Porter William Beeson Heffernan

The moving parties brought a motion for leave to appeal the order of Pollak J. dated May 10, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000.

The self-represented plaintiff brought a motion for leave to amend his statement of claim to properly plead defamation against his former employer, the hospital, and to add a former colleague as a defendant.

The court found that the proposed amended pleading failed to plead the requisite elements of defamation with sufficient particularity, as it did not identify the defamatory words, when they were spoken, or to whom.

Consequently, the motion to amend was dismissed, the motion to add the new defendant was dismissed, and the action was dismissed in its entirety.

The defendant moved to dismiss the plaintiff's wrongful dismissal action, arguing the court lacked jurisdiction because the plaintiff was an employee covered by a collective agreement and the dispute should be resolved by a labour arbitrator.

The plaintiff argued he was misclassified as an independent contractor and his claim was rooted in a pre-employment contract.

The court dismissed the motion, finding it premature as the existence of a pre-employment agreement is a disputed factual issue that must be determined at trial, not on a pleadings motion.

The defendant hospital brought a motion to dismiss the plaintiff former employee's action for damages arising from alleged workplace harassment, defamation, and other torts.

The court found that the majority of the claims fell within the exclusive jurisdiction of a labour arbitrator under the collective agreement and dismissed them.

The remaining claims for threats and poisoning were struck for failing to disclose a reasonable cause of action, while the plaintiff was granted leave to amend the pleadings regarding the defamation claims.

The appellants appealed a summary judgment dismissing their wrongful dismissal action as statute-barred under the Limitations Act, 2002.

The appellants were dismissed for cause in November 2009 and commenced their action in July 2015, approximately six years later.

The appellants argued that they did not know whether a civil proceeding was an appropriate means to seek remedy until related criminal proceedings were resolved.

The Court of Appeal upheld the dismissal, holding that "appropriate" under section 5(1)(a)(iv) of the Limitations Act means legally appropriate, not whether the proceeding will succeed.

The court distinguished Winmill v. Woodstock (Police Services Board) on the basis that the civil and criminal matters were not mirror images of each other in this case.

The defendant sought costs following its successful motion for summary judgment which dismissed the plaintiffs' action as statute-barred.

The defendant claimed $37,691.87 in total costs, while the plaintiffs argued for $22,575.67.

The court reduced the defendant's fees due to duplication of work by senior and junior counsel and disallowed certain disbursements, including computer research charges.

Costs were fixed at $32,802.35 on a partial indemnity basis, payable by the plaintiffs within 60 days.

The defendant MacEwen Petroleum Inc. brought a motion for summary judgment to dismiss the plaintiffs' wrongful dismissal claim as statute-barred.

The plaintiffs argued the limitation period should run from the date of their criminal acquittals, not the date of termination, citing exceptions for claims against state agents.

The court found that the plaintiffs' claim was discoverable on the date of termination (November 9, 2009) and did not fall within the narrow exceptions for tolling the limitation period, which are typically reserved for cases involving police misconduct where civil and criminal claims are "mirror images." The motion was granted, and the plaintiffs' claims were dismissed as statute-barred.

The plaintiffs, a commercial real estate broker and his company, brought an action against the defendant brokerage firm seeking a declaration that their independent contractor agreement was terminated without cause, thereby forgiving a $225,000 loan.

The defendant counterclaimed for repayment of the loan, alleging the plaintiff terminated the agreement or was terminated for default.

The court rectified the agreement to include a mistakenly omitted provision regarding the plaintiff's leadership role and analyzed the interpretation of the plaintiff's role as the Ottawa Practice Lead for investments, finding that no strict $10 million ceiling was placed on the plaintiff's transactions.

The applicant hospital sought judicial review of an arbitral award which concluded that physician assistants fell within the scope of the paramedical bargaining unit under the collective agreement.

The hospital argued the arbitrator exceeded his mandate and applied an overly broad definition of 'paramedical'.

The Divisional Court dismissed the application, finding that the arbitrator's interpretation of the collective agreement was reasonable, grounded in the ordinary meaning of the word, the parties' practice, and labour jurisprudence, and did not improperly sweep in other excluded employee groups.

The plaintiff, Oz Optics, alleged that former employees Jing Ru Zhang and Nai-Guang Wang, along with their daughter Chen Wang, appropriated confidential information upon their resignation and sold it.

Both the plaintiff and defendants brought motions for further and better affidavits of documents.

The court ordered the defendants to produce records relating to cash receipts for 2010-2015 and Chen Wang to provide an affidavit of documents with similar records.

The court also ordered Oz Optics to produce annual and monthly sales figures and financial statements for 2010-2015, while denying many of the defendants' broader document requests based on proportionality.

Following a motion in a labour dispute concerning airport picketing activity, the court addressed the issue of costs.

The moving parties sought relief relating to noise-making during picketing or relocation of picketers closer to airport entrances, but the motion was largely unsuccessful.

Although the court vacated certain trespass notices and relocated the picketers to a more visible area, it found that the plaintiff achieved the more favourable result and incurred significant costs responding to the motion.

The court was particularly critical of false statements made in an affidavit by one of the moving parties, which required cross-examination and additional evidence to refute.

Costs were awarded to the plaintiff on a partial indemnity basis.

Union members subject to an injunction restricting protest activity at an international airport brought a motion to clarify or vary the existing order.

The dispute concerned whether drumming and other loud noise-making during picketing violated the injunction and whether trespass notices issued to certain union members were valid.

The court found the noise created a nuisance interfering with airport operations and safety obligations, particularly the ability to communicate during emergencies.

The injunction was varied to relocate picketers to a designated grassy area near the parkade and to prohibit the use of drums, improvised percussive devices, or amplification devices on airport premises.

Trespass notices issued to several individuals were ordered withdrawn.

The defendant territorial government brought a motion to dismiss or permanently stay a wrongful dismissal action commenced in Ontario by a former employee who had worked in Nunavut.

The court applied the jurisdiction simpliciter test from Club Resorts Ltd. v. Van Breda to determine whether a real and substantial connection existed between the dispute and Ontario.

The plaintiff relied on factors including recruitment activities, an Ottawa liaison office, the use of an Ontario-based investigator, and the administration of disability benefits in Ontario.

The court held these did not establish that the defendant carried on business in Ontario and therefore no presumptive connecting factor existed.

In any event, the court found that Nunavut would clearly be the more appropriate forum under the doctrine of forum non conveniens.

The defendants brought a motion for summary judgment seeking dismissal of a claim alleging breach of restrictive covenants, fiduciary duties, and misuse of confidential information after a former employee joined a competitor.

The court held that the employee did not occupy a fiduciary role and that the non‑competition and non‑solicitation clauses in the employment agreement were unenforceable due to overbreadth and ambiguity.

The plaintiff failed to produce evidence supporting allegations that confidential information had been misused and sought discovery in the hope of uncovering evidence.

Applying the culture shift in summary judgment analysis articulated in Hryniak v. Mauldin, the court held that requiring discovery would amount to an impermissible fishing expedition and that the matter could be fairly determined on the existing record.

Summary judgment was granted and the action dismissed.

The applicant employer sought judicial review of two Ontario Labour Relations Board decisions granting union certification in the construction industry.

The employer argued the Board erred by accepting a union membership card from an employee who worked on the application date but signed the card later that day after being laid off.

The Divisional Court held that the standard of review was reasonableness.

The Court found the Board's long-standing practice of not parsing the date of application into units of time of less than a day was consistent with the Labour Relations Act and its purposes.

The application for judicial review was dismissed.

The defendant sought costs following a motion that combined a motion to strike the statement of claim and a motion for summary judgment.

The court had previously indicated the original pleading disclosed no viable cause of action and permitted the plaintiff to file a fresh amended statement of claim with costs thrown away.

The defendant claimed over $115,000 in costs, arguing the amended pleading introduced entirely new causes of action and rendered extensive preparation for the summary judgment motion wasted.

The court held that the costs relating to the summary judgment motion should be treated as costs in the cause because it was unclear whether the motion would ultimately have succeeded or whether it had been premature under the principles articulated in Combined Air Mechanical Services v. Flesch.

Costs for the successful motion to strike were fixed and ordered payable immediately, while the balance relating to summary judgment was deferred pending the outcome of the action.

The applicant, a nurse, sought judicial review of two decisions by the Human Rights Tribunal of Ontario regarding her complaints against her employer hospital.

The Adjudicator had found the hospital failed to accommodate her disability after October 2009 but dismissed claims of discrimination prior to that date, and awarded monetary compensation rather than reinstatement.

The Divisional Court dismissed the application, finding the Adjudicator's decisions on the merits and remedy were reasonable and supported by the evidence, and that there was no denial of procedural fairness in limiting witness testimony to individual rather than systemic claims.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his application alleging employment discrimination based on race and place of origin.

The Divisional Court found that the Tribunal's decision was entirely reasonable, as the Vice-Chair had thoroughly reviewed the evidence, assessed credibility, and provided cogent reasons for preferring the respondent's evidence.

The application for judicial review was dismissed with costs.