Steven M. Barrett

The appellant appealed the dismissal of a motion to certify a class action on behalf of CIBC customer service employees for unpaid overtime.

The motion judge and Divisional Court had found it plain and obvious that CIBC's policy requiring pre-approval for overtime complied with the Canada Labour Code, and that individual issues predominated.

The Court of Appeal allowed the appeal, holding that it was arguable the pre-approval requirement violated the Code's mandate to pay for overtime 'required or permitted' by the employer.

The Court also found some basis in fact that CIBC's systemic practices breached employment contracts, satisfying the common issues requirement for certification.

The representative plaintiff brought a proposed class action against the defendant bank for unpaid overtime, alleging breach of contract, unjust enrichment, and negligence due to systemic policies requiring pre-approval for overtime and inadequate record-keeping.

The motion judge certified the action, and the Divisional Court upheld the certification.

On appeal, the Court of Appeal upheld the certification of most common issues and agreed that a class proceeding was the preferable procedure.

However, the Court allowed the appeal in part, striking the common issue regarding the aggregate assessment of damages under s. 24(1) of the Class Proceedings Act, finding that damages could not reasonably be calculated without proof by individual class members.

The appellant, Friends of Lansdowne Inc., appealed the dismissal of its application to quash a City of Ottawa by-law approving a public-private partnership for the redevelopment of Lansdowne Park.

The appellant argued the by-law provided an illegal bonus to the developer, breached procurement rules, and was passed in bad faith.

The Court of Appeal dismissed the appeal, finding that the development plan, viewed as a whole, did not confer an obvious advantage or illegal bonus.

The Court also held that any breach of procurement policies was a technical irregularity that did not vitiate the by-law, and the appellant failed to establish bad faith by the City Council.

The appellant, a bank employee, sought to certify a class action against the respondent bank for systemic unpaid overtime.

The motion judge dismissed the certification motion, finding no common issues that would advance the litigation and that the bank's overtime policy requiring pre-approval was lawful under the Canada Labour Code.

The motion judge also awarded $525,000 in costs to the respondent.

The Divisional Court dismissed the appeal, upholding the motion judge's findings that the claims required individual assessments and that the costs award was reasonable.

During a bitter strike at the Giant Mine, a striking miner evaded security, entered the mine, and planted a bomb that killed nine replacement miners.

The surviving family members and a first responder sued the mine's security firm, the territorial government, and the national union in negligence.

The Supreme Court of Canada held that while the security firm and the government owed a duty of care to the miners, they did not breach the standard of care.

The Court also held that the national union and local union were separate legal entities, and the national union was not directly or vicariously liable for the criminal acts of the striking members.

The appeals were dismissed.

The applicant sought judicial review of an arbitrator's preliminary ruling that section 54 of the Labour Relations Act applies to all collective agreements in Ontario.

The arbitrator had not yet decided the ultimate question of whether mandatory retirement prior to amendments to the Human Rights Code was unlawful.

The Divisional Court quashed the application as premature, emphasizing that courts should not entertain applications prior to the completion of proceedings to avoid fragmented proceedings and unnecessary delay.

The arbitrator must rule on all issues before judicial review is appropriate.

The respondent was denied workers' compensation benefits by the Workplace Safety and Insurance Appeals Tribunal, which found no causal link between his 1979 workplace back injury and his current back problems.

The Divisional Court allowed the respondent's application for judicial review, finding the Tribunal's decision patently unreasonable.

The Tribunal appealed.

Applying the newly established Dunsmuir standard of reasonableness, the Court of Appeal allowed the appeal and reinstated the Tribunal's decision, holding that the Divisional Court erred by reweighing the evidence and that the Tribunal's factual findings were supported by the record and entitled to deference.

The appellants challenged the constitutionality of the investor-state arbitration mechanism in Chapter 11 of the North American Free Trade Agreement (NAFTA), arguing it violated s. 96 of the Constitution Act, 1867, judicial independence, the rule of law, and the Charter.

The Court of Appeal dismissed the appeal, finding that NAFTA tribunals do not exercise powers analogous to those of superior courts at Confederation, nor do they remove core jurisdiction from domestic courts.

The court also held that the tribunals do not violate judicial independence or the rule of law, and that the Charter challenge was premature as it was based on speculative harm rather than a specific tribunal decision.

The union filed six grievances relating to the evaluation of benchmark jobs under the parties' job evaluation system, seeking to have the Grievance Settlement Board resolve the valuation of disputed sub-factors.

The employer raised a preliminary objection, arguing the Board lacked jurisdiction under section 51 of the Crown Employees Collective Bargaining Act (CECBA), which prohibits the Board from altering an existing classification.

The Board upheld the preliminary objection, finding that determining the appropriate point level for sub-factors would effectively alter the classification of the jobs, which it is statutorily prohibited from doing.

The grievances were dismissed for lack of jurisdiction.

The Supreme Court of Canada heard multiple appeals from New Brunswick, Ontario, Alberta, and Quebec regarding the constitutional requirement for independent judicial compensation commissions.

The Court clarified the principles from the Provincial Judges Reference, establishing a three-stage analysis for determining whether a government's response to a commission's recommendations meets the standard of rationality.

The Court upheld the government responses in New Brunswick and Ontario, found the Alberta government's response partially irrational but globally effective, and struck down the Quebec government's response for failing to address the committee's core recommendations.

The Union filed a policy grievance arguing that under the collective agreement and the Employment Standards Act, 2000, an employee is entitled to split their parental leave into multiple periods, provided the total does not exceed the maximum statutory entitlement.

The Employer maintained that parental leave must be taken in one continuous period and is exhausted once the employee returns to work.

The Grievance Settlement Board dismissed the grievance, finding that the statutory language and scheme of the ESA contemplate a single, continuous parental leave of absence.

Consequently, an employee who returns to work before exhausting their full entitlement cannot take a second period of parental leave with top-up benefits.

In supplementary reasons, the Divisional Court amended its previous ruling on costs at the request of the respondents.

The court deleted the original paragraph regarding costs and substituted a new paragraph directing all counsel to address the court in writing on whether costs should be assessed or fixed, and if fixed, the quantum of such costs.

The applicants had filed a bill of costs seeking partial indemnity costs of $308,926.84.

The Government of Ontario applied for judicial review of the Fifth Triennial Report of the Provincial Judges Remuneration Commission, which recommended a 21% salary increase for provincial judges.

The Ontario Conference of Judges brought a separate application for an order in the nature of mandamus requiring the Government to implement the recommendations.

The Divisional Court held that while the Commission's recommendations are subject to judicial review on a standard of patent unreasonableness, the Government's application must be dismissed due to its failure to exhaust internal reconsideration remedies under the Framework Agreement and its excessive delay in bringing the application.

The court granted the Ontario Conference of Judges' application and ordered the Government to implement the recommendations retroactively.

The applicants, who were social assistance recipients, brought a Charter challenge against a 'lifetime ban' on benefits imposed after convictions related to their benefits.

Before the hearing, a newly elected government repealed the regulations, and the parties settled all issues except costs.

The applicants sought their costs on a public interest basis.

The Divisional Court (majority) awarded the applicants partial indemnity costs of $308,926.84, finding that the litigation was meritorious, the issues were of public importance, and the applicants could not have proceeded without pro bono counsel.

A dissenting judge would have made no order as to costs.

The appellants, representing Ontario provincial court judges, appealed the dismissal of their application for judicial review of the provincial government's decision to reject the recommendations of the Fourth Triennial Provincial Judges' Remuneration Commission regarding judicial pensions.

The government had accepted binding salary recommendations but rejected the non-binding pension enhancements, citing fiscal restraint and the fact that the 28% salary increase already significantly increased pension values.

The Court of Appeal dismissed the appeal, holding that the government's post-report retention of an actuarial firm to cost the proposals was appropriate, and that the government's reasons for rejecting the pension recommendations met the 'simple rationality' standard established by the Supreme Court of Canada in the P.E.I. Reference.

The applicants sought an interim order restraining the Minister of Health from approving plans for the involvement of for-profit corporations in the design or operation of two hospitals, pending the adjournment of their application for judicial review.

The Divisional Court dismissed the motion, finding that the applicants failed to establish a strong prima facie case that the projects would breach the Public Hospitals Act, and failed to show irreparable harm if the interim order was not granted.

The Minister of Labour appointed retired judges to chair compulsory arbitration boards for hospital and nursing home labour disputes under s. 6(5) of the Hospital Labour Disputes Arbitration Act.

The unions challenged the appointments, arguing the Minister was required to select arbitrators from a mutually agreed roster and that retired judges lacked labour relations expertise and independence.

The Supreme Court of Canada held that while the Minister was not restricted to a specific roster and retired judges as a class were not biased, the Minister's appointments were patently unreasonable because he expressly excluded the relevant criteria of labour relations expertise and broad acceptability within the labour relations community, which were essential to the legislative scheme.

The union filed a grievance concerning the entitlement of surplus employees to retire with an actuarially unreduced pension upon reaching 'Factor 80'.

The issue was whether an employee who receives a notice of layoff by March 31, 2004, but does not reach Factor 80 until a later date, is entitled to 'bridge' to Factor 80 using unpaid leave.

The Grievance Settlement Board held that there was nothing in the collective agreement indicating that surplus employees seeking to bridge to Factor 80 should be treated differently from those bridging to Factor 90 or 60/20.

The grievance was allowed, permitting employees to use the pension bridging option to reach Surplus Factor 80 after March 31, 2004.

The applicant employer sought judicial review of an arbitrator's decision reinstating an employee who was terminated for excessive innocent absenteeism under an attendance management system.

The arbitrator found that the termination violated the Human Rights Code because the absences relied upon included a compensable workplace injury, and the employer failed to show undue hardship in accommodating the employee.

The Divisional Court dismissed the application, upholding the arbitrator's decision and finding no error in the arbitrator's application of human rights principles regarding the duty to accommodate.

The respondent brought a motion to dismiss the applicants' judicial review application for delay.

The Divisional Court acknowledged substantial delay but found the applicants' unchallenged explanations supported permitting the matter to continue.

The court noted the respondent had not demonstrated prejudice and had taken no prior steps to address the delay.

The motion to dismiss was denied, and the court directed the matter to proceed on the merits.