COURT FILE NO.: 414/22
DATE: 2022/09/01
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
IN THE MATTER OF an Application for Judicial Review pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (as amended)
BETWEEN:
PUROLATOR CANADA INC.
Applicant
- and –
CANADA COUNCIL OF TEAMSTERS, TEAMSTERS LOCAL UNION NO. 31 and ARBITRATOR NICHOLAS GLASS
Respondents
Gerald Griffith and Natalie Nicholson for the Applicant
Howard Goldblatt and Melanie Anderson for the Respondent Teamsters Local Union No. 31.
HEARD: August 31, 2022
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Purolator Canada Inc. brings an Application for an Order setting aside a decision of Arbitrator Nicholas Glass dated June 24, 2022 in a group of grievance arbitrations filed by Teamsters Local Union No. 31 in British Columbia. The Arbitrator refused to bifurcate the arbitration between a preliminary determination about whether res judicata applies and the hearing on the grievances on their merits.
[2] On its Application, Purolator seeks an Order directing the Arbitrator to first hear a preliminary motion that he is without jurisdiction to hear the grievances on the merits because of res judicata, issue estoppel, or abuse of process.
[3] Now before the court is a motion by Purolator for an Order staying the arbitration pending the determination of its Application
[4] For the reasons that follow, the motion for a stay and the Application in its entirety is dismissed.
[5] The Superior Court does not have jurisdiction simpliciter to hear the Application and its interlocutory motion, and in the alternative, if the Ontario Superior Court has jurisdiction simpliciter, the Ontario court is forum non-conveniens.
B. Facts
[6] Purolator is an integrated freight, package, and logistics provider with operations across all of Canada. Purolator is federally regulated with respect to labour relations and employment pursuant to, among other legislation, the Canada Labour Code[^1]and the Canadian Human Rights Act.[^2]
[7] Pursuant to bargaining certificates issued by the Canada Labour Relations Board on February 2, 1995, the Respondent Canada Council of Teamsters holds bargaining rights for the employees and owner/operators of Purolator across the country. The union locals, including the Respondent Teamsters Local Union No. 31, do not hold bargaining rights with respect to the employees governed by the Collective Agreement. The Canada-wide Collective Agreement between Purolator and the Council was signed in Toronto, Ontario. The grievance procedure under the Collective Agreement is administered locally between Purolator and the local union in twelve regions, two of which are in Ontario.
[8] After the onset of the Covid-19 pandemic across Canada, on September 15, 2021, Purolator implemented a “Covid-19 Safer Workplaces Policy”. The Covid-19 Policy applies across Canada to all of Purlorator’s workplaces.
[9] The Covid-19 Policy included a requirement that employees become fully vaccinated against Covid-19. Subject to human rights exceptions, the Covid-19 Policy required employees to be fully vaccinated against Covid-19 by December 31, 2021. Any employee who did not provide proof of full vaccination would not be given access to the workplace subject to human rights exemptions and were placed on unpaid leave of absence. The Covid-19 Policy also included directives with respect to masks and social distancing in the workplace.
[10] It should be noted that the Covid-19 Policy was developed at the time when the dominant variant was the Delta variant, but the policy is now being applied when that Delta variant had been succeeded by the Omicron variant. It shall also be noted that when Purolator implemented the Covid-19 Policy, it was prepared to regularly review it, at least quarterly, and to update it in accordance with public health guidelines.
[11] After the introduction of the Covid-19 Policy, union locals of the Canada Council of Teamers filed some 390 grievances across Canada in an attempt to challenge the reasonableness of the Covid-19 Policy and its mandatory COVID-19 vaccination requirement as it applied to individual employees.
[12] It is the Union locals not the Canada Council that are the litigants in the grievance procedures.
[13] Amongst these 390 grievances, between December 2021 and January 2022, Teamsters Local 31, which is situated in British Columbia, filed 31 grievances, including individual grievances and one group/policy grievance. The grievances challenged, among other things, the reasonableness of the Covid-19 Policy.
[14] The grievances were filed with Purolator’s Pacific region Human Resources Business Partner (located in Richmond, BC) by Local 31 (located in Delta, BC) on behalf of its members (located across BC). The parties agreed that Local 31’s grievances should be heard by Arbitrator Nicholas Glass in British Columbia.
[15] The grievances before Arbitrator Glass were filed by Local 31 on behalf of its members alleging that, by putting members out of work (through termination, unpaid leaves of absences, and otherwise), Purolator violated the collective agreement between the parties. The Union submits that the grievances are not just about the about the reasonableness of the Covid-19 Policy.
[16] At the same time as the grievances in British Columbia, other Teamsters’ local unions were filing grievances. In January 2022, in Toronto, Local Union 938 filed grievances challenging the reasonableness of the Covid-19 Policy. The arbitrator for these grievances was Mathew Wilson. Grievances were filed in Québec to be heard by another arbitrator, Marcel Morin. The grievance before Arbitrator Wilson was based on an agreed statement of facts. There were no contested facts and no proffering of testimony.
[17] On March 15, 2022, Arbitrator Wilson released a decision in the Toronto Local Union 938 grievances, and he upheld the reasonableness of the Covid-19 Policy.
[18] With the release of the Wilson Award, in the ongoing grievances being arbitrated in Québec Purolator argued that the grievances should be dismissed on the grounds of res judicata and on April 21, 2022, in the British Columbia grievances, Purolator advised Local 31 that it intended to argue that Arbitrator Glass had no jurisdiction because the dispute was res judicata.
[19] On April 27, 2022, in the Québec grievances, Arbitrator Morin agreed with Purolator’s jurisdiction argument, and he held that he no longer had jurisdiction and that res judicata applied. He dismissed the Union’s outstanding grievances on the basis of res judicata. It should be noted that like the situation with Arbitrator Wilson, what was before Arbitrator Morin was an agreed statement of facts.
[20] On May 17, 2022, in the proceeding before Arbitrator Glass, Purolator argued on a preliminary basis that res judicata and issue estoppel also applied to the Local 31’s grievances and, as such, Arbitrator Glass no longer had jurisdiction to hear the Local 31 Grievances.
[21] In light of this argument, Arbitrator Glass requested submissions from the parties regarding whether to bifurcate the hearing to deal with the res judicata issue.
[22] Local 31 opposed the idea of bifurcating the hearing. It argued, among other things, that: (a) the grievers included employment classifications not addressed by either the Wilson or Morin Awards; (b) the issues extended beyond the reasonableness of the vaccine policy; (c) neither Arbitrator Wilson nor Arbitrator Morin had considered scientific and medical evidence that the basis for the Policy introduced in October 2021 was no longer a proper consideration with the emergence of the Omicron variant; and (d) unlike the situation in the Wilson and Morin arbitrations, the local union proposed to lead evidence about the changed factual circumstances of the Covid-19 pandemic and about how the Covid-19 policy was being applied in individual cases.
[23] On June 24, 2022, Arbitrator Glass issued a procedural Award in which he refused to bifurcate the arbitration proceedings. Rather, he decided that he would hear the res judicata objections at the conclusion of the hearing on the merits, rather than as a preliminary issue or by way of a bifurcated hearing.
[24] On July 22, 2022, Purolator commenced an application to the Divisional Court in the Superior Court of Justice in Ontario for judicial review of Arbitrator Glass’s Award and decision not to bifurcate the arbitration. Purolator sued the Arbitrator, and Teamsters Local Union No. 31 and the Canada Council of Teamsters.
[25] In the Application in Ontario, Purolator added the Canadian Council of Teamsters Unions as a respondent, although the Council was not a party to, and did not participate in, the grievance arbitration before Arbitrator Glass, nor before either Arbitrators Wilson or Morin.
[26] The hearing of Local 31’s grievances is scheduled for eight days commencing on September 8, 2022 (with subsequent hearing dates on September, 9 and 12, and October 3, 4, 5, 6 and 7, 2022.).
[27] On the Application, although served, neither Arbitrator Glass nor the Canada Council of Teamsters delivered a Notice of Appearance, and neither appeared on the return of the motion.
C. The Arguments of the Parties
1. Purolator’s Argument
[28] Purolator argues that Arbitrator Glass’s decision defeats the very purpose of res judicata because by refusing to bifurcate and to decide the matter of res judicata first, there will be an eight-day hearing relitigating the reasonableness of the Covid-19 policy, which has already been litigated as has the issue of whether res judicata applies. Purolator submits that permitting the arbitration to proceed is an abuse of process that would set a dangerous precedent and allow local unions across Canada to have a hearing simply by asserting (not proving) that their grievances about the Covid-19 Policy are different.
[29] Purolator argues that the Divisional Court has the jurisdiction to review a decision of an arbitration board established under the Canada Labor Code and to grant an interim stay.[^3] The Divisional Court has jurisdiction simpliciter because the dispute is in essence about a breach of contract, the Collective Agreement, which was entered into in Ontario.[^4]
[30] Purolator argues that the three-part test from RJR Macdonald Inc. v. Canada (Attorney General), [^5] governs whether the court should grant a stay.
[31] Purolator argues that it satisfies the first step of the RJR Macdonald Inc. test that there is a serious issue to be tried.[^6] And, it argues that it also satisfies the higher threshold test of a strong prima facie case that the arbitration before Arbitrator Glass is res judicata.[^7]
[32] Purolator argues that proceeding to a hearing on the merits, when the ultimate result of said hearing may be a finding that the hearing should never have occurred, is a breach of the rules of natural justice and procedural fairness. It submits that this is particularly true in a labour arbitration proceeding where a party is rarely, if ever, entitled to a costs award, even if successful.
[33] Purolator argues that it satisfies the first step of the RJR Macdonald Inc. test. Purolator argues that it will suffer irreparable harm if a stay is not granted,[^8] because if a stay is not granted, it will be forced to re-litigate the reasonableness of the Covid-19 Policy and the very purpose of the judicial review will be rendered moot, which is irreparable harm.[^9]
[34] Purolator submits that there is irreparable harm for three reasons. First, if left to stand, Arbitrator Glass’s decision would create a dangerous precedent and destabilize the labour relations between the parties. Second, if left to stand, the Award would cause confusion and unfairness by permitting the Union to repeatedly challenge in close succession the reasonableness of a policy that applies Canada-wide, and it would expose employees to differential treatment under the same policy in different regions.
[35] Purolator argues that the balance of convenience favours granting the stay.[^10] It argues that Teamsters Local Union 331 will not be prejudiced by the stay and the interests of justice favour granting an interim stay.
2. Teamsters Local Union No. 31’s Argument
[36] Teamsters Local Union No. 31 submits that the Divisional Court does not have jurisdiction simpliciter, and the Court does have jurisdiction, then it is a forum non conveniens. The Teamsters Local Union 31 also argues that, in any event, it is premature to seek judicial review of what is at most a preliminary procedural motion about how an arbitration will be conducted.
[37] Teamsters Local Union No. 31 submits that if the Divisional Court assumes jurisdiction, then the court ought not make an order staying Arbitrator Glass Award. Teamsters Local Union 31 states that subject to the qualification that Purolator must show a strong prima facie case,[^11] the three-part test from RJR Macdonald Inc. v. Canada (Attorney General) governs whether the court should grant a stay. However, Teamsters Union No. 31 submits that Purolator satisfies none of the factors that would justify a stay.
[38] Teamsters Local Union No. 31 submits that for two reasons, Purolator has not demonstrated a strong prima facie case or even a serious issue to be tried.
a. First, what is being judicially reviewed is just the reasonableness of a purely procedural decision within the discretion expressly granted to an arbitrator under the Canada Labour Code[^12] as to how an arbitration should be conducted and where no decision is being about the merits of the grievance or the merits of Purolator’s defence of res judicata and where the judicial review jurisprudence establish that courts are not inclined to interfere pre-emptively with purely procedural decisions.[^13]
b. Second, it is patently reasonable for the Arbitrator to reject Purolator’s request that its res judicata defence proceed first when that issue is inextricably connected with the merits of Local Union 31’s grievances and its argument that Arbitrator Wilson’s award did not and could not raise a res judicata because Arbitrator Wilsons award was: (a) based on agreed facts; i.e. not contested facts and thus there was no re-litigation; (b) the contested facts of the grievances in British Columbia were different than the agreed facts in the Wilson arbitration and thus there could not be any issue estoppels; and (c) the circumstances, which involved the livelihoods of the Purolator employees, were such that it was not in the interest of justice to bar arbitration of their individual and unique grievances even if the technical requirements of res judicata were satisfied.
[39] Teamsters Local Union 31 submits that there is no irreparable harm and no evidence of irreparable harm suffered by Purolator.
[40] Teamsters Local Union 31 submits that the balance of convenience overwhelming favours not staying the grievances and not interfering with the rights of the employees to test the reasonableness of the Covid-19 Policy and the reasonableness of its application in their idiosyncratic circumstance when they are being disciplined under a Covid-19 policy, which itself provides for periodic reassessment in light of changed circumstances.
D. Discussion and Analysis
[41] Because of my decision that this Court does not have jurisdiction simpliciter and that in any event, Ontario is forum non conveniens, it follows that the stay motion and the Application must be dismissed. I shall, therefore, not address the merits of the stay motion.
[42] Teamsters Local Union 31 submits that the stay motion and the judicial review application be dismissed on the grounds that the Divisional Court does not have jurisdiction. There are two aspects to this argument.
a. The first aspect is that Teamsters Local Union 31 submits that the Ontario Court does not have jurisdiction simpliciter, which is to say that the Divisional Court cannot properly assume jurisdiction over the dispute given the interrelationship among the dispute, the parties, and Ontario.[^14]
b. The second aspect is that Teamsters Local Union 31 submits that if jurisdiction simpliciter, or subject-matter jurisdiction, exists, then the Divisional Court should decline to exercise its jurisdiction on the grounds that there is another court or tribunal capable of assuming jurisdiction and that court or tribunal would be the more convenient forum.[^15] (Forum non conveniens only comes into play when jurisdiction is established; it has no relevance to the jurisdictional analysis itself.[^16])
[43] The test for whether an Ontario court has jurisdiction simpliciter is whether there is a real and substantial connection between the matter, the parties, and Ontario.[^17] The real and substantial connection test for assumed jurisdiction was designed to ensure that claims are not prosecuted in a jurisdiction that has little or no connection with either the transactions or the parties.[^18]
[44] In Club Resorts Ltd. v. Van Breda,[^19] the Supreme Court of Canada developed an analytical framework for determining whether a court has jurisdiction simpliciter. The analytical framework begins by identifying circumstances where a court may presumptively assume jurisdiction on the basis of a real and substantial connection with the litigation.
[45] If a presumptive connection applies, the connection can be rebutted by the defendant through evidence that the connection is weak. The burden of rebutting the presumption of jurisdiction rests on the defendant. In order to rebut the presumption, the defendant must demonstrate that the relationship between the forum and the subject matter of the litigation is such that it would not be reasonable to expect that the defendant would be called to answer proceedings in that forum. [^20]
[46] Where a court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist, or because the presumption of a connection has been rebutted, the court does not exercise any discretion and subject to the forum of necessity doctrine, where the court assumes jurisdiction as a matter of necessity, the court must dismiss or stay the action.[^21]
[47] In Club Resorts Ltd. v. Van Breda, at paragraph 64, Justice LeBel summarized the analytical framework as follows:
- In summary, the … approach offers a simplified test in which the roles of a number of the factors of the Muscutt test have been modified. In short, when one of the presumptive connecting factors applies, the court will assume jurisdiction unless the defendant can demonstrate the absence of a real and substantial connection. If, on the other hand, none of the presumptive connecting factors are found to apply to the claim, the onus rests on the plaintiff to prove that a sufficient relationship exists between the litigation and the forum. In addition to the list of presumptive and non-presumptive factors, parties can rely on other connecting factors informed by the principles that govern the analysis.
[48] Contracts made in the domestic jurisdiction, and carrying on business in the jurisdiction, with the qualification that the business must have an actual and not a virtual presence are presumptive connecting factors.[^22]
[49] If the Ontario court has jurisdiction simpliciter, the question becomes whether it should exercise that jurisdiction if there is another forum that also has jurisdiction over the matter. This question is the discretionary matter of forum non conveniens.
[50] Before staying its own proceedings on the grounds of forum non conveniens, the Ontario court must be satisfied that there is another jurisdiction connected with the matter in which justice can be done between the parties at substantially less inconvenience and expense.[^23] This test favours the plaintiff’s right to choose a forum, but the test requires the domestic court to examine which jurisdiction has the most real and substantial connection with the action and the parties.[^24] Once jurisdiction simplicity is established, the party seeking to displace the jurisdiction chosen by the plaintiff bears the burden, in the forum non conveniens analysis, to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum.[^25]
[51] In making this analysis, courts have developed a list of factors including: (a) the location of the majority of the parties; (b) the location of the key witnesses and evidence; (c) contractual provisions that specify applicable law or accord jurisdiction; (d) the avoidance of multiplicity of proceedings; (e) the applicable law and its weight in comparison to the factual questions to be decided; (f) geographical factors suggesting the natural forum; (g) whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage in the domestic court; and (h) the existence of a default judgment in the competing forum.[^26]
[52] The factors are not exhaustive and the weight to be given any factor is a matter of the exercise of the court’s discretion, which is guided by the principles that: (a) the threshold for displacing the plaintiff’s choice is high and the existence of a more appropriate forum must be clearly demonstrated; (b) the court should consider and balance the efficiency and convenience of a particular forum with the fairness and justice of that choice to the parties; and (c) the court should adopt a cautious approach to fact-finding particularly with respect to matters that are at the heart of the lawsuit and the assessment of the factors should be based on the plaintiff’s claim if it has a reasonable basis in the record.[^27]
[53] With this background about the law and turning to the immediate case, there is very little connecting the dispute between Purolator and Teamsters Union Local 31 apart from the fact that the Collective Agreement was signed with the Respondent Canada Council of Teamsters, which has its office in Toronto.
[54] However, the Canada Council of Teamster has not been involved in the arbitration in British Columbia and typically the Canada Council is not involved in the grievance affairs of the local union.
[55] Teamsters Union Local 31 and the Arbitrator are in British Columbia. Purolator, which has workplaces across the country and which before Arbitrator Wilson’s Award, was quite prepared to attend to grievances in at least three provinces, agreed, i.e., attorned to the arbitration being conducted in British Columbia. Grievance disputes about the national Collective Agreement are typically resolved locally. The immediate Application in Ontario appears to be forum shopping for some unknown reason. Ultimately, the application is about labour relations in British Columbia, which does not have to be the same as labour relations in Ontario.
[56] The parties and witnesses are in British Columbia. In this regard, it should be noted that the dispute is not just about the reasonableness of the Covid-19 policy, it is also about how the policy was applied in British Columbia. The dispute is also about how the science has changed since the policy was introduced. The location of the key witnesses and evidence is in British Columbia.
[57] Any presumptive connection and any notion that British Columbia is not the more convenient forum is overborne by the above circumstances.
[58] I conclude that the Divisional Court does not have jurisdiction simpliciter and in any event Ontario is forum non conveniens.
E. Conclusion
[59] For the above reasons, the motion and the application are dismissed.
[60] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Teamsters Local Union 31 within twenty days of the release of these Reasons for Decision, followed by Purolator’s submissions within a further twenty days.
Perell, J.
Released: September 1, 2022
Purolator Canada Inc. v. Canada Council of Teamsters et al. 2022 ONSC 5009
COURT FILE NO.: 414/22
DATE: 2022/09/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PUROLATOR CANADA INC.
Applicant
- and –
CANADA COUNCIL OF TEAMSTERS, TEAMSTERS LOCAL UNION NO. 31 and ARBITRATOR NICHOLAS GLASS
Respondents
REASONS FOR DECISION
PERELL J.
Released: September 1, 2022
[^1]: RSC 1985, c. L-2.
[^2]: R.S.C. 1985, c. H-6.
[^3]: Roy v. Hackett (1987), 1987 CanLII 4212 (ON CA), 62 O.R. (2d) 365 (C.A.)
[^4]: Club Resorts Ltd. v. Van Breda, 2012 SCC 17.
[^5]: 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. See also: Dole Food Co. v. Nabisco Ltd. (2000), 2000 CanLII 16330 (FC), 8 C.P.R. (4th) 461 (Fed. Ct.); Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.).
[^6]: Sodexo Canada Limited v. Hotel Employees and Restaurant Employees International Union, Local 779, 2019 NLSC 192; Toronto Police Services Board v. Briggs, 2017 ONSC 1591 (Div Ct); Calgary (City) v. Alberta (Human Rights & Citizenship Commission), 2011 ABCA 65; Muskwachees Ambulance Authority Ltd. v. Canadian Union of Public Employees, Local 3197, 2007 ABQB 670; Access Health Care Services v. ONA, [2005] O.J. No. 5470 (S.C.J.).
[^7]: Minott v. O’Shanter Development Co., 1999 CanLII 3686 (ON CA), [1999] 42 O.R. (3d) 321 (C.A.); Angle v. Minister of National Revenue (1974), 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544 (S.C.C.)
[^8]: Shoan v. Canada (Attorney General), 2016 FC 1031; RJR Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.
[^9]: Muskwachees Ambulance Authority Ltd. v. Canadian Union of Public Employees, Local 3197, 2007 ABQB 670; Universal Settlements Inc. v. Ontario (Securities Commission) (2003), 2003 CanLII 31688 (ON SCDC), 170 OAC 24; Quadrini v. Canada Revenue Agency, [2010] CAF 47; Suresh v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 8393 (FCA), [1999] 4 FC 206.
[^10]: International Corona Resources Ltd. v Lac Minerals Ltd., [1986] O.J. No. 2128 (C.A. In Chambers).
[^11]: Audio Visual Services (Canada) Corporation v Ontario Labour Relations Board, 2019 ONSC 1167 (Div. Ct.); National Waste Services Inc. v. National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) (2009) 2009 CanLII 58584 (ON SCDC), 258 OAC 45 (Div. Ct.).
[^12]: Canada Labour Code, R.S.C. 1985, c L-2, ss 60-61.
[^13]: Courts are very reluctant to interfere with interlocutory matters in administrative proceedings and generally judicial review comes after a decision on the merits: Herbert v Canada (Attorney General), 2022 FCA 11; Dugré v Canada (Attorney General), 2021 FCA 8; Awada v Allstate, 2021 ONSC 8108; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 Cooney Bulk Sales Limited v Teamsters Local Union No. 91, 2017 ONSC 3651, Wong, Singh v Canada (Public Safety and Emergency Preparedness), 2017 FC 683; Windsor-Essex CAS v CUPE, Local 2286.1, 2016 ONSC 6482; Canadian Nuclear Laboratories v. IUOE, Local 772, 2015 ONSC 3436; University of Toronto; Attorney General for Ontario v Ontario Secondary School Teachers’ Federation and York District School Board, 2015 ONSC 2438; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 1 Wong v The Globe & Mail, 2013 ONSC 2993; Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541; University of Toronto v. CUEW, Local 2, 1988 CanLII 4757 (ON SC); Ontario College of Art v Ontario (Human Rights Commission), 1993 CanLII 3430 (Ont. SC).
[^14]: Canada (Attorney General) v. Telezone Inc., 2008 ONCA 892 (C.A.), aff’d 2010 SCC 62; R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para. 101, aff’g (sub nom. Van Breda v. Village Resorts Ltd.), 2010 ONCA 84, aff’g 2008 CanLII 32309 (ON SC), [2008] O.J. No. 2624 (S.C.J.).
[^15]: Young v. Tyco International of Canada Ltd. (2008) 2008 ONCA 709, 92 O.R. (3d) 161 (C.A.).
[^16]: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para. 101.
[^17]: Club Resorts Ltd. v. Van Breda, 2012 SCC 17; Muscutt v. Courcelles (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20 (C.A.).
[^18]: Haaretz.com v. Goldhar, 2018 SCC 28 at paras. 26–32; Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para. 26.
[^19]: 2012 SCC 17.
[^20]: Haaretz.com v. Goldhar, 2018 SCC 28 at para. 40; Éditions Écosociété Inc. v. Banro Corp. 2012 SCC 18; Club Resorts Ltd. v. Van Breda, 2012 SCC 17.
[^21]: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 at paras. 25–27; Forsythe v. Westfall, 2015 ONCA 810 at paras. 48–50, leave to appeal refused [2015] S.C.C.A. No. 460; Club Resorts Ltd. v. Van Breda, 2012 SCC 17.
[^22]: Leone v. Scaffidi, 2013 ONSC 1849; Club Resorts Ltd. v. Van Breda), 2012 SCC 17 at paras. 86–88.
[^23]: Bonaventure Systems Inc. v. Royal Bank (1986), 1986 CanLII 2550 (ON SC), 57 O.R. (2d) 270 (Div. Ct.).
[^24]: Frymer v. Brettschneider (1994), 1994 CanLII 1685 (ON CA), 19 O.R. (3d) 60 (C.A.), aff’g (1992), 1992 CanLII 7410 (ON SC), 10 O.R. (3d) 157 (Gen. Div.).
[^25]: Goldhar v. Haaretz.com, 2018 SCC 28; Breeden v. Black, 2012 SCC 19 at para. 23.
[^26]: Amtim Capital Inc. v. Appliance Recycling Centers of America, 2012 ONCA 664.
[^27]: Parque Industrial Avante Monterrey, S.A. de C.V. v. 1147048 Ontario Ltd., 2016 ONSC 6004; Orthoarm Inc. v. American Orthodontics Corp., 2015 ONSC 1880; Legge v. Young, 2015 ONSC 775; Silvestri v. Hardy, 2009 ONCA 400; Young v. Tyco International of Canada Ltd. (2008), 2008 ONCA 709, 92 O.R. (3d) 161 (C.A.); Tisi v. Cornell Trading Inc., 2006 CanLII 29665 (ON SC), [2006] O.J. No. 3468 (S.C.J.); Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 2003 CanLII 52135 (ON CA), 63 O.R. (3d) 431 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 186; Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897; Hunt v. T&N plc, 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289; Antares Shipping Corp. v. Capricorn (The), 1976 CanLII 5 (SCC), [1977] 2 S.C.R. 422.