Michael D. Wright

Former union members brought a civil action seeking damages for wrongful dismissal and declarations that their expulsion from union membership was invalid and contrary to the union’s constitution and principles of natural justice.

The international union moved under Rule 21 of the Rules of Civil Procedure to bar portions of the claim on the basis that the plaintiffs failed to exhaust internal union appeal mechanisms and, alternatively, that a forum selection clause required the dispute to be litigated in the Federal District Court for the District of Columbia.

The court held it was not plain and obvious that the plaintiffs were precluded from pursuing the claims without first exhausting internal remedies because the evidentiary record was insufficient to determine whether those remedies were unreasonable, impracticable, or illusory.

The court also held that a forum selection clause does not deprive Ontario courts of jurisdiction simpliciter and that jurisdiction and forum non conveniens issues had not been properly argued.

The motion was dismissed.

Following certification of a securities class action, the court determined the appropriate costs award arising from the leave and certification motions.

The moving parties sought more than $1.18 million in fees and disbursements on a partial indemnity basis.

The court emphasized the need for transparency, proportionality, and historical benchmarking when assessing certification-motion costs under Rule 57.01(1).

After adjusting excessive hourly rates and disbursements, and considering historical averages for comparable certification motions, the court fixed costs at $467,234 payable forthwith, with an additional $100,000 in disbursements payable in the cause.

The plaintiffs sought leave under s. 138.8 of the Securities Act and certification under the Class Proceedings Act to bring an action against Manulife Financial Corporation and its former executives.

The plaintiffs alleged that the defendants misrepresented the adequacy of Manulife's risk management practices and failed to disclose its massive unhedged exposure to equity market risk prior to the 2008 financial crisis.

The court granted leave, finding a reasonable possibility of success at trial, and certified the action as a class proceeding, certifying seven common issues.

The plaintiffs in a proposed class action for secondary market misrepresentation sought leave to appeal a decision quashing their summonses to two Manulife employees and refusing to compel the defendants to file affidavits on the upcoming leave motion under s. 138.8 of the Securities Act.

The Divisional Court dismissed the application for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision, which followed established jurisprudence that defendants are not required to deliver affidavits or be subjected to cross-examination if they do not intend to lead evidence on the leave motion.

Employees brought a motion for default judgment in wrongful dismissal actions after the defendants’ statements of defence were struck and the defendants were noted in default.

The plaintiffs alleged the defendants operated as common employers and were jointly and severally liable following the discontinuation of the business and termination of employees without adequate notice or severance.

Affidavit evidence detailed employment history, mitigation efforts, and damages.

Although the court rejected the proposed formula of one month’s pay per year of service and questioned the appropriateness of a fixed 24‑month cap, it held that the damages claimed were reasonable in the circumstances.

Default judgment was granted against two corporate defendants for the amounts claimed with pre‑judgment interest and costs.

The appellant, Hydro One Inc., appealed a Divisional Court decision upholding a Financial Services Tribunal order for a partial wind-up of its pension plan under s. 69(1)(d) of the Pension Benefits Act.

Following a corporate merger, the employment of 73 Management Compensation Plan (MCP) employees was terminated.

The Tribunal used a 'subset analysis' to determine that a 'significant number' of plan members had been terminated, comparing the number of terminated MCP employees to the total number of active MCP plan members.

The Court of Appeal dismissed the appeal, holding that s. 69(1)(d) permits a subset analysis in appropriate circumstances and that the Tribunal's application of this analysis was reasonable given that the merger intentionally targeted senior employees nearing retirement.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission to not deal with her complaint against the University of Windsor.

The applicant alleged that the university's policy of keeping her failed first-year marks on her transcript was discriminatory.

The Commission dismissed the complaint because it was filed beyond the six-month limitation period and the delay was not incurred in good faith.

The Divisional Court dismissed the application, finding the Commission's decision reasonable and holding that the ongoing presence of the marks on the transcript constituted continuing effects of a past act, not a continuing contravention of the Code.

The plaintiff attended a mandatory training program to become a licensed sales representative for the defendant.

After completing the program, she signed a contract containing an arbitration clause.

She later brought a proposed class action claiming the defendant failed to pay minimum wage during the training period under the Employment Standards Act.

The defendant moved to stay the action under s. 7(1) of the Arbitration Act, 1991.

The Court of Appeal upheld the motion judge's dismissal of the stay, finding that the arbitration clause applied only to disputes arising from the relationship created by the contract, not the pre-contractual training relationship.

The Ontario College of Teachers brought disciplinary proceedings against a member for professional misconduct.

The member admitted to making disparaging and homophobic comments to staff, students, and parents about a newly hired teacher whose photograph appeared in a newspaper covering the Gay Pride Parade.

The member's conduct contributed to a hostile environment that ultimately caused the new teacher to leave the school.

The Discipline Committee accepted a joint submission on penalty, finding the member guilty of professional misconduct.

The Committee ordered a reprimand, a four-month suspension of the member's teaching certificate, and the successful completion of a course on homophobia prior to returning to teaching.

On a motion to quash an appeal, the moving party argued that a refusal to stay a class proceeding under the Arbitration Act, 1991 was unappealable under s. 7(6) and, in any event, interlocutory.

The court held that where the motions judge determined the arbitration agreement did not govern the dispute, the matter fell outside s. 7 and the statutory appeal bar did not apply.

The court further held that an order refusing a stay pending arbitration was final because it conclusively determined the forum and deprived the responding party of the substantive right to resolve the dispute by negotiation and arbitration.

The motion to quash was dismissed with costs.

The applicants, employees in the Quality Assurance Test Lab, alleged that their union breached its duty of fair representation under section 74 of the Labour Relations Act by withdrawing their classification grievance on the day of the scheduled arbitration.

The union had settled the grievance by securing an upgrade for another group of employees (MQS) while withdrawing the QA employees' claim, based on union counsel's opinion that the QA grievance lacked merit.

The Board found that the union's decision was not arbitrary, discriminatory, or in bad faith, as it was based on a thorough review of the facts and a legal opinion.

The application was dismissed.

The applicant alleged that the union breached its duties of fair representation and fair referral under sections 74 and 75 of the Labour Relations Act, 1995.

The union had entered into a letter of understanding with contractors allowing a 50/50 system for selecting workers from the out-of-work list.

The applicant argued this system was inherently unfair and improperly approved.

The Board found no evidence of bad faith, discrimination, or arbitrary conduct by the union, noting the membership had subsequently ratified the arrangement.

The application was dismissed.

The applicant employer, Progistix, sought a cease and desist order against its employees and their union, the CEP, alleging an unlawful strike.

The employees had delayed crossing a picket line set up by striking Bell Canada employees (also represented by the CEP) at their shared premises.

The Board found that the concerted delay in crossing the picket line constituted an unlawful strike under the Labour Relations Act, and that the union and its officials had unlawfully authorized and encouraged this action.

The Board issued a cease and desist order against the employees and the union, but declined to restrict the picketing itself, finding it was in connection with a lawful strike against Bell Canada.

In an application for certification, the union and employer agreed on a bargaining unit description that excluded 'office and clerical staff'.

The sole remaining issue was whether receptionists fell within this exclusion.

The Board found that while receptionists shared some community of interest with bargaining unit employees, their duties were primarily administrative and clerical in nature, involving the collection of information that flowed to the accounting staff.

Consequently, the Board concluded that the receptionists fell within the office and clerical exclusion and were excluded from the bargaining unit.

A final certificate was issued.

The applicants filed a complaint alleging that the responding parties breached section 79 of the Labour Relations Act, 1995 by failing to conduct an employee ratification vote for a memorandum of settlement in the construction industry.

The Ontario Labour Relations Board dismissed the complaint, finding that section 44 of the Act explicitly exempts the construction industry from mandatory employee ratification votes.

The Board held that a trade union in the construction industry is free to choose a ratification process that does not include a vote of employees, such as a vote of accredited delegates.

The employer, Algoma University College, filed a jurisdictional dispute complaint regarding the assignment of library reference desk duties and library tours.

The work had been assigned to members of both the Staff Association and the Faculty Association.

The Board found that the work was normally performed by members of both associations and that there was a clear overlap in jurisdiction.

Considering past practice, area practice, and factors of economy and efficiency, the Board confirmed the employer's assignment of the disputed work to members of both associations.

The applicants, employees of a daycare centre, sought interim reinstatement under section 92.1 of the Labour Relations Act after being terminated shortly after presenting collective demands to their employer.

The employer argued the Act did not protect them as they were not formally represented by a trade union.

The Board found an arguable case that the employees' rudimentary efforts to organize for collective bargaining were protected under the Act.

Concluding that the balance of harm favoured the applicants, the Board ordered their interim reinstatement pending the disposition of the main unfair labour practice complaint.

The union applied to the Ontario Labour Relations Board alleging that the employer breached the Labour Relations Act by proposing a final offer with a duration clause of less than one year from the date of the final offer vote.

The union sought an extension of the duration clause to one year from the vote date.

The Board dismissed the application, finding that the union failed to argue a breach of the duty to bargain in good faith under section 15, and that section 53(1) does not apply to a final offer until it is signed by the union and becomes a collective agreement.