Sara J. Erskine

The applicant, a part-time employee who suffered a workplace injury, alleged discrimination on the basis of disability and reprisal after the employer reduced her hours of work and subsequently disciplined her.

The employer had initially accommodated the applicant by providing her with more hours in a modified position than another employee with similar restrictions to avoid paying WSIB Loss of Earnings benefits.

The employer later equalized the hours between the two accommodated employees, resulting in a reduction of the applicant's hours.

The Tribunal found that equalizing the hours did not constitute discrimination and that the employer was not required to maintain unnecessary work.

The Tribunal also dismissed the reprisal allegations, finding that the discipline imposed for attendance policy violations and inappropriate workplace comments was based on legitimate concerns and lacked retaliatory intent.

Following a contested status hearing regarding dismissal for delay under rule 48.14 of the Rules of Civil Procedure, the court addressed costs.

One defendant had settled the motion with the plaintiffs without costs, while the remaining defendant continued to pursue the dismissal motion.

The court rejected the argument that the continuing defendant should not bear responsibility for the plaintiffs’ motion costs because the motion had originally been initiated by both defendants and he continued to rely on the joint materials after settlement.

Considering the defendants’ conduct and the delays caused by their insistence on pursuing dismissal rather than agreeing to a timetable, the court found it just to award costs to the plaintiffs.

The plaintiffs’ claimed costs were reduced due to insufficient supporting detail.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendant sought dismissal of an investment-related civil action for delay.

The plaintiffs alleged negligent investment advice, breach of fiduciary duty, breach of contract, and negligent misrepresentation relating to the commutation of pensions into risky investments.

Applying the two-part conjunctive test from appellate jurisprudence, the court considered whether the plaintiffs provided an acceptable explanation for the delay and whether the defendant would suffer non-compensable prejudice if the action continued.

The court found the delays were reasonably explained by ongoing regulatory complaints, counsel changes, procedural steps, and motions in the litigation.

The plaintiffs also successfully rebutted any presumption of prejudice because relevant documents were largely in the defendant’s possession and witnesses remained available.

The applicant sought to lift a stay of proceedings contained in a receivership order to permit her to bring a bankruptcy application against the respondent arising from an unpaid divorce judgment exceeding $4 million.

The receivership had been established to enforce the judgment, and the receiver had commenced related recovery litigation alleging fraudulent transfers and dissipation of assets but declined to continue the action after failing to obtain a protective costs order.

The court held that when deciding whether to lift a stay in an insolvency context, the interests of all affected parties must be balanced.

The court found that denying relief would significantly prejudice the applicant by preventing continuation of the recovery action and potentially exposing claims to limitation defences, while the respondent and other defendants would suffer no meaningful prejudice.

Leave was therefore granted to bring a bankruptcy application and, if a bankruptcy order were made, to seek assignment of the recovery action under s. 38 of the Bankruptcy and Insolvency Act.

The Member, an audiologist, faced allegations of professional misconduct for prescribing hearing aids without being involved in patient assessment, selection, or validation, and for failing to keep adequate records.

The Member admitted to the allegations and an Agreed Statement of Facts was presented.

The Discipline Committee found the Member committed professional misconduct.

Accepting a joint submission on penalty, the Committee ordered a reprimand, a one-month remitted suspension, remedial education, random audits for two years, and $4,000 in costs.

The Member, an audiologist, faced allegations of professional misconduct for prescribing hearing aids without being involved in patient assessment, selection, or validation, and for failing to keep adequate records.

The Member admitted to the allegations and an Agreed Statement of Facts was presented.

The Discipline Committee found the Member committed professional misconduct.

Accepting a joint submission on penalty, the Committee ordered a reprimand, a one-month remitted suspension, remedial education, random audits for two years, and $4,000 in costs.

The appellants appealed a decision of the Ontario Securities Commission, arguing that the Commission unreasonably inferred that the appellant had knowledge of a proposed acquisition based on circumstantial evidence.

The Divisional Court dismissed the appeal, finding that the Commission's detailed findings of fact provided clear, convincing, and cogent evidence to support the inference of knowledge.

The standard of review was agreed to be reasonableness, and the court found the Commission's inference to be reasonable and compelling.

The plaintiff sold shares of a real estate brokerage to the defendant purchaser under a share purchase agreement and promissory note for $490,000.

After making several instalment payments, the purchaser stopped paying and alleged numerous misrepresentations and breaches of warranty relating to financial statements, agent rosters, liabilities, and business operations, seeking damages and repayment through a counterclaim.

The court found that the purchaser was a sophisticated businessperson who conducted limited due diligence and knowingly proceeded without contractual protections or price adjustments.

Alleged misrepresentations regarding financial statements, agent numbers, liabilities, and business practices were unsupported, and the purchaser did not rely on them when entering the agreement.

Although the vendor breached the agreement by failing to provide audited financial statements, the breach caused no damage and was effectively waived.

The vendor was therefore entitled to recover the outstanding balance under the promissory note and the counterclaim was dismissed.

The appellants appealed a trial judgment dismissing their medical malpractice claim.

The appeal turned on whether the respondent doctor met his disclosure obligations before the appellant elected to have heel surgery.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion that the doctor provided sufficient information for informed consent was reasonably supported by the evidence.

Following a merits decision finding that the respondent Suman engaged in insider tipping and both respondents traded on undisclosed material information regarding a corporate acquisition, the Commission held a sanctions and costs hearing.

The respondents had already been subject to a US judgment ordering disgorgement and significant civil penalties for the same conduct.

The Commission ordered permanent market bans against Suman and five-year bans against Rahman.

Suman was ordered to pay an administrative penalty of $250,000 and disgorge $954,938.07, with credit given for any amounts paid under the US judgment.

The respondents were ordered to pay $250,000 jointly and severally for the costs of the investigation and hearing.

The respondents requested that the human rights application be dismissed under section 45.1 of the Human Rights Code, arguing that the applicant could have filed a union grievance to deal with the substance of the application.

The Tribunal denied the request, clarifying that section 45.1 only applies when another proceeding has actually dealt with the substance of the application, not when it merely could have.

As the relevant grievances had either been withdrawn or were not being pursued, no other proceeding had dealt with the substance of the application.

The plaintiff objected to the admissibility of a proposed accounting expert retained by the defendants in a commercial dispute involving alleged irregularities in corporate financial records and the valuation of shares.

The objection was based on allegations that the expert lacked independence due to a professional relationship with a trustee in bankruptcy connected to the underlying corporation and that the expert lacked sufficient expertise in industry standards.

The court considered the effect of Rules 4.1 and 53.03 of the Rules of Civil Procedure and whether those provisions impose a higher duty of independence than at common law.

The court held that alleged institutional bias arising from professional connections generally affects the weight of expert evidence rather than its admissibility.

Finding the expert met the Mohan admissibility criteria and possessed sufficient expertise, the court permitted the expert to testify.

The defendants brought a motion to compel a plaintiff to answer questions refused during cross‑examination on an affidavit of documents in a negligence and misrepresentation action arising from investment advice relating to the commutation of pensions.

The refusals were based primarily on solicitor‑client privilege.

The court considered whether the plaintiff had impliedly waived privilege by placing his state of mind and instructions to former counsel in issue through his testimony and the pleadings, particularly in light of the defendants’ limitation period defence.

Balancing the principles of fairness in litigation with the protection of solicitor‑client privilege, the court held that privilege was deemed waived for certain communications relating to instructions to former counsel and advice about commuting the pension.

The plaintiff was ordered to answer three of the refusal questions and reattend for cross‑examination, while one refusal relating to quantification of damages was upheld.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability and reprisal against her employer, her union, and several personal respondents.

The Tribunal held a summary hearing to determine whether the allegations against the union and union personal respondents had no reasonable prospect of success, whether the matter should be deferred to the WSIB, and whether the employer personal respondents should be removed.

The Tribunal dismissed the application against the union and union personal respondents, finding no factual foundation that the union's failure to file a grievance was based on discriminatory factors.

The Tribunal declined to defer the matter to the WSIB as there were no ongoing proceedings.

Finally, the Tribunal removed the employer personal respondents because the corporate respondents accepted vicarious liability for their actions.

The appellants appealed a summary judgment order dismissing their claim against the respondent for knowing assistance in breach of fiduciary duty.

The dispute arose from the sale of the appellants' shares in a family-owned shopping mall to the remaining family members, who then sold a 50% interest to the respondent at a higher valuation.

The Court of Appeal upheld the motion judge's finding that there was no evidence the respondent had actual knowledge of the alleged fraudulent and dishonest conduct or breach of fiduciary duties towards the appellants.

The respondents brought motions to quash the appellant's appeal from an order of a single judge of the Divisional Court.

The Court of Appeal granted the motions and quashed the appeal, finding that the appellant had appealed to the wrong court.

The proper appeal route was to a panel of the Divisional Court on a motion under section 21(5) of the Courts of Justice Act.

The self-represented appellant purported to appeal a costs-only order following the dismissal of his underlying action.

The Court of Appeal held that there is no right of appeal from a costs order and that leave is required.

Treating the materials as an application for leave to appeal costs, the Court refused leave and awarded costs of $1,000 to each of the four responding groups.

The moving party sought to set aside three orders made by the Deputy Registrar dismissing his appeals for failing to perfect them.

The underlying orders had struck out the moving party's claims against various defendants, including the Ontario Human Rights Commission, former employers, and their lawyers, for disclosing no reasonable cause of action.

The Court of Appeal dismissed the motions, finding that the moving party's delay contributed to the failure to perfect and that the proposed appeals had no reasonable prospect of success, as the OHRC cannot be sued, responses to OHRC complaints are protected by absolute privilege, and the pleadings failed to disclose known causes of action.

The appellant, a mayor, faced a compliance audit of her election campaign finances which revealed apparent contraventions of the Municipal Elections Act.

The municipal council passed a by-law authorizing the commencement of legal proceedings and retained outside counsel to prosecute.

The appellant appealed the dismissal of her application to quash the by-law and strike down s. 81 of the Act.

The Court of Appeal dismissed the appeal, finding that s. 81 is not impermissibly vague, does not violate s. 7 of the Charter, and that the delegation of prosecutorial power to outside counsel was lawful and administrative in nature.

The respondents brought a motion to exclude computer forensics evidence and a motion for a non-suit in an insider trading and tipping proceeding.

They argued that the software-generated evidence was unreliable hearsay and that the expert witness was biased and unqualified.

They also argued that Staff failed to establish a prima facie case.

The Commission dismissed the motion to exclude, finding that the software evidence possessed sufficient threshold reliability and that the expert's evidence was admissible, with issues of reliability going to weight.

The Commission also dismissed the non-suit motion, concluding that Staff's circumstantial evidence, taken at its highest, gave rise to reasonable inferences capable of supporting the allegations.