Rebecca Jones

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

The parties were unable to mediate a resolution to a termination grievance.

On consent, the arbitrator issued a procedural order establishing a timetable for production of documents, an agreed statement of facts, and scheduling the hearing dates for late 2024 and early 2025.

Following the settlement of the main class proceeding, the defendant and third party plaintiff brought a consent motion to dismiss the third party claims against the remaining third parties.

The court granted the order dismissing the third party action with prejudice and without costs.

The Union filed three grievances relating to a Joint Health and Safety Committee.

The first grievance alleged the employer arbitrarily directed which worker member should conduct a workplace inspection; the arbitrator found no evidence of this and dismissed the grievance.

The second grievance challenged a three-day suspension given to a worker member for insubordination after he conducted an inspection despite clear management directions not to do so; the arbitrator upheld the suspension, finding the worker was not entitled to ignore supervisory orders under the Occupational Health and Safety Act.

The third grievance sought paid time for committee members to review meeting minutes; the arbitrator dismissed this, finding the Act does not provide for such paid time outside of meeting preparation.

The plaintiffs, Bernard Finnigan and Ramon Suarez, brought a medical malpractice action against Dr. Edward Tat-Yee Lee, alleging failure to timely diagnose lymphoma and properly manage Mr. Finnigan's pain between November 2016 and January 2017.

The court found that Dr. Lee met the standard of care in his diagnosis, treatment, and pain management.

The decision emphasized that the doctor's clinical judgment was appropriately applied, that the "worst first" diagnostic principle is not the law in Ontario, and that the plaintiff's inconsistent reporting of symptoms contributed to the situation.

The action was dismissed.

The union filed grievances alleging the employer violated the collective agreement by failing to provide requested position descriptions within 20 working days.

Following mediation, the parties agreed to a consent order wherein the employer acknowledged the violation and agreed to provide the outstanding position descriptions by a specified date.

The arbitrator issued the consent order as a binding decision of the Grievance Settlement Board.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

The appellant landowner sued a municipality alleging constructive taking of approximately 965 acres of vacant land, claiming the municipality's refusal to initiate a secondary planning process — combined with alleged encouragement of public use of the lands as a park — amounted to a de facto expropriation without compensation.

The majority (5-4) held that the CPR test for constructive taking requires only that a public authority acquire a 'beneficial interest' understood broadly as an 'advantage' (not necessarily a proprietary interest), and that the municipality's intention may be a relevant material fact.

The majority restored the motion judge's order allowing the constructive taking claim to proceed to trial, finding genuine issues of material fact.

The four dissenting justices would have dismissed the appeal, holding that CPR requires acquisition of a proprietary interest and that intention is irrelevant to the de facto taking analysis.

The employer brought a preliminary motion to strike paragraphs of the union's particulars that pre-dated a 2015 grievance filed by the grievor.

The 2015 grievance, which involved family status accommodation and lost overtime, had been settled with a comprehensive release.

The arbitrator held that the settlement and release precluded the union from relying on facts relating to family status accommodation that occurred prior to the 2015 grievance.

However, particulars relating to training issues, which were not covered by the release, and events occurring after the 2015 grievance were permitted to remain.

The motion was granted in part.

In a supplementary decision following a January 2021 arbitration award, the Grievance Settlement Board addressed the grievor's claim that double CPP and EI deductions were made from his 2013 disability benefits.

Based on the employer's submissions, the Board found that the employer was required to deduct EI and CPP from the 2021 retroactive payments, and that no double deduction occurred for 2013.

The Board noted the grievor could seek special tax treatment from the CRA for the retroactive lump-sum payment.

The matter was concluded.

The arbitrator issued a confidentiality order regarding the production of documents in a grievance proceeding.

The order restricted the release, use, and copying of the documents to the employer's counsel and one advisor for the purposes of the proceeding only.

An employer sued a former supervisory employee, his spouse, and related corporations and trusts arising from a long-running undisclosed self-dealing scheme in which the employee caused the employer to retain companies he beneficially owned.

The court found the employee owed fiduciary duties because he had unilateral authority to hire contractors and approve invoices, and held he breached fiduciary duty, breach of contract, breach of confidence, and deceit by using confidential bid and budget information to direct work to his own entities without disclosure or consent.

The spouse was found liable in unlawful means conspiracy through deceitful conduct and by acting as a sham officer and director using a different name to conceal involvement.

Claims for phantom billing and conversion were dismissed for inadequate pleading and disclosure despite the court's view that the evidentiary record would otherwise have supported them.

The court ordered disgorgement of $10,264,237, punitive damages of $1,000,000, and granted accounting, tracing, and constructive trust relief.

The union sought an adjournment of a scheduled hearing because the grievor had a conflicting Family Court matter.

The arbitrator granted the adjournment but ordered the grievor to provide documentary evidence of the court date.

The employer subsequently argued the provided documentation was insufficient and sought an order for better documentation.

The arbitrator found the grievor made a good faith effort to comply but ordered him to provide written information regarding when he became aware of the conflict and why he could not advise the Board earlier.

The arbitrator issued case management directions for the hearing of four grievances referred under the Central Collective Agreement.

The directions established timelines for the exchange of document books and authorities, limited the hearing to one day, and set strict time limits for the examination and cross-examination of the two witnesses regarding a specific conversation.

The appellant, a unionized employee of the Ontario Public Service, commenced a civil action against her employer and union alleging workplace discrimination and harassment.

The motion judge dismissed the action for lack of jurisdiction, finding that the essential character of the dispute arose from the collective agreement and was therefore within the exclusive jurisdiction of a labour arbitrator or the Human Rights Tribunal of Ontario.

On appeal, the appellant argued that section 46.1 of the Human Rights Code granted the court concurrent jurisdiction.

The Court of Appeal dismissed the appeal, affirming that section 46.1 does not override the exclusive jurisdiction of labour arbitrators where the dispute arises from a collective agreement and no independent civil wrong is pleaded.

In a costs decision following a professional liability trial, the court determined that the defendants were the successful parties despite findings that they breached their fiduciary duties.

The plaintiffs had sought over $16 million in damages but were only awarded $2,000 in nominal damages.

The court found the defendants' claimed costs of $1,261,235 to be reasonable, but reduced the award by 25% to reflect the court's finding of breach of fiduciary duty.

The plaintiffs were ordered to pay $925,000 in partial indemnity costs.

The plaintiffs sued their former law firm and former in-house counsel for professional negligence and breach of fiduciary duty arising from a commercial transaction and subsequent settlement.

The court found that the former in-house counsel breached his fiduciary duty by acting for the opposing party at a mediation, and that the law firm breached its standard of care by failing to warn the plaintiffs of this conflict.

The court also found the law firm breached its fiduciary duty by obtaining an ineffective conflict waiver.

However, the court concluded that these breaches did not cause the plaintiffs' claimed business losses, as the plaintiffs would have settled regardless and suffered no loss of chance.

The court awarded nominal damages of $2,000.

This is an appeal from a Superior Court decision.

The appellants sought to appeal an order of Justice Edward M. Morgan dated June 6, 2018.

The respondents were successful on the appeal.

The court determined costs payable to the successful respondents.

The appellants made a one-million-dollar charitable donation to a mental health hospital for a designated workplace mental health program over three years.

When dissatisfied with the program's progress and reporting, the donor sought an investigation by the Public Guardian and Trustee under the Charities Accounting Act.

The motion judge dismissed the application, finding no evidence of mismanagement or misuse of funds.

The Court of Appeal upheld this decision, finding no error in the motion judge's findings that the funds were properly spent on the designated program and that no public interest was served by ordering an investigation.

The plaintiffs moved to add Dr. Peter Law as a defendant in a medical negligence action after the expiration of the applicable limitation period, alleging negligent misreading of x-rays.

The court considered the doctrines of "Special Circumstances" and "Fraudulent Concealment." While the discoverability principle did not apply to the Trustee Act limitation period, the court found that the plaintiffs successfully rebutted the presumption of prejudice against Dr. Law and established exceptional "special circumstances" due to the late, critical, and unexplained disclosure of x-ray imaging and interpretation notes by Southlake Regional Health Centre years after the limitation period expired.

The court rejected the argument of fraudulent concealment.

The motion to add Dr. Law as a defendant and amend the statement of claim was granted.