional Court applied the reasonableness standard of review and held that the arbitrator's interpretation fell within a range of reasonable outcomes, as it followed established arbitral jurisprudence and considered the collective agreement as a whole.

The application for judicial review was dismissed.

Following dismissal of a Rule 21 motion brought by one defendant seeking to bar claims relating to expulsion from union membership, the court addressed costs.

The plaintiffs had successfully resisted the motion, which sought to preclude the action for failure to exhaust internal union appeals or for lack of jurisdiction.

Applying the discretionary costs framework under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality, complexity, and the results achieved.

Relying on appellate guidance regarding fair and reasonable costs awards, the court held that the successful plaintiffs were entitled to costs.

Partial indemnity costs of $4,990 were ordered payable by the moving defendant only.

The defendants sought leave to appeal a decision granting the plaintiffs leave to pursue claims under Part XXIII.1 of the Securities Act and certifying the action as a class proceeding.

The plaintiffs alleged the corporate defendant misrepresented its equity market risk by failing to disclose its decision to abandon hedging and reinsurance of guaranteed products.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's conclusions that the plaintiffs had a reasonable possibility of success at trial and that the common law misrepresentation claims were suitable for certification alongside the statutory claims.