Sean McGee

The applicant union sought judicial review of an arbitration award that upheld the employer's random drug testing policy for safety-sensitive positions at the airport.

The Divisional Court found the arbitrator's decision unreasonable because it departed from established arbitral jurisprudence without justification.

Specifically, the arbitrator upheld the policy without any evidence of a workplace drug problem at the airport, relying instead on evidence from a different case involving a different workplace.

The application for judicial review was granted, the award was set aside, and the grievance was remitted to a new arbitrator.

The plaintiff sought leave to make further submissions on whether he was required to pay the standard 13% HST on a costs award or only the net HST the defendant would pay after receiving credits under the Excise Tax Act.

The court held that it was functus officio, as the original costs decision was final and the issue of HST credits was a new issue, not a clerical error or accidental omission.

The fact that the order had not yet been entered did not permit the court to vary its decision.

Following the dismissal of the plaintiff's $1.8 million claim regarding pension benefits, the successful defendant sought costs of over $900,000.

The plaintiff argued the costs were excessive and that the defendant's joint offer to settle did not trigger substantial indemnity costs because the co-defendant had settled via a Pierringer Agreement.

The court agreed that substantial indemnity costs were not warranted but awarded partial indemnity costs of $425,000 plus HST and disbursements, finding the time spent reasonable given the complexity and the plaintiff's evasive conduct during discoveries.

The plaintiff, a former Vice President of Human Resources, sued his former employer for breach of a verbal contract and negligent misrepresentation regarding his pension benefits.

He alleged the employer's former president verbally agreed to pay all costs to transfer his previous pensionable service to the employer's Supplementary Pension Plan, or alternatively, to set up a fund to cover the difference.

He also claimed he relied on an erroneous pension estimate provided by a subordinate when deciding to retire.

The Superior Court of Justice dismissed the action, finding the plaintiff failed to prove the alleged verbal agreement and that it was unreasonable for him, given his expertise and knowledge of the pension plan's restrictions, to rely on the subordinate's inaccurate estimate.

The applicant sought judicial review of an arbitration award that dismissed a grievance concerning the employer's refusal to pay a bilingual bonus to part-time indeterminate employees working temporarily in bilingual positions.

The Divisional Court applied the reasonableness standard of review.

The Court found that the arbitrator's reliance on past practice and the specific wording of the collective agreement regarding the bilingual bonus was reasonable.

The application for judicial review was dismissed with costs awarded to the employer.

The plaintiffs (taxicab drivers and their union) sought an interlocutory injunction against Uber drivers to enforce a City by-law, which was denied.

This endorsement addresses the costs of that unsuccessful injunction motion.

The court awarded partial indemnity costs of $60,000 plus HST and disbursements to the successful Uber drivers, payable forthwith, considering the complexity and importance of the matter, the intense work required to respond to an injunction, and the applicants' sophistication.

The moving party university brought a motion to set aside a decision of a single judge of the Divisional Court who refused to strike an affidavit filed by the responding party association on an application for judicial review of a labour arbitration award.

The arbitration upheld the termination of a professor for failing to grade students objectively.

The Divisional Court panel found that the motions judge erred in law by admitting the affidavit, as it did not meet the narrow Keeprite exception for admitting new evidence on judicial review.

The motion was granted and the affidavit was struck in its entirety.

Licensed taxicab drivers and their union brought a motion for an interlocutory injunction to restrain Uber drivers from operating in Ottawa, alleging breaches of the City's taxi by-law and various economic torts.

The court found that while one taxicab driver had standing as a ratepayer and there was a serious issue to be tried, the plaintiffs failed to establish irreparable harm, as their alleged economic losses could be quantified in monetary terms.

Furthermore, the balance of convenience did not favour an injunction, given the plaintiffs' delay, their private financial interest, and the City's pending policy review of ridesharing services.

The motion for an injunction was dismissed.

Following a motion in a labour dispute concerning airport picketing activity, the court addressed the issue of costs.

The moving parties sought relief relating to noise-making during picketing or relocation of picketers closer to airport entrances, but the motion was largely unsuccessful.

Although the court vacated certain trespass notices and relocated the picketers to a more visible area, it found that the plaintiff achieved the more favourable result and incurred significant costs responding to the motion.

The court was particularly critical of false statements made in an affidavit by one of the moving parties, which required cross-examination and additional evidence to refute.

Costs were awarded to the plaintiff on a partial indemnity basis.

The respondent union sought judicial review of a labour arbitration award that partially upheld the dismissal of a tenured university professor.

On an interim motion, the university asked the court to exclude an affidavit from counsel who had attended the arbitration hearing, arguing the material was inadmissible on judicial review.

Applying the principles from Keeprite and subsequent authority, the court held that affidavit evidence may be admitted in rare circumstances to demonstrate a complete absence of evidence on an essential point or a breach of natural justice.

Given the absence of a formal record of the arbitration proceedings and concerns regarding reliance on a disputed report, the court found the case fell within the exceptional category.

The affidavit evidence was permitted to be considered by the Divisional Court on the judicial review.

Union members subject to an injunction restricting protest activity at an international airport brought a motion to clarify or vary the existing order.

The dispute concerned whether drumming and other loud noise-making during picketing violated the injunction and whether trespass notices issued to certain union members were valid.

The court found the noise created a nuisance interfering with airport operations and safety obligations, particularly the ability to communicate during emergencies.

The injunction was varied to relocate picketers to a designated grassy area near the parkade and to prohibit the use of drums, improvised percussive devices, or amplification devices on airport premises.

Trespass notices issued to several individuals were ordered withdrawn.

The applicant, a teacher whose employment was terminated after unsatisfactory performance evaluations, sought judicial review of several decisions by the Human Rights Tribunal of Ontario (HRTO).

The HRTO had dismissed his numerous complaints against his former employer, his union, various legal counsel, and several administrative bodies, finding no evidence of discrimination based on race or colour.

The HRTO also declared him a vexatious litigant.

The Divisional Court applied the reasonableness standard of review and found no error in the HRTO's decisions, noting that the applicant failed to establish any link between his dismissal or the subsequent administrative decisions and a prohibited ground of discrimination.

The application for judicial review was dismissed.

Dans cette motion interlocutoire, la partie requérante demandait principalement la radiation de la déclaration en raison d’un manquement à un engagement de conserver des courriels produits lors de l’enquête préalable, ou subsidiairement des ordonnances de préservation documentaire.

Le tribunal a conclu que le manquement résultait vraisemblablement de l’inattention ou de l’inadvertance plutôt que d’une inconduite intentionnelle, et a refusé la réparation draconienne sollicitée.

Compte tenu de la complexité de l’action relative à un déficit allégué dans un régime de retraite et de l’étendue temporelle des faits, le tribunal a néanmoins ordonné la conservation et la communication aux fins d’examen de comptes courriel pertinents et a prolongé l’enquête préalable à un total de vingt‑quatre heures.

Le succès ayant été mitigé, le tribunal s’est dit fortement enclin à n’adjuger aucuns dépens.

In a decision on remedy following a finding of liability, the Tribunal addressed calculation issues regarding the applicant's wage loss and pension.

The Tribunal found it was not functus officio on the calculation of the tax gross-up and deemed mitigation, as these were not previously disputed.

The Tribunal held that the deemed mitigation deduction should be based on the applicant's regular 35-hour work week rather than a 40-hour week.

The issue of overtime entitlement was dismissed as previously determined.

The Tribunal remained seized of the outstanding pension contribution issues.

Following a finding that the respondent employer failed to accommodate the applicant's return to work after an injury, the Tribunal determined the appropriate remedies.

The Tribunal awarded lost wages from the date the applicant should have been returned to work until his retirement date, deducting WSIA benefits received during that period.

Claims for lost overtime were dismissed as speculative, while agreed-upon sick leave gratuities were awarded.

The Tribunal also awarded $15,000 for injury to dignity, feelings, and self-respect, noting the emotional impact of effectively losing a 16-year career due to the respondent's discriminatory conduct.

The applicant, a former teacher, filed multiple human rights applications against his former employer, his union, the union's legal counsel, his own legal counsel, and the Ontario College of Teachers, alleging discrimination on the basis of race, colour, and reprisal.

The Tribunal held a summary hearing to determine whether the applications should be dismissed for delay or for having no reasonable prospect of success.

The Tribunal dismissed the applications against the employer because they were filed beyond the one-year time limit under section 34 of the Human Rights Code and the applicant failed to provide a good faith explanation for the delay.

The Tribunal dismissed the remaining applications against the union, the legal counsel, and the College of Teachers, finding no reasonable prospect that the applicant could establish a link between the respondents' actions and a prohibited ground of discrimination.

The Tribunal also denied the employer's request for an order requiring the applicant to return confidential documents, noting it lacked general injunctive powers.

The Ontario College of Teachers appealed a committee decision ordering the reinstatement of a teacher who had resigned after a sexual relationship with an 18-year-old student.

The College sought to introduce fresh evidence regarding the qualifications of the teacher's social worker and argued the committee's decision was unreasonable and lacked sufficient reasons.

The Divisional Court dismissed the appeal, finding the fresh evidence did not meet the Palmer test, the committee's decision was reasonable based on the evidence, and the reasons provided were adequate.

The defendant employer brought a motion for leave to appeal an order refusing to strike out the statement of claim against it.

The employer argued that at common law, an employer cannot be impleaded by an employee seeking a remedy for their union's breach of the duty of fair representation.

The court dismissed the motion, holding that the common law is dynamic and a plaintiff should not be denied the possibility of establishing a right to a remedy at the pleadings stage.

The Member, a registered nurse, admitted to engaging in a sexual relationship with a psychiatric patient while employed at a hospital.

The Discipline Committee found the Member committed professional misconduct by sexually abusing the patient and violating professional boundaries.

The Member brought a Charter challenge, arguing that the mandatory revocation penalty discriminated against her on the basis of a mental disability.

The panel dismissed the Charter challenge, finding insufficient evidence that the Member suffered from a mental disability that affected her functioning at the time of the misconduct.

The panel ordered the mandatory penalty of revocation of the Member's certificate of registration and a reprimand.

The Ontario College of Teachers brought disciplinary proceedings against a member who pleaded guilty to criminal mischief and deliberately lied to his employer regarding his innocence.

The member had made a false insurance claim for items hidden in his garage prior to a fire at his home, and falsely reported a break and enter to the police.

The Discipline Committee found the member guilty of professional misconduct, concluding that his actions contravened the Education Act and constituted disgraceful, dishonourable, and unbecoming conduct.

The Committee ordered the member's Certificates of Qualification and Registration suspended for 24 months.