Susan M. Ursel

The applicants challenged the constitutionality of amendments to the Election Finances Act that imposed a 12-month pre-writ restricted spending period for third-party political advertising.

The government had previously enacted similar amendments that were struck down under section 2(b) of the Charter, but re-enacted them using the section 33 notwithstanding clause.

The applicants argued the amendments violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.

The court dismissed the application, finding that the spending limits were carefully tailored to the egalitarian model of elections and did not infringe the right to meaningful participation in the electoral process.

This was a costs endorsement following a successful constitutional application challenging provisions of election finance legislation under s. 2(b) of the Charter.

The court held that partial indemnity remained the appropriate scale because the respondent government's conduct was professional and did not justify substantial or full indemnity costs.

In fixing a fair overall award, the court emphasized that four applicant groups had advanced identical legal challenges in a consolidated proceeding, and that economies of scale had to be reflected in the result.

The court reduced the aggregate request from approximately $690,000 to $500,000 and apportioned that amount among the successful applicants.

No costs were awarded for or against the Chief Electoral Officer or the intervenor.

The applicants challenged the constitutionality of amendments to the Election Finances Act that extended the pre-election restricted spending period for third-party political advertising from six to twelve months.

The court found that the 12-month restriction infringed freedom of expression under section 2(b) of the Charter.

Applying the Oakes test, the court held that while the objective of fostering fair elections was pressing and substantial, the 12-month period failed the minimal impairment test because the government's own experts indicated a six-month period was effective.

The impugned provisions were declared of no force or effect.

The applicants in a constitutional application requested leave to file factums exceeding the 30-page limit prescribed by the Practice Direction.

The Attorney General opposed the request.

The court denied the request, emphasizing that the 30-page limit is a serious policy intended to focus counsel on the issues, and that leave is exceptional and granted sparingly.

The court noted that since there was still a week before the factums were due, counsel had sufficient time to produce shorter, more focused versions.

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.

The union filed a policy grievance alleging that provisions in the collective agreement requiring employees on Long Term Income Protection (LTIP) with 30 years of pension credit to pay their own pension contributions discriminated on the basis of age.

The arbitrator found that the provisions resulted in adverse effect discrimination, as only older employees could accumulate 30 years of pension credit.

The employer failed to justify the discrimination as a bona fide occupational requirement or under section 1 of the Charter, as the sole objective was cost savings.

The impugned provisions were struck from the collective agreement.

Following an order to merge two local unions into a larger local, the former locals attempted to amend their trust and building corporation documents to distribute assets pro rata to their members rather than transferring them to the merged local.

The court found these actions were taken without authorization, violated the union's constitution, and constituted a breach of fiduciary duty by the trustees and directors.

The court declared the amendments null and void, imposed a constructive trust, and ordered the assets transferred to the merged local.

In the context of CCAA proceedings for Sears Canada Inc., the Employee Representative Counsel sought an order for directions regarding the distribution of an approximately $850,000 Deposit Fund Surplus, which resulted from the termination of employee life insurance coverage provided by Sun Life.

The counsel argued that Sears acted as an agent for its employees in remitting insurance premiums, and therefore, the portion of the surplus attributable to employee contributions should be returned to them pro rata.

The Monitor opposed, contending that Sears had a contractual entitlement to the surplus under the financial letter of agreement with Sun Life and that no agency or fiduciary relationship existed.

The court found that an agency relationship was established when employees permitted Sears to deduct and remit premiums on their behalf, preventing Sears from unjustly enriching itself by retaining the surplus.

The court ordered the Monitor to distribute the relevant percentage of the surplus to the participating employees.

The applicant union filed complaints alleging the respondent school board failed to negotiate an amended pay equity plan in good faith and failed to maintain pay equity after the male comparator job classes were eliminated.

The Tribunal found that the parties' conduct demonstrated a shared view that the original pay equity plans were no longer appropriate due to changed circumstances.

The Tribunal concluded the school board violated its duty to bargain in good faith by raising inauthentic process concerns late in the joint job evaluation process to avoid the financial costs of pay equity adjustments.

The parties were ordered to resume negotiations based on the joint committee's ratings.

Oxford Properties Group brought a motion seeking the appointment of a specific arbitrator to determine the current value of the Newmarket Property under an option agreement.

Sears Canada Inc. and its Monitor brought a cross-motion requesting the appointment of a different arbitrator, who was already acting as a Claims Officer in the CCAA proceedings, to determine both the property's value and Oxford's related disputed claims.

The court found the issues to be inextricably linked and that separate proceedings would lead to additional cost and delay.

The court granted the cross-motion, appointing the arbitrator proposed by Sears and the Monitor to resolve all outstanding issues related to the property in a single, consolidated proceeding, thereby dismissing Oxford's motion.

The Applicants, under CCAA protection, brought a motion seeking an order to authorize and approve the Revised Fourth DIP Amendment.

The motion was opposed by the USW and GIP.

The court granted the motion, finding that the DIP solicitation process was competitive, robust, and fair, and that the Revised Fourth DIP Amendment was the best available proposal.

The amendment addressed previous concerns by providing a maturity date past the winter build period, a sufficient commitment amount, and minimal conditions on covenants.

The Applicants, a group of Essar Steel Algoma entities, brought two motions in their CCAA proceedings: (i) for approval of a DIP extension agreement with existing DIP lenders, and (ii) for the appointment of a restructuring committee.

The DIP extension was opposed by various stakeholders including the USW, retirees, and GIP Primus, LP, who argued against the short term and potential leverage of the existing DIP lenders who were also Term Lenders.

The court dismissed the DIP extension motion, finding it would not enhance the prospects of a viable restructuring outcome, citing concerns about the alignment of interests between DIP and Term Lenders and the short-term nature of the proposed extension.

The motion for a restructuring committee was also dismissed, as the court found it would create unnecessary overlap with the existing Chief Restructuring Advisor and would not effectively address the core issues preventing restructuring, primarily labour negotiations.

The applicants, a group of Essar Steel Algoma entities under CCAA protection, moved for court approval of a Term Sheet with Cliffs Mining Company for the supply of iron ore pellets.

The motion was opposed by USW Locals and Algoma retirees, who sought disclosure of commercial terms and objected to provisions preventing disclaimer of the agreement and allowing Cliffs to terminate if an Essar Global entity acquired Algoma.

The court approved the Term Sheet, finding it beneficial for Algoma's restructuring by ensuring a stable and technically suitable iron ore supply.

The court dismissed the objections, emphasizing the urgency of approval, the confidentiality of pricing, and that the Term Sheet's provisions did not unlawfully fetter judicial discretion under CCAA section 32 or unduly prejudice stakeholders.

The employer brought a motion to bifurcate the hearing of a union grievance concerning unilateral changes to post-retirement benefits.

The employer sought to have the Board first hear and determine its motion that the union had not made out a prima facie case for its contractual claims, based solely on the language of the collective agreement without extrinsic evidence.

The Grievance Settlement Board dismissed the motion for bifurcation, finding that the union was entitled to adduce extrinsic evidence to support its position that post-retirement benefits were implicitly incorporated into the collective agreement.

The Board concluded that bifurcation would not result in efficiency, as the issues were intertwined and a decision on the preliminary motion would not dispose of the entire grievance, and would be unfair to the union.

The applicant filed a human rights application alleging discrimination in employment.

The respondents requested a summary hearing.

The applicant sought an interim order for early production of his employment file to clarify his employment status before filing a Reply and Response to the summary hearing request.

The Tribunal denied the request, finding that early production was not necessary because the respondents had already disclosed the applicant's consulting contract and invoices, which provided the information sought.

The representative plaintiffs in two certified class actions brought a motion to complete the administration of the settlement, discharge the administrator, and approve a cy-près distribution of the remaining $5,373.74 to a charity.

The court granted the discharge but denied the cy-près distribution.

Applying the principle that cy-près should not be used when direct compensation is practicable, the court ordered the remaining funds to be distributed equally among six class members who had submitted late claims due to mail delivery failures.

The applicant filed a human rights application alleging discrimination on the basis of gender identity regarding the 20-month waiting period for a Gender Identity Clinic assessment required for OHIP funding of sex reassignment surgery.

The respondent requested a deferral of the application because the applicant had also appealed the denial of funding to the Health Services Appeal and Review Board (HSARB).

The Tribunal granted the deferral, finding that the HSARB proceeding and the application addressed the same issues and that proceeding concurrently could lead to inconsistent decisions.

The applicant, a secondary school teacher and Curriculum Leader, filed a human rights application alleging discrimination and reprisal by his colleagues and the school board based on his race, colour, ancestry, place of origin, and ethnic origin.

The applicant claimed he was subjected to a coordinated attack and a poisoned work environment.

After hearing the applicant's evidence in chief, the Tribunal dismissed the application, finding that while there was a serious workplace dispute, the applicant failed to establish a credible link between the adverse treatment he experienced and his identity.

The Tribunal concluded that the applicant's allegations were based on unreliable perceptions, assumptions, and speculations.

The successful applicant in a labour arbitration judicial review sought partial indemnity costs exceeding $30,000.

The Divisional Court found this amount excessive for a matter that was not overly complex.

The court fixed costs at $7,500, which it deemed to be within the accepted range for such proceedings.

The applicant union sought judicial review of a labour arbitration award that denied a grievor's claim for a pension after 31 years of continuous employment.

The majority of the arbitration board had found that the grievor waived his right to pension benefits and that the doctrine of laches barred the grievance.

The Divisional Court held that the arbitration board's decision was unreasonable.

The collective agreement and pension plan documents mandated enrollment for full-time employees and did not permit waiver.

Consequently, the employer bore the obligation to ensure enrollment, and the equitable defence of laches could not apply where waiver was legally impermissible.

The application was granted, the award quashed, and the matter remitted to the arbitration panel.