Court Of Appeal Summaries (June 13 – 17)

The Court of Appeal has released a variety of cases this week dealing with such topics as wrongful dismissal, bankruptcy and insolvency, pensions, real estate, and residential landlord and tenant. The most notable decision by far this week is the Groia v. The Law Society of Upper Canada decision in which the court dismissed the member's appeal from his conviction for professional misconduct. Apparently, according to the Toronto Star, Mr. Groia will be seeking leave to appeal to the Supreme Court of Canada, so this long-running saga is not over yet.

Civil Decisions

Brown v. University of Windsor, 2016 ONCA 431

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

Michael J. Kennedy, for the appellant

James A. Renaud and Matthew R. Todd, for the respondent

Keywords: Labour and Employment Law, Collective Agreements, Employment Insurance Act, Insurance Premium Reductions, Labour Relations Act, Jurisdiction, Weber v. Ontario Hydro, Parry Sound (District) Social Services Adinistratio Board v. OPSEU Local 324

Facts:

The respondent is president of his union and claims that his employer, the appellant, failed to provide him and other affected employees with employment insurance premium reductions that the appellant had received under the Employment Insurance Act ("EIA"). The appellant moved under r. 21.01(3)(a) of the Rules of Civil Procedure for an order dismissing the respondent's action on the basis that the court lacked jurisdiction to entertain the matter. The motion judge rejected the appellant's argument that exclusive jurisdiction lay with a labour arbitrator.

Issues:

Does s. 48(1) of the Labour Relations Act (the "LRA") require an arbitrator first to determine whether the dispute between the parties is arbitrable? Did the motion judge err by relying on the Hershey/Rathwell line of cases? Did the motion judge err by not applying the Supreme Court's decision in Parry Sound? Holding:

Appeal allowed.

Reasoning:

Firstly, this argument was not raised before the motion judge. Secondly, in an earlier case identical to the present, an arbitrator decided he did not have jurisdiction over the dispute. Thirdly, this action is old and it is therefore in the interest of both parties that the question of jurisdiction be resolved without additional delay. While the Hershey/Rathwell cases involved claims by unionized employees where the employer had failed to rebate to employees the statutorily required portion of the premium reduction under the Employment Insurance Premium Reduction Program, the previous courts did not determine the Weber issue that is raised in the present case. The Weber analysis requires that a dispute be decided by an arbitrator and not the courts if the "essential character" of the dispute arises either explicitly or implicitly from the interpretation, application, administration or violation of the collective agreement. The motion judge relied too heavily on the Hershey/Rathwell line of cases in conducting the Weber analysis and erred in his legal characterization of the dispute. Instead, the motion judge needed to decide whether the facts of the dispute fell within the ambit of the collective agreement.

The Court adopted the reasons in British Columbia Teacher's Federation v. British Columbia Public School Employers' Association as giving proper effect to the statute's provisions as interpreted by the Supreme Court in Parry Sound. Namely, the question is whether there is a real contextual connection between the statute and the collective agreement such that a violation of the statute gives rise to a violation of the provisions of the collection agreement. In applying this test, one must remember Weber's caution that the nature of the dispute is based upon the factual context in which it arises, regardless of how it may be legally characterized. The provisions at play in this case can be characterized as "employment-related" under s. 48(12)(j) of the LRA. Under the scheme of the EIA, the employer is obligated to remit to employees a specified share of the premium reduction. In turn, the employees are entitled to receive their specified share of the premium reduction in the form of cash or enhanced employee benefits. Their entitlement is a substantive right and informs the interpretation and application of the collective agreement. It is therefore a violation of the collective agreement to fail to provide employees with the pay or benefits to which they are entitled under the collective agreement. This is the "essential character"' of the dispute and, consequently, the employer's alleged violation of the statute would give rise to a violation of the provisions of the collective agreement.

Sickinger v. Krek, 2016 ONCA 459

[Hoy A.C.J.O., Blair and Roberts JJ.A]

Counsel: D. March, for the appellants D. J. Dacquisto and J. B. Tausenfreund, for the respondent

Keywords: Civil Procedure, Dismissal of Third Party Claim, Dissolved Corporation, Rules of Civil Procedure, RRO 1990, Reg 194, Business Corporations Act, R.S.O. 1990, c. B-16, s. 242(1)

Facts:

The appellant is a defendant in the main action that was commenced on August 14, 2000. The appellant brought a third party claim against the respondent on January 31, 2001. The respondent delivered a statement of defence to the third party claim on April 29, 2004.

The respondent brought a motion to dismiss the third party claim for delay even though it had been dissolved since December 27, 2016. The motions judge granted the motion.

Issues:

(1) Did the motions judge err in giving the respondent standing to bring the motion, given that it was dissolved?

(2) Can a third party claim be dismissed for delay when the main action has not been dismissed for delay?

(3) Did the motion judge err in finding prejudice resulting from the death of the respondent's former principal?

Holding: Appeal dismissed.

Reasoning:

(1) No. Under s. 242 of the Ontario Business Corporations Act ("OBCA"), a dissolved corporation remains capable of taking certain actions after it is dissolved, without first being revived, and does not cease to exist for all purposes upon dissolution. Nothing under this section requires that a corporation be revived before an action can be continued. It will not always be necessary to revive a dissolved corporation in order to effectively continue a claim brought by it before dissolution or defend a claim made against it. Ss. 242(1)(a),(c) and 243 provide avenues where this situation arises.

(2) Yes. Rule 29.08(2) allows the court to order that the trial of the third party claim take place before the trial of the main action. Where the third party claim involves discrete issues unrelated to the main action such that the determination of those issues is not dependent on the outcome of the main action, it may be possible to have the third party trial before the main action. In such a case, delay in the main action does not justify delay in a third party claim.

(3) No. The delay in delivering the statement of defence in 2004 was not unreasonable. Further, the appellant had been put on notice that the respondent was alleging prejudice because of delay. Therefore the appellant should have taken steps to ready the third party claim for trial. At the time of the former principal's death, the appellant had yet to deliver an affidavit of documents, as required under the Rules, nor taken any steps to get the matter ready for trial. Inordinate delay in this case gave rise to a presumption of prejudice which the appellant failed to rebut.

Groia v. The Law Society of Upper Canada, 2016 ONCA 471

[MacPherson, Cronk and Brown JJ.A.]

Counsel:A. Cherniak, Q.C. and J. T. Akbarali, for the appellant

T. Curry, J. E. Lilles and A. Porter, for the respondent

Reid and J. Cornish, for the Intervener, Attorney General for Ontario

J.J. Cavalluzzo and N. Lambek, for the Intervener, Ontario Crown Attorneys' Association

J. O'Sullivan, M. R. Law and D. Templer, for the Intervener, The Advocates' Society

F. Zwibel, for the Intervener, Canadian Civil Liberties Association

A. Olah and E. Meehan, Q.C., for the Intervener, Canadian Defence Lawyers Association

Rouben, D. Nicholson and D. Romaine, for the Intervener, Ontario Trial Lawyers Association

Parker and A. Chaisson, for the Intervener, Criminal Lawyers' Association

Keywords: Administrative Law, Regulation of Professions, Lawyers, Discipline, Professional Misconduct, Law Society Act, Rules of Professional Conduct, Rule 4.01, Civility, Judicial Review, Standard of Review, Reasonableness, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190

Facts:

On appeal to this court, Joseph Groia challenges the Law Society Appeal Panel's findings of professional misconduct against him in relation to his in-court conduct towards opposing counsel. He also appeals the associated penalty and adverse costs award imposed by the Appeal Panel in light of those findings. The Divisional Court upheld the Appeal Panel's decisions and costs award.

As an experienced securities litigator, Mr. Groia defended John Bernard Felderhof, a senior officer and director of Bre-X Minerals Ltd., on eight charges of violating the Securities Act. In November 2009, after the trial had concluded and Mr. Felderhof was acquitted of all charges, the Law Society initiated disciplinary proceedings against Mr. Groia alleging that he had engaged in professional misconduct while defending Mr. Felderhof.

Disputes arose between counsel in the Felderhof case almost immediately, and Mr. Groia made allegations of serious prosecutorial misconduct by the Ontario Securities Commission ("OSC") prosecutors. The allegations resulted in several motions and submissions before the trial judge which consumed much of the court's time. By day 70 of trial, the toxic relationship between Mr. Groia and the OSC prosecutors was sufficiently pervasive as to overtake the orderly and normal progress of the trial.

The OSC prosecutors subsequently brought an application for judicial review, arguing that Mr...