Michael Fenrick

The Toronto Police Association sought judicial review of an arbitrator's decision that a twice-daily reporting requirement for suspended police officers was outside the scope of arbitral review.

The arbitrator had concluded the requirement was an operational matter within the exclusive authority of the Chief of Police.

The Divisional Court found the arbitrator's decision unreasonable, holding that the reporting requirement for suspended officers is a working condition subject to the collective agreement and the supervisory powers of the Police Services Board.

The arbitrator's award was quashed and the matter remitted for a decision on the merits.

Three Mexican seasonal agricultural workers were terminated by their employer and repatriated to Mexico.

They sued for wrongful dismissal and alleged violations of their rights under ss. 7 and 15 of the Charter and the Canadian Bill of Rights, claiming they were 'privately deported' without procedural fairness.

The defendants brought a motion to strike the constitutional and Bill of Rights claims.

The court struck the Charter and Bill of Rights claims, finding that the pleadings did not contain sufficient material facts to support a deprivation of liberty or security of the person under s. 7, nor discrimination under s. 15.

The court also struck the contractual claims against Canada and F.A.R.M.S. as they were not parties to the employment contract.

The plaintiffs were granted leave to amend their Charter claims.

The applicants, family members of individuals whose deaths were investigated by the Special Investigations Unit (SIU), sought a declaration that police officers involved in SIU investigations are not entitled to legal assistance in preparing their notes.

The application judge dismissed the application on grounds of standing, justiciability, and mootness.

The Court of Appeal allowed the appeal, finding the applicants had public interest standing and the issues were justiciable and not moot.

Exercising its jurisdiction to decide the substantive issues, the Court held that the Police Services Act and the SIU Regulation do not permit police officers to have a lawyer vet or assist in the preparation of their notes, though they may obtain basic legal advice regarding their rights and duties provided it does not delay note completion.

Three parties brought motions to intervene in appeals from a judgment declaring two municipal elections invalid.

The successful candidate in one ward sought to be added as a party, a voter whose vote was discounted sought to intervene as a friend of the court, and a neighbouring municipality sought to intervene as a friend of the court.

The court granted all three motions, finding that the successful candidate had a direct interest, the voter offered a unique perspective on the voting process, and the neighbouring municipality could provide useful context on the impact of the lower court's decision on municipal elections generally.

The applicants, pharmacists facing discipline proceedings, sought judicial review of an interlocutory decision by the Discipline Committee denying their motion for extensive disclosure of third-party medical and billing records.

The Divisional Court declined to hear the application, finding it premature.

The court reiterated that judicial review of interlocutory administrative decisions is only available in exceptional circumstances or where jurisdiction is irretrievably lost.

Finding no denial of natural justice and noting that extensive disclosure had already been provided, the court quashed the application.

The applicants, facing discipline proceedings before the Ontario College of Pharmacists, brought a motion seeking production of Third Party Records in advance of a pending judicial review application.

The Discipline Committee had previously dismissed their motion for disclosure at the first stage of the O'Connor and Mills test, finding the records were not likely relevant.

The applicants argued the records were necessary for the court to properly analyze the production issue on judicial review.

The court dismissed the motion, holding that the issue on judicial review is whether the Tribunal erred in law at the first stage of the analysis, and examining the records beforehand would usurp the Tribunal's function.

The moving party, Dr. Sazant, sought an extension of time to bring a motion under s. 21(5) of the Courts of Justice Act to challenge an order of a single judge.

The Divisional Court dismissed the motion, finding that the moving party failed to provide a reasonable explanation for the delay and that the delay prejudiced the respondents.

The court emphasized that resort to s. 21(5) should not become routine and that the justice of the case did not require granting the extension.

The union filed three grievances on behalf of the grievor.

The first challenged the employer's practice of printing the grievor's name on Polaris system abstracts, which the Board dismissed as it was founded solely on the management rights clause and did not breach the collective agreement.

The second alleged improper denial of union leave on December 24, 2008, which the Board dismissed because the employer reasonably concluded it was not possible to adhere to the schedule due to staffing shortages.

The third alleged improper denial of union leave for voting on January 30, 2009, which the Board dismissed, finding the employer acted reasonably by granting three of four requested days and offering partial leave for the fourth.

The tenants appealed a Divisional Court decision that reversed a Landlord and Tenant Board order granting a 2.5% rent reduction.

The Board had found that the landlord's removal of fenced-in gardens to build townhouses constituted a reduction in 'common recreational facilities'.

The Court of Appeal held that the Divisional Court erred in applying a correctness standard of review, finding that reasonableness was the appropriate standard.

While the Board's finding that the landscaped areas were 'common recreational facilities' was reasonable, its conclusions that there was a 'reduction' in facilities and its calculation of the rent reduction were unreasonable.

The appeal was dismissed.

The Legislative Assembly of Ontario sought leave to appeal an Ontario Municipal Board decision approving a residential development that would allegedly interfere with the public's view of the Legislative Building.

The Divisional Court applied the three-part test for leave to appeal and found that while the proposed appeal raised a question of law, there was no reason to doubt the correctness of the OMB's decision regarding the interpretation of the Official Plan and Secondary Plan.

The application for leave to appeal was dismissed with costs.

The moving party (the College) brought a motion to quash an appeal by the responding parties (the members) from an interlocutory order of the Discipline Committee.

The Discipline Committee had dismissed the members' motion for the production of additional third-party records.

The Divisional Court granted the motion to quash, finding that the statutory right of appeal only applies to final decisions, not interlocutory ones.

The court also declined the members' request to convert the appeal into an application for judicial review, noting that such an application would be premature and that the administrative process should be permitted to unfold.

The Criminal Injuries Compensation Board and the claimant, R.M., brought a motion to quash an appeal filed by the appellant, Dr. Sazant.

The appellant sought to appeal an interlocutory decision of the Board that extended the time for R.M. to file a compensation claim for alleged sexual assaults.

The Divisional Court quashed the appeal, finding that section 23 of the Compensation for Victims of Crime Act only permits appeals from final decisions, not interlocutory orders.

The Court further held that even if the proceeding were converted to a judicial review application, it would be stayed as premature to avoid fragmenting the administrative process.

The Union grieved the Employer's decision to cancel a job competition for a temporary position in Barrie after the grievor had applied.

The Employer cancelled the posting because the incumbent entered into a job trade with an employee in Newmarket, effectively moving the vacancy to Newmarket.

The arbitrator dismissed the grievance, finding that the Employer had sound and practical reasons to cancel the posting, as the job trade was a legitimate exercise of employee rights under the collective agreement that eliminated the vacancy in Barrie.

The parties sought direction on who should be given notice of the arbitration proceedings.

The grievance concerned a job posting that was discontinued after two employees arranged a job swap.

The grievor's claim was limited to travel costs, as the posted job period had expired.

The Vice-Chair held that there was no requirement to give notice to the other applicants or the employees engaged in the job swap, as there was no incumbent with an interest to protect and no possible displacement of other employees.