Court Of Appeal Summaries (July 12-16)

• Published date: 21 July 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Family and Matrimonial, Employee Rights/ Labour Relations, Family Law, Trials & Appeals & Compensation, Divorce
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of July 16, 2021.

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Topics covered this week included several family law decisions relating to custody and access, relocation and spousal support and labour law (duty to bargain in good faith).

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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Table of Contents

Civil Decisions

Society of United Professionals v. New Horizon System Solutions, 2021 ONCA 503

Keywords: Labour Law, Administrative Law, Judicial Review, Reasonableness, Collective Bargaining, Duty to Bargain in Good Faith, Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 17 and 70, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation and General Workers' Union of Canada v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.), Bernard v. Canada (Attorney General), 2014 SCC 13, C.U.P.E., Local 2424 v. Carleton University, 1998 CarswellOnt 2648 (Ont. L.R.B.) Canadian Paper Workers Union, Local 305 v. International Wallcoverings, 1983 CanLII 764 (Ont. L.R.B.), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, United Electrical, Radio and Machine Workers of America v. DeVilbiss Canada Ltd., 1976 CarswellOnt 592 (Ont. L.R.B.), Royal Conservatory of Music Faculty Assn. v. University of Toronto (Royal Conservatory of Music), 1985 CanLII 1085 (Ont. L.R.B.)

Moreton v. Inthavixay , 2021 ONCA 501

Keywords: Family Law, Custody and Access, Relocation, Civil Procedure, Trials, Bifurcation, Adjournments, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children's Law Reform Act, R.S.O. 1990, c. C. 12, Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14, Bourke v. Davis, 2021 ONCA 97, Gordon v. Goertz, [1996] S.C.R. 27, Porter v. Bryan, 2017 ONCA 677, Decaen v. Decaen, 2013 ONCA 218

Bors v. Bors , 2021 ONCA 513

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Standard of Review, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor v. Pitawanakwat, 2017 ONCA 77, Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. Palmer, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

Boudreau v. Jakobsen , 2021 ONCA 511

Keywords: Family Law, Spouse, Definition, Spousal Support, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8) and (9), Divorce Act, R.S.C., 1985, c. 3, s. 15.2(6), Spousal Support Advisory Guidelines, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), M. v. H., [1999] 2 S.C.R. 3, Climans v. Latner' 2020 ONCA 554, Opie v. Zegil (1997), 28 R.F.L. (4th) 405 (Ont. C.A.), Ballanger v. Ballanger, 2020 ONCA 626, Rioux v. Rioux, 2009 ONCA 569, Fisher v. Fisher, 2008 ONCA 11, Chutter v. Chutter, 2008 BCCA 507, Fong v. Chan (1990), 181 D.L.R. (4th) 614

Short Civil Decisions

Ontario College of Teachers v. Bouragba , 2021 ONCA 508

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

Paletta International Corporation v. Liberty Freezers London Ltd., 2021 ONCA 512

Keywords: Damages, Costs

CIVIL DECISIONS

Society of United Professionals v. New Horizon System Solutions , 2021 ONCA 503

[Rouleau, Hoy and van Rensburg JJ.A.]

Counsel:

J.M. Andrew and B. Dosanjh, for the Appellant

D.M. Jeffries and A. Jamieson, for the Respondent, New Horizon System Solutions

L. Lawrence and A. Hart, for the respondent, Ontario Labour Relations Board

Keywords: Labour Law, Administrative Law, Judicial Review, Reasonableness, Collective Bargaining, Duty to Bargain in Good Faith, Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 17 and 70, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation and General Workers' Union of Canada v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.), Bernard v. Canada (Attorney General), 2014 SCC 13, C.U.P.E., Local 2424 v. Carleton University, 1998 CarswellOnt 2648 (Ont. L.R.B.) Canadian Paper Workers Union, Local 305 v. International Wallcoverings, 1983 CanLII 764 (Ont. L.R.B.), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, United Electrical, Radio and Machine Workers of America v. DeVilbiss Canada Ltd., 1976 CarswellOnt 592 (Ont. L.R.B.), Royal Conservatory of Music Faculty Assn. v. University of Toronto (Royal Conservatory of Music), 1985 CanLII 1085 (Ont. L.R.B.)

facts:

Information technology ("IT") employees at Ontario Power Generation ("OPG") were transferred to the Respondent company. The Appellant is the bargaining agent for these employees. As per the most recent Master Services Agreement ("MSA"), the Respondent provided IT services to OPG. The Appellant is not a party to the MSA. The collective agreement between the Appellant and Respondent has a voluntary separation program ("VSP"), which provides employees who accept termination with options for dealing with their pension. After seven positions were terminated in 2018, the Appellant requested disclosure of the MSA to best represent the affected employees. This request was denied. The Respondent then advised the Appellant that the pension plan was being wound up, and that the benefits would be worth about 70% of their currently calculated value.

The Appellant brought an application to the Ontario Labour Relations Board (the "Board") alleging that the Respondent violated ss. 17 and 70 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A ("LRA") because it failed to negotiate in good faith and interfered with the Appellant's representation of employees in the bargaining process. The allegations were based on the Respondent's refusal to disclose the unredacted copy of the MSA.

In a series of three decisions, the Board held that the Respondent 1) did not violate s. 70 of the LRA, 2) did violate the duty in s. 17 of the LRA and was ordered to make partial disclosure of the MSA, and 3) was not required to disclose a further provision of the MSA as requested by the Appellant. The Divisional Court dismissed the application in judicial review, holding that the decisions of the Board were reasonable.

issues:

(1) Was the Board's interpretation of s. 70 of the LRA unreasonable?

(2) Was the Board's decision to order partial disclosure of the MSA unreasonable?

(3) Was the decision to deny further disclosure of the MSA unreasonable?

holding:

Appeal dismissed.

reasoning:

(1) No.

S. 70 of the LRA prohibits an employer from interfering with the representation of employees by a union. The Board held that the Appellant is not mentioned in the MSA, nor is the MSA mentioned in the collective agreement. Therefore, the Appellant is not sufficiently connected to the MSA, as required for a violation of s. 70. Furthermore, the Board was reasonable in concluding that denying the Appellant's request for the MSA lacked interference because it was not necessary to carry out its representational duties, which is consistent with the Board's decision in Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation...