Paul J.J. Cavalluzzo

The appellants, a postal workers' union and its representatives, sought a declaration that federal back-to-work legislation ending rotating strikes in 2018 unjustifiably limited their members' freedom of association under s. 2(d) and freedom of expression under s. 2(b) of the Charter.

The application judge dismissed the application as moot because the legislation was spent and declined to exercise discretion to decide on the merits under the Borowski criteria.

On appeal, the Court of Appeal agreed the application was moot and deferred to the discretionary decision not to hear it on the merits.

In the alternative, the court found the legislation limited s. 2(d) rights but was justified under s. 1, and that neither the Prime Minister's public statement nor the Act limited s. 2(b) rights.

Appeal dismissed.

This costs endorsement addresses the quantum of costs sought by an intervenor, Canada Post Corporation (CPC), following the unsuccessful constitutional challenge by the Canadian Union of Postal Workers (CUPW) against back-to-work legislation.

While CUPW settled costs with the Attorney General, CPC sought an additional $492,258.13.

The court found CPC's request extraordinarily high for an intervenor, noting the Attorney General was the lead responding party.

Applying principles of proportionality and reasonable expectations under the Courts of Justice Act and Rules of Civil Procedure, the court reduced CPC's costs to an all-inclusive amount of $150,000.

The Canadian Union of Postal Workers (CUPW) challenged the constitutionality of the Postal Services Resumption and Continuation Act (PSRCA), SC 2018, c 25, arguing it infringed freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms.

The legislation ended a series of rotating strikes and imposed a mediation-arbitration process.

The court found the application moot because the PSRCA was spent legislation, having led to new collective agreements, and there was no live controversy or suitable remedy.

However, in obiter, the court stated that if the matter were not moot, the PSRCA would infringe s. 2(d) but would be justified under s. 1 of the Charter, as it constituted a minimal impairment due to its fair and neutral dispute resolution mechanism, unlike previous unconstitutional back-to-work legislation.

The Court of Appeal for Ontario issued supplementary reasons regarding the remedy and costs following its prior decision (2023 ONCA 139) which declared s. 37.10.1(2) of the Election Finances Act unconstitutional.

The appellants sought to invalidate additional provisions, including the definition of "political advertising," s. 37.0.1, s. 37.10.1(3)-(3.1), and s. 37.10.2.

The court declined this request, finding these provisions were not inextricably linked to the previously invalidated section and were not independently shown to infringe section 3 of the Canadian Charter of Rights and Freedoms.

The court also noted that the election period spending limits (s. 37.10.1(1)) were not challenged and remain in force.

No disposition was made as to costs, as the parties had reached an agreement.

This appeal concerned the constitutional validity of Ontario's third-party election spending limits, specifically the extension of the pre-writ restricted period from 6 to 12 months without increasing the spending cap.

The appellants argued this infringed the informational component of the right to vote under s. 3 of the Charter, which is not subject to the notwithstanding clause (s. 33).

The Court of Appeal found that while s. 33 was properly invoked, the extended spending restrictions were not "carefully tailored" and did not permit a "modest informational campaign," thereby infringing the s. 3 right to meaningful participation in the electoral process.

The infringement was not justified under s. 1 of the Charter.

The court declared the impugned provision invalid and suspended the declaration for 12 months.

This appeal concerns the Divisional Court's quashing of three Ontario Labour Relations Board (OLRB) decisions, which had declared Tomasz Turkiewicz Custom Masonry Homes (TTCMH) and Brickpol Masonry Corporation (Mr. Turkiewicz's former business) a single employer under s. 1(4) of the Labour Relations Act, 1995, bound TTCMH to a collective agreement, and awarded damages to the Unions.

The Court of Appeal found that the Divisional Court erred in its application of the reasonableness standard of review, as articulated in Canada (Minister of Citizenship and Immigration) v. Vavilov.

The Court of Appeal held that the OLRB's decisions were reasonable, as the Board properly considered the erosion of bargaining rights as a valid labour relations purpose for the related employer declaration, adequately addressed the hiatus between businesses, and made a reasonable damages award.

The appeal was allowed, and the OLRB decisions were restored.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The applicants challenged the constitutionality of amendments to the Election Finances Act that imposed a 12-month pre-writ restricted spending period for third-party political advertising.

The government had previously enacted similar amendments that were struck down under section 2(b) of the Charter, but re-enacted them using the section 33 notwithstanding clause.

The applicants argued the amendments violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.

The court dismissed the application, finding that the spending limits were carefully tailored to the egalitarian model of elections and did not infringe the right to meaningful participation in the electoral process.

The Participating Nursing Homes (PNH) appealed a Divisional Court decision that upheld a Pay Equity Hearings Tribunal order.

The Tribunal had directed the PNH and unions to negotiate a gender-neutral comparison system (GNCS) for maintaining pay equity, specifically to address changes in job duties and ensure ongoing compliance with the Pay Equity Act.

The PNH argued that the Act did not require them to tie their maintenance obligation to the proxy employer's historical valuation of male jobs.

The Court of Appeal dismissed the appeal, affirming the Tribunal's authority to ensure compliance with the Act and the necessity of ongoing comparison, including through the proxy method, to maintain pay equity.

The Court of Appeal for Ontario dismissed an appeal from the Divisional Court, which had found the Pay Equity Hearings Tribunal's decision unreasonable.

The case concerned the interpretation of the Pay Equity Act, specifically whether the statutory proxy method, used to establish pay equity in female-dominated workplaces, must also be used to maintain it.

The Tribunal had ruled that the proxy method was not required for maintenance, leading to an internal comparison method.

The Court of Appeal affirmed that the Tribunal's interpretation was unreasonable, as it ignored the Act's purpose, scheme, and wording, which necessitate an ongoing comparison to male (or deemed male) comparators to redress systemic gender discrimination.

The matter was remitted to the Tribunal to specify procedures for maintaining pay equity using the proxy method.

The appellant, a federally-regulated Crown corporation, appealed a Federal Court of Appeal decision reinstating a Health and Safety Officer's direction that the employer had contravened s. 125(1)(z.12) of the Canada Labour Code by failing to ensure that workplace safety inspections covered letter carrier routes and points of call beyond the physical depot building.

The appeals officer had concluded that the statutory inspection obligation applied only to workplaces the employer physically controls, and the Federal Court upheld that decision.

The majority of the Supreme Court applied the Vavilov framework for reasonableness review and held that the appeals officer's interpretation — confining the inspection duty to employer-controlled premises — was reasonable, internally coherent, and defensible in light of the text, context and purpose of the provision.

The appeal was allowed and the appeals officer's order was restored.

Canada Post Corporation appealed an arbitrator's decision that reinstated Christopher Seivright, a temporary postal worker, after his dismissal for failing to demonstrate reasonable availability in accepting work assignments.

The arbitrator rejected Canada Post's use of a peer average acceptance rate (37.8% versus 49.9% peer average) as the sole basis for termination, finding it arbitrary and unreasonable.

The arbitrator considered contextual factors including the 24/7 operation of the York Distribution Centre, high parcel volume, the grievor's seniority, and the actual number of shifts worked (57 shifts, placing him in the top 25-30% of temporary employees).

The Divisional Court upheld the arbitrator's decision as reasonable despite departing from prior arbitral jurisprudence on certain points.

The Court of Appeal dismissed the appeal, finding no binding arbitral precedent for mechanical application of acceptance rate standards and confirming that reasonable availability must be assessed on a case-by-case basis considering relevant workplace circumstances.

Several trade unions and the Canadian Labour Congress brought motions for leave to intervene as added parties or as friends of the court in an action challenging the constitution of the Amalgamated Transit Union.

The moving parties argued they had an interest in the proceeding because their own constitutions contained similar provisions and they could be adversely affected by the precedent.

The court dismissed the motions, finding that an interest based solely on the potential precedential effect of a decision is insufficient for intervention as an added party under Rule 13.01.

The court also denied leave to intervene as friends of the court under Rule 13.02, concluding that the proposed interveners' submissions would largely duplicate the arguments of the defendant union and would not provide a materially different perspective.

The applicant, Myriam Michail, sought leave from the Superior Court of Justice to bring an application for judicial review of an arbitration award and an Ontario Labour Relations Board decision, along with a constitutional challenge.

Ordinarily, such applications are heard by the Divisional Court.

The applicant argued urgency due to protracted proceedings, health issues, inability to travel, and lack of income.

The court, while acknowledging the applicant's subjective distress, found that the objective criteria for urgency and a likely failure of justice under s. 6(2) of the Judicial Review Procedure Act were not met.

The court emphasized the complexity of the issues, the need for a three-justice panel (Divisional Court's expertise), and the availability of alternative arrangements like video conferencing.

The motion for leave was dismissed, and the judicial review application was transferred to the Divisional Court.

Following a judgment that retroactively struck down the Restoring Mail Delivery for Canadians Act (Bill C-6), the applicants sought further declaratory relief under s. 24(1) of the Charter.

They argued that the collective agreement, which had been extended by s. 6 of the invalidated Act, should remain enforceable despite the Act's retroactive invalidity.

The court was asked to determine if this was a "remaining remedial issue" under a prior consent agreement, and if it had jurisdiction to grant such relief.

The court found that the applicants' request was not a "remaining remedial issue" as defined by the consent agreement, which was limited to s. 52(1) declarations and s. 24(1) monetary damages.

The court also determined it lacked jurisdiction to alter its final judgment by granting a new constitutional remedy, emphasizing the principle of finality in judicial decision-making.

The issue of the collective agreement's enforceability was deemed properly before the Québec Superior Court.

The applicant union challenged the constitutionality of the Restoring Mail Delivery for Canadians Act, back-to-work legislation enacted in response to rotating strikes and a nationwide lockout.

The Act mandated the resumption of mail delivery, extended the previous collective agreement, prohibited strike activity, and imposed a final offer selection arbitration process.

The court found that the Act violated the guarantee of freedom of association under s. 2(d) of the Charter by substantially interfering with a meaningful process of collective bargaining.

The court also found that the Act violated freedom of expression under s. 2(b) by prohibiting strike activity, which conveys meaning.

Neither violation was justified under s. 1 of the Charter.

The court declared the Act unconstitutional and of no force or effect retroactively.

During the hearing of an application, the intervener provided a chart that was not entered into evidence.

The court indicated that a further chart could be jointly submitted post-hearing only if all parties agreed to its contents.

As the parties were unable to agree, the court ruled that no further charts, including one submitted by the applicants, would be accepted for filing.

Applicants in two related constitutional applications sought procedural relief to separate challenges to two different federal statutes enacted within the same budget legislation: the Expenditure Restraint Act and the Public Sector Equitable Compensation Act.

They requested severance of the combined challenges or, alternatively, leave to amend the applications to pursue only the wage restraint challenge while preserving the right to challenge the pay equity legislation later.

The court held that although the Rules of Civil Procedure contain no explicit severance mechanism for applications, the requested relief could be granted through amendment principles under Rule 26.01 where no non-compensable prejudice arises.

The court granted leave to amend the notices of application to retain only the Expenditure Restraint Act challenge and permitted the applicants to commence a future application concerning the Public Sector Equitable Compensation Act.

No costs were awarded, and the parties were encouraged to seek case management.

Public sector unions and individual employees brought constitutional challenges to two federal statutes enacted through omnibus budget legislation: the Expenditure Restraint Act and the Public Sector Equitable Compensation Act.

The applicants moved to sever the combined challenges or, alternatively, amend their applications to retain only the Expenditure Restraint Act challenge and pursue the pay equity challenge later.

The respondent opposed severance, arguing the evidence and pleadings were already intertwined.

The court held that although the Rules of Civil Procedure do not expressly provide for severance of an application, leave to amend under Rule 26.01 was appropriate because no non-compensable prejudice would result.

Leave was granted to amend the notices of application to proceed only with the Expenditure Restraint Act challenge, without prejudice to commencing fresh applications challenging the Public Sector Equitable Compensation Act.