Robert G. Keel

Following a complex motion involving amendments to a statement of claim and issues relating to government funding of a transportation consortium’s defence, the court addressed costs among multiple parties.

The moving plaintiffs were successful in obtaining leave to amend their claim and to add the provincial government as a defendant, but were unsuccessful in obtaining litigation funding from the government.

The court applied the principles under Rule 57.01 of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable rather than reflective of actual legal fees incurred.

Costs of $150,000 were awarded to the plaintiffs payable by the Crown for the successful amendment issues, while the Crown was awarded $61,950 payable by the plaintiffs for the unsuccessful funding request.

The issue of the defendant consortium’s costs relating to funding was deferred to the trial judge or a future judicial review.

The plaintiffs, seven private school bus operators, brought a motion to amend their statement of claim and add the Ministry of Education as a party defendant in their action against a student transportation consortium regarding the use of Requests for Proposals (RFPs) for procurement.

The plaintiffs also sought an order declaring the Ministry's funding of the consortium's legal costs ultra vires and an interim costs funding order for their own legal fees.

The court granted leave to amend the pleadings and add the Ministry as a defendant, finding no non-compensable prejudice and that the Ministry was a necessary party given its role in directing the RFP process.

The court adjourned the issue of the consortium's funding to the trial judge, noting it required judicial review.

The court dismissed the plaintiffs' request for interim costs funding, finding they had not established impecuniosity.

The applicants filed a Request for an Order During Proceedings to amend their human rights applications to include the grounds of family status and marital status, and to add claims for monetary compensation and public interest remedies.

The respondents did not oppose the amendments but requested the opportunity to file an amended Response.

The Ontario Human Rights Commission also filed a Notice of Intervention.

The Tribunal granted the request to amend the applications and permitted the Commission to intervene as a party.

The applicant, a mother with a permanent spinal cord injury, sought an interim remedy requiring the school board to add a temporary bus stop closer to her home for her two children.

The school board's policy only accommodated children's disabilities, not parents'.

The Tribunal found the application had merit, noting the harm to the children missing school outweighed the speculative harm to the respondents.

The Tribunal granted the interim remedy, ordering the respondents to provide a bus stop near the applicants' residence until the mother obtained a mobility scooter or a final decision was reached.

The applicant, a retired teacher, alleged that the survivor benefit provisions of the Ontario Teachers' Pension Plan discriminated on the basis of sex and marital status.

The respondents sought early dismissal on the basis that the application was filed outside the one-year limitation period under section 34 of the Human Rights Code.

The Tribunal found that the alleged discrimination did not constitute a series of incidents, but rather a single incident with continuing effects that occurred either upon the applicant's retirement or his subsequent remarriage.

As the application was filed more than a year after these events and the applicant failed to establish a good faith reason for the delay, the application was dismissed as untimely.

The respondents requested an early dismissal of the human rights application, alleging that the applicant had filed a complaint with the Ontario Human Rights Commission based on the same facts.

The Tribunal found that the applicant had never filed a complaint with the Commission.

The request for early dismissal was denied, and the respondents were directed to file a full response.

The defendant moved to strike the plaintiffs' amended statement of claim under Rule 21.01(1)(b), arguing that sections 22 and 23 of the Broader Public Sector Accountability Act barred the action.

The plaintiffs, independent school bus operators, alleged the defendant breached common law duties and acted unlawfully in its procurement process for student transportation services.

The court dismissed the motion, finding it was not plain and obvious that the Act immunized the defendant from unlawful acts or limited the plaintiffs' remedies solely to damages.

The court held that the novel legal issues raised required a complete evidentiary record.

The applicant filed a human rights application alleging that the survivorship benefit provisions of the Ontario Teachers' Pension Plan discriminate on the basis of sex and marital status.

The respondent Board sought early dismissal of this and 82 other similar applications for delay.

The applicant brought a Request for an Order During Proceedings asking that the application be held in abeyance pending the Tribunal's determination of a lead case on the issue of delay.

The respondents did not object.

The Tribunal ordered the application held in abeyance pending the determination of the lead case.

The applicant filed an application alleging that the survivorship benefit provisions of the Ontario Teachers' Pension Plan discriminate on the basis of sex and marital status.

The applicant also filed a Request for an Order During Proceedings asking that the application be held in abeyance pending the Tribunal's determination of the delay issue in a lead case raising the same issues.

The respondent did not object.

The Tribunal ordered the application held in abeyance.

The applicant filed an application alleging that the survivorship benefit provisions of the Ontario Teachers' Pension Plan discriminate on the basis of sex and marital status.

The applicant requested that the application be held in abeyance pending the Tribunal's determination of a delay issue in a lead case raising the same issues.

The respondent did not object.

The Tribunal granted the request and ordered the application held in abeyance.

The moving party school board sought costs following a successful motion to vary a consent order.

The self-represented respondent had entered into the original consent order regarding his son's education despite lacking the authority to do so, as the child was under the care of a child services agency.

When the moving party discovered this and requested a variation, the respondent refused to consent, forcing an unnecessary motion.

The court awarded costs to the moving party, condemning the respondent's incivility and unreasonable conduct, and fixed the quantum at $7,500 based on what was fair and reasonable.

The parties jointly requested clarification of a previous Tribunal decision regarding the appropriate special education placement for a student with Autism.

The parents questioned whether the Tribunal had ordered placement in a mixed exceptionalities class of sixteen or an Autism class of six.

The Tribunal clarified that it ordered a small, separate class focusing on communication and social interaction, which was not strictly limited to six students but was not to be as large as sixteen, and was based on student learning needs rather than specific exceptionality categories.

The applicant school board sought an interim order under s. 4 of the Judicial Review Procedure Act to prohibit the Special Education Tribunal from proceeding with an appeal regarding a student's special education placement.

The student's mother, who was also a trustee of the school board, brought the appeal.

The school board argued the mother was in a conflict of interest and that the Tribunal lacked jurisdiction to order a placement not in the board's special education plan.

The Divisional Court found there were serious issues to be tried, that proceeding would cause irreparable harm by poisoning the atmosphere at the school board, and that the balance of convenience favoured a stay.

The motion for an interim order of prohibition was granted pending the outcome of the judicial review.

The parents of a gifted student appealed the school board's placement decision to the Special Education Tribunal.

The school board brought a preliminary motion to set aside the appeal, arguing that the appeal rights were not exhausted, that the mother's recent election as a school board trustee created a conflict of interest, and that the Tribunal lacked jurisdiction to order a placement not in the board's Special Education Plan.

The Tribunal dismissed the motion, finding that the board failed to meet the 30-day statutory timeline to issue a decision, that a trustee retains parental rights to appeal under the Education Act, and that the Tribunal has statutory authority to order appropriate placements regardless of the board's existing plan.

The parents of a 14-year-old student identified with autism appealed the school board's decision to place the student in a Developmental Education Program (DEP).

The parents argued the DEP was inappropriate and requested placement in an Autism Class, which did not exist in the board's Special Education Plan.

The board challenged the Tribunal's jurisdiction to order a placement not in its plan.

The Tribunal held it had jurisdiction under the Education Act to order an appropriate placement regardless of the board's plan.

The Tribunal found the DEP was inappropriate for the student, who is highly verbal and does not have a developmental disability.

The Tribunal ordered the board to place the student in a small, separate 'Communication' class focused on language development and social interaction.

The parents of an eight-year-old student with Autism Spectrum Disorder appealed a school board's decision regarding their child's special education placement.

The parents sought an integrated placement that would provide Intensive Behaviour Intervention (IBI) therapy in a regular class setting.

The school board argued that IBI is a therapeutic service, not an educational service, and therefore falls outside the Tribunal's jurisdiction over identification and placement.

The Tribunal agreed with the school board, finding that IBI is a specific therapy delivered by trained therapists under psychological supervision, rather than an educational program developed by teachers.

The Tribunal concluded it lacked jurisdiction to hear an appeal based on a requested learning style or therapy, and dismissed the appeal while offering recommendations for the child's educational programming.

The appellant parent appealed an Identification Placement and Review Committee (IPRC) decision placing her child, who has a severe learning disability, in a mixed exceptionalities class with a maximum of sixteen students.

The parent argued for a self-contained class with a maximum of eight students under Regulation 298, clause 31(a).

The Tribunal found that while there was a change in placement from a smaller learning disability class to a larger mixed exceptionalities class, the current placement in the Satellite Program at the secondary school was meeting the student's needs and was in the student's best interests.

The appeal was dismissed and the IPRC decision upheld.

The appellant submitted the lowest acceptable bid in response to a Request for Proposals for a computer cabling project.

Due to a budget reduction, the respondent school board negotiated with the three lowest bidders instead of solely with the appellant, ultimately awarding the contract to another bidder.

The appellant sued for breach of the duty of fairness and good faith.

The trial judge dismissed the action, finding the board was permitted to conduct wider negotiations and that any differing treatment during negotiations did not affect the outcome.

The Court of Appeal upheld the trial judge's decision and dismissed the appeal.

The parent appealed the school board's decision to place her learning-disabled child in a mixed exceptionality class, seeking a self-contained learning disability class.

At a preliminary hearing, the school board challenged the Tribunal's jurisdiction, arguing that under the new funding model and Regulation 181/98, the specific makeup of a self-contained class is a matter of the board's Special Education Plan and outside the Tribunal's authority.

The Tribunal ruled that it has jurisdiction to hear the placement appeal, finding that Regulations 298 and 181 remain in full force and are not superseded by the funding model.

The complainants, a Khalsa Sikh teacher and the Ontario Human Rights Commission, alleged that the respondent school board's policy prohibiting the wearing of kirpans on school property discriminated on the basis of creed.

The Board of Inquiry found that the policy, which classified the kirpan as a weapon, had an adverse impact on Khalsa Sikhs who are religiously mandated to wear it at all times.

The respondent failed to prove that accommodating the wearing of kirpans would cause undue hardship regarding school safety, especially given the lack of any incidents involving kirpans in Canadian schools and the respondent's willingness to accommodate proven violent students.

The Board ordered that Khalsa Sikhs be permitted to wear kirpans of reasonable size, worn under clothing and properly secured.