Susan Ursel

In CCAA proceedings involving a major Canadian retailer in insolvency, Employee Representative Counsel brought a motion to approve a Hardship Programs Term Sheet providing three programs to alleviate hardships for vulnerable non-unionized former employees: a Trust Program extending and settling long-term disability benefits for approximately 157 former employees funded through a pre-existing trust, a Woodwards Replacement Policy funded through a company reserve fund, and an Employee Hardship Program funded by $250,000 in foregone secured lender payments.

The court approved the Term Sheet as fair, reasonable, beneficial to stakeholders, and consistent with the purpose and spirit of the CCAA.

Ancillary relief including releases, declaratory relief characterizing Employee Hardship Fund payments as non-earnings for EI purposes, and a sealing order protecting personal information of LTD recipients and trustees were also granted.

An unsupported objection by one individual was dismissed as lacking credible basis.

The appellant sought to uphold a provincial spending limit restricting third party political advertising to $600,000 in the year before a fixed-date election, while political parties faced no limits in the first six months of that period.

The majority held that the spending limit infringes s. 3 of the Charter by creating an absolute disproportionality in the political discourse, allowing political parties to drown out third party voices during a critical democratic period.

The majority further held the limit could not be saved under s. 1 as it failed the minimal impairment stage.

Two sets of dissenting judges would have allowed the appeal, finding the limit did not infringe s. 3 of the Charter on the evidentiary record, with the dissenters disagreeing on whether an expressive component exists within s. 3.

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

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.

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.

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.

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 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.

Two related class proceedings alleged that employees transferred from municipal home‑care providers to Community Care Access Centres suffered pension losses when their OMERS or VON pensions were replaced with HOOPP after a government restructuring of home‑care services.

The plaintiffs advanced claims for negligent misrepresentation and breach of contractual undertaking against the province.

Following mediation and negotiations, the parties reached a settlement providing $6.5 million for class members, along with amounts for class counsel fees and administration.

The court reviewed the settlement under s. 29 of the Class Proceedings Act, 1992 and considered the risks of establishing liability and damages, the complexity of actuarial loss calculations, and the absence of objections from class members.

The settlement and proposed class counsel fees were found to fall within a reasonable range and to be in the best interests of the class.

A school board sought court approval of a proposed methodology to distribute approximately $1.7 million received following the windup of a group insurance trust.

The plan allocated a portion to future benefit premium reserves and distributed the remainder to non‑union employees enrolled in the insurance policies as of June 30, 2006, using a banding system based on years of participation.

An objector representing former employees argued that excluding individuals who ceased enrollment before that date was unreasonable because they had contributed premiums to the trust.

The court held that the board had broad discretion under the court‑approved trust windup terms and that basing distribution on enrollment as of June 30, 2006 was rational because that same metric determined the board’s share of the surplus.

The court also found it reasonable to consider administrative costs and data limitations in designing the methodology.

The proposed distribution methodology was approved.