Rochelle S. Fox

The appellants, a public sector union and its officers, challenged the constitutionality of back-to-work legislation (Bill 178) that ended a five-week faculty strike at Ontario's 24 colleges of applied arts and technology in 2017.

The Court of Appeal found that the legislation limited the appellants' s. 2(d) Charter right to freedom of association by ending a lawful strike, departing from the application judge's finding of no substantial interference.

However, the court held that the limitation was justified under s. 1 of the Charter, finding that Ontario had a pressing and substantial objective of resuming classroom instruction to protect students' academic year, that the means were rationally connected and minimally impairing, and that the substitution of neutral interest arbitration for strike activity rendered the effects proportionate.

The Ontario Public Service Employees Union (OPSEU) and two individuals applied for a declaration that the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017, which ended a five-week college strike, infringed their freedom of association rights under section 2(d) of the Canadian Charter of Rights and Freedoms, and sought damages.

The Crown in Right of Ontario and the College Employer Council argued the Act did not infringe the Charter or was justified under section 1.

The court dismissed the application, finding that the Act did not substantially interfere with meaningful collective bargaining, as the parties were at an impasse.

Alternatively, the court held that even if there was an infringement, it was justified under section 1, given the pressing and substantial objective of resuming college instruction, the rational connection of the legislation, its minimal impairment (by substituting a neutral arbitration process), and its proportionality.

The Crown appealed a Superior Court decision striking down the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which eliminated TTC employees' right to strike and replaced it with binding interest arbitration.

The Court of Appeal dismissed the appeal, holding that the complete ban on strikes violates the employees' right to meaningful collective bargaining under s. 2(d) of the Charter.

The Court further found that the Crown failed to justify the infringement under s. 1, as it did not demonstrate that the complete ban was minimally impairing or that its salutary effects outweighed the deleterious effects on the workers' Charter rights.

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 plaintiffs sought to schedule an urgent motion for an interlocutory injunction to compel the closure of schools to in-person learning in York Region due to COVID-19, prior to commencing a formal proceeding.

Several unions and school boards sought to intervene.

The court scheduled the injunction motion conditionally, requiring the plaintiffs to formally commence an action or application first.

The court declined to schedule the intervention motions on an urgent basis, finding it would be unfair to the responding parties given the tight timeline.

This motion concerned the certification of a proposed class action against the provincial government regarding the negligent operation and administration of social assistance programs for developmentally disabled adults.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of section 7 of the Canadian Charter of Rights and Freedoms, primarily due to indeterminate waitlists and flawed prioritization for approved services.

The court certified the class action, allowing the negligence and Charter claims to proceed, but struck the breach of fiduciary duty claim.

Common issues related to duty of care, Charter rights, and the availability of punitive damages were certified, while aggregate damages and the amount of punitive damages were not.

R.A.R., the father of A.J.H-R., brought a motion in the Superior Court seeking to set aside an adoption order and extend the time to appeal a Crown Wardship order, which was granted without access in 2011.

This action was prompted by the Motherisk Commission's finding that hair follicle tests significantly influenced the original wardship decision.

The current motion was for directions on the proper procedural route, venue, and statutory pathway, with R.A.R. relying on sections 7 and 24 of the Charter of Rights and Freedoms.

The court adjourned the procedural motion to allow the newly retained counsel for the adoptive parents to take instructions and to encourage the parties to explore alternative dispute resolution, such as mediation, given the complex issues involved.

The United Food and Commercial Workers International Union (UFCW) and several individual complainants filed a complaint against MedReleaf Corp. under the Agricultural Employees Protection Act, 2002 (AEPA).

The complainants alleged that MedReleaf failed to provide the union a reasonable opportunity to make representations and thwarted attempts to organize through threats, intimidation, and coercion.

The Tribunal found that MedReleaf did not violate the AEPA.

MedReleaf had reasonably requested confirmation of the union's representational status, which the union refused to provide.

Furthermore, MedReleaf discharged its reverse onus under the AEPA, proving that it did not engage in an anti-union campaign, did not use external agents to intimidate employees, and did not unlawfully discipline or dismiss employees.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that denied her claim for $100,000 in general damages.

The Tribunal had found that the Ministry's subcontracting rules under the Ontario Disability Support Program discriminated against the applicant based on her disability.

However, applying the Mackin rule, the Tribunal held that damages were not available because the government's conduct in applying the policy was not clearly wrong, in bad faith, or an abuse of power.

The Divisional Court dismissed the application for judicial review, finding that the Tribunal's application of the Mackin rule to the policy directive and its conclusion that no exceptions applied were reasonable.

The applicant, a person with substance abuse and mental illness, alleged discrimination based on disability against the Ministry of Health and Long Term Care regarding access to addiction treatment facilities.

The allegations included long wait times, restrictive admission criteria, and inadequate coordination of care compared to other medical conditions.

The Human Rights Tribunal of Ontario held a summary hearing and dismissed the application, finding no reasonable prospect of success because the Ministry is not responsible for the day-to-day operations or admission criteria of independent public hospitals and community health service providers.

The appellants challenged the constitutional validity of Brian's Law, which amended the Mental Health Act to expand criteria for involuntary committal and introduce community treatment orders (CTOs).

They argued the law violated section 7 of the Charter by authorizing forced treatment with neuroleptic medication.

The Court of Appeal upheld the application judge's dismissal of the challenge, finding that the legislation's highly individualized assessment criteria ensured it was not arbitrary, overly broad, or grossly disproportionate.

The court also dismissed claims under sections 9, 10, 12, and 15 of the Charter.

The applicant brought an urgent application for physician-assisted death and sought confidentiality orders, including a publication ban and sealing order, without giving notice to the media.

The court balanced the open court principle with the applicant's dire medical circumstances and privacy interests.

The court granted an interim publication ban and sealing order, authorized the use of pseudonyms, and directed the applicant to provide notice to the media, giving the media 60 days to bring a motion to challenge the orders.

The applicant filed a human rights application alleging discrimination in employment on the basis of sex, family status, and reprisal.

As part of her application, she challenged the constitutionality of subsection 48(3) of the Employment Standards Act, 2000, arguing it contravenes the Human Rights Code.

The Ministry of the Attorney General requested to intervene solely on the constitutional issue.

The Tribunal granted the Ministry's request to intervene, noting its mandate to participate in proceedings where legislation is challenged and finding that its intervention would provide a more fulsome record.

Following the dismissal of a constitutional challenge to amendments to the Mental Health Act enacted through Brian's Law, the unsuccessful public interest applicant sought costs on a partial indemnity basis.

The court considered whether this was one of the rare and exceptional cases where costs should be awarded to an unsuccessful constitutional litigant.

Applying the discretionary principles governing costs under s. 131(1) of the Courts of Justice Act and jurisprudence on public interest litigation, the court emphasized factors including the importance of the issues, the novelty of the constitutional challenge, the applicant’s limited resources, and the quality of the litigation.

The court also considered that interim funding might have been granted had it been requested.

Weighing all factors, the court concluded that the circumstances justified a partial costs award.

Applicants challenged the constitutionality of amendments to Ontario’s Mental Health Act introduced by Brian’s Law, including expanded civil commitment criteria (Box B) and the community treatment order regime.

They alleged the provisions violated ss. 7, 9, 10, 12, and 15 of the Canadian Charter of Rights and Freedoms by permitting involuntary psychiatric assessment, detention, and community-based treatment for persons not posing a danger to themselves or others.

The court held that the legislation pursued a dual purpose of public safety and improved treatment for individuals with serious mental illness, and that the impugned provisions were neither overbroad, arbitrary, vague, nor grossly disproportionate.

Procedural safeguards, individualized clinical assessments, and consent mechanisms supported the statutory scheme’s constitutionality.

The Charter challenge was dismissed.

The appellants, a police officer and the Chief of Police, appealed a Divisional Court decision upholding a Human Rights Tribunal of Ontario finding that the officer discriminated against a Black mail carrier.

The officer stopped and questioned the mail carrier while on patrol in an affluent neighbourhood.

The Court of Appeal dismissed the appeal, finding that the Tribunal reasonably applied the prima facie test for discrimination, correctly placed the onus on the complainant, and properly considered the unique statutory duties of police officers.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they discriminated against the respondents, two Black men, by asking them for identification in a lawyers' lounge.

The Divisional Court quashed the Tribunal's decision, finding no evidence of differential treatment or a causal nexus to race.

The Court held that the Tribunal improperly reversed the burden of proof by requiring the applicants to provide a non-discriminatory explanation for routine identification checks without the respondents first establishing a prima facie case of discrimination.

The applicants sought disclosure of documents relating to the respondent's consideration of an expert report on infertility.

The respondent claimed public interest immunity over the documents, arguing they were generated during an ongoing policy development process.

The Tribunal found that the documents were arguably relevant but concluded it was premature to determine the public interest immunity claim.

The Tribunal ordered the respondent to clarify its position on undue hardship and certain factual conclusions before the balancing of public interests could be properly assessed.

The applicant filed a human rights application alleging discrimination on the basis of disability regarding the respondent's refusal to fund in vitro fertilization treatments.

The applicant requested an order to consolidate her application with four already consolidated applications proceeding as a Lead Case.

The Tribunal denied the request, finding that adding a fifth case would complicate and lengthen the proceedings, and that the existing Lead Case already covered a range of biomedical conditions causing infertility.

The Tribunal set a schedule for submissions on whether to defer the application pending the outcome of the Lead Case.

The Ontario Human Rights Commission sought reconsideration of a Tribunal decision that extended the period for the respondent government to comply with an order regarding special diet benefits.

The Commission argued that the Tribunal was functus officio and lacked the power to extend the compliance period.

The Tribunal dismissed the request, finding that the doctrine of functus officio does not restrict administrative tribunals more than courts, and that the Tribunal has the power to extend time periods for compliance with ordered remedies, similar to the Supreme Court of Canada in Charter cases.