Neil Finkelstein

The defendant, Her Majesty The Queen in Right of Ontario, brought a motion to stay an order dated August 4, 2017.

Following the Divisional Court's dismissal of Ontario's motion for leave to appeal on October 3, 2017, the Superior Court of Justice dismissed the motion to stay as moot.

Costs of the motion were reserved to the disposition of the defendants' motions for summary judgment.

The defendants, Ontario and OLG, brought motions to quash summonses to witness served by the plaintiffs on 13 non-parties, including former and current Cabinet ministers, in advance of pending summary judgment motions.

The plaintiffs sought to examine these witnesses under Rule 39.03 regarding the cancellation of the Slots at Race Tracks Program (SARP).

The court held that the defendants had standing to challenge the summonses and that the plaintiffs had met the low threshold of showing the proposed witnesses might have relevant evidence.

The court rejected arguments that the examinations were an abuse of process or barred by Cabinet confidentiality at this stage.

However, the court quashed the summonses served on Premier Kathleen Wynne and Minister Ted McMeekin on the basis of parliamentary privilege, as they were sitting members of the legislature.

Her Majesty the Queen in Right of Ontario (HMQ) sought an order to enforce an agreement between counsel to delay examinations under Rule 39.03 pending a motion to quash summonses, or alternatively, to stay the summonses.

The court applied the RJR MacDonald test for a stay, finding a serious issue to be tried regarding the quashing of summonses and the standing of HMQ/OLG to quash summonses for unrepresented witnesses.

The court determined that proceeding with examinations would cause irreparable harm to HMQ's legal interests by rendering the motion to quash moot.

The balance of convenience favoured HMQ, and the motion to stay the summonses was granted.

A proposed class action brought by injured workers who were denied full non-economic loss benefits under the Workplace Safety and Insurance Act on the basis of asymptomatic pre-existing conditions.

The plaintiff alleged that the denials resulted from an internal policy illegally adopted to save money.

The action was pleaded in misfeasance in public office, bad faith, and negligence.

The motion judge struck the statement of claim as disclosing no cause of action, finding the claims fell within the privative clause.

The Court of Appeal allowed the appeal, holding that the misfeasance in public office and negligence claims were properly pleaded and not plainly barred by the privative clause.

Bad faith was found not to be a free-standing cause of action but rather an element of misfeasance in public office.

The moving parties sought leave to appeal a decision dismissing their motion to disqualify the respondents' counsel of record due to an alleged conflict of interest.

The conflict allegation arose after an associate lawyer, who previously worked at the law firm representing the moving parties, joined the law firm representing the respondents.

The court applied the test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decision to satisfy Rule 62.02(4)(a) and no reason to doubt the correctness of the motion judge's order or any matter of general importance to satisfy Rule 62.02(4)(b).

The motion for leave to appeal was dismissed with costs awarded to the respondents.

The appellant union challenged the employer's unilaterally imposed mandatory random alcohol testing policy at a paper mill.

The arbitration board allowed the grievance, finding the policy unjustified absent evidence of a workplace alcohol problem.

On judicial review, the board's decision was set aside, and the New Brunswick Court of Appeal dismissed the union's appeal.

The Supreme Court of Canada (6-3) allowed the appeal, holding the arbitration board's decision was reasonable.

The majority found the board properly applied the established arbitral "balancing of interests" test, which requires evidence of enhanced safety risks to justify random testing.

The dissent would have found the board's decision unreasonable for departing from the arbitral consensus on the evidentiary threshold without explanation.

The moving parties sought a stay of an arbitration proceeding pending appeals from arbitration panel decisions concerning jurisdiction and party participation.

The dispute arose from an agreement granting the respondent First Nations partnership a right to have a nominee appointed to the board of the Ontario Lottery and Gaming Corporation.

The moving parties argued the arbitration panel lacked jurisdiction due to the Crown prerogative over appointments and that the exclusion of the corporation from the arbitration violated natural justice.

Applying the tripartite test for a stay from RJR‑MacDonald, the court found serious issues on appeal regarding jurisdiction, irreparable harm to the public interest if arbitration proceeded prematurely, and that the balance of convenience favoured the moving parties.

The court therefore stayed the arbitration pending determination of the appeals.

The appeal addressed whether a federal regulator had statutory authority to implement a market-based regime requiring negotiations over compensation for retransmission of local television signals.

The majority held the proposed regime exceeded statutory authority and conflicted with the copyright scheme governing retransmission rights and exceptions.

The dissent would have found a sufficient statutory basis and no operational conflict between the two statutes.

The appeal was allowed, with costs throughout.

In an appeal from judicial review of a copyright tariff ruling, the Court examined whether teacher-made classroom photocopies qualified as fair dealing for research or private study under s. 29 of the Copyright Act.

The majority held the tribunal unreasonably applied key fairness factors by separating teacher and student purposes, assessing amount on aggregate copying rather than excerpt-to-work proportion, treating additional textbook purchases as a practical alternative, and inferring market harm without an adequate evidentiary link.

Applying reasonableness review, the Court concluded the unfairness determination could not stand and remitted the matter for reconsideration.

A dissent would have deferred to the tribunal’s multifactor factual assessment and would have upheld the result despite one flawed effect-of-the-dealing finding.