Ontario Court Of Appeal Summaries (September 17 – 21, 2018)

Good afternoon,

As everyone will have heard by now, the Court of Appeal stayed Justice Belobaba's decision in Toronto (City) v. Ontario (Attorney General) in which he had determined that the government's plan to reduce the number of wards from 47 to 25 in the middle of the election cycle was unconstitutional.

In very brief reasons, the Court found that Justice Belobaba's decision was likely wrong, and that there was nothing unconstitutional about the government's actions. Accordingly, the lower court decision was stayed and the election can proceed with 25 wards. The government was spared having to invoke the notwithstanding clause.

Other topics this week included notice of termination in the context of a mass termination of employees, municipal liability for non-repair of a highway (two decisions), administrative law in the WSIB context, and causation in the medmal context.

Have a nice weekend.

CIVIL DECISIONS

Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761

[Hoy A.C.J.O, Sharpe and Trotter JJ.A.]

Counsel:

18. Basu, Y. Ranganathan and A. Ranalli, for the appellant Attorney General of Ontario

    D.W. Dimmer, C. Lynch and P. Chan, for the respondent City of Toronto

    R.K. Achampong, G. Magraph and S.A. Pieters, for the respondent Rocco Achampong

    P.G. Duffy and E. Romano, for intervener the City Clerk of the City of Toronto

8. Goldblatt, D. Sheppart and L. Century, for the respondents Chris Moise, Ish Aderonmu and Prebha Kjosla, on her own behalf and on behalf of all members of Women Win TO

   D.K. Eady, C.V. Jones and J. Martin, for the interveners J. Hollett, L. Cheng, S. Dexter, G. Kettel and D. Youssefi

   D.J. Bell and A. Boyes, for the intervener The Canadian Taxpayers' Federation

16. Cotter, for the intervener Toronto District School Board

    Keywords: Constitutional Law, Municipal Elections, Stay of Proceedings, Freedom of Expression, Democratic Rights, Effective Representation, Bill 5, Better Local Government Act, 2018, SO 2018, c. 11, Bill 31, Efficient Local Government Act, 2018, Canadian Charter of Rights and Freedoms, ss 1, 2(b), 3, 15(1) and 33, Baier v Alberta, 2007 SCC 31, Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989, Haig v Canada, [1993] 2 SCR 995, Harper v Canada (Attorney General), 2000 SCC 57, Libman v Quebec (Attorney General), [1997] 2 SCR 569, Reference re Provincial Electoral Boundaries (Saskatchewan), [1991] 2 SCR 158, RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877

    FACTS:

    The Royal Assent of Bill 5, Better Local Government Act, 2018, SO 2018, c. 11 ("Bill 5") on August 14, 2018 changed the structure of the upcoming October 22, 2018 municipal elections by replacing the existing 47-ward structure with a 25-ward structure in Toronto.

    The Superior Court of Justice held that Bill 5 infringed the freedom of expression rights of both candidates and voters under s 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"). With respect to candidates, the application judge found that Bill 5 substantially interfered with their ability to effectively communicate political messages to voters, and that it undermined the fair and equitable election process. With respect to voters, the application judge found that Bill 5 infringed s 2(b) by interfering with their right to vote. The application judge characterized the right to vote as "an expressive activity", which includes the right to "effective representation." He found that increasing the population size of the wards interfered with "voters' right to cast a vote that can result in effective representation." The application judge found that these infringements of s 2(b) could not be justified as a reasonable limit under s 1 of the Charter and therefore declared parts of Bill 5 to be of no force and effect.

    The Court announced this decision without delay and with briefer reasons than would otherwise be ordinary, because an immediate decision was required to ensure that the Toronto municipal election proceeded in as orderly a manner as possible.

    Issues:

    (1) Should the order of the Superior Court of Justice that the relevant provisions of Bill 5 infringe s 2(b) of the Charter be stayed pending an appeal to this Court?

    Holding:

    Motion for stay granted.

    Reasoning:

    (1) Yes. The appellants satisfied the test for when an appellate court should grant a stay of a lower court decision pending appeal as per RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 (the "RJR Test"). In order to satisfy the RJR Test, the applicant must demonstrate that: (i) there is a serious issue to be tried; (ii) it will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours a stay pending the disposition of the appeal.

    (i) The first part of the RJR Test is satisfied because there is a serious issue to be tried. Since the rights of the parties will be determined by this stay motion, it is necessary to consider whether there is a strong likelihood that the appeal will succeed under this part of the test. It is likely that the appeal will succeed because the application judge erred in law when interpreting s 2(b) of the Charter.

    First, the application judge erred by conflating the protection of expression in s 2(b) and the guarantee of democratic rights of citizens to vote in s 3 of the Charter. The application judge placed emphasis on "effective representation", a right that is at the core of s 3. Further, s 3 does not apply to municipal elections and does not protect them. The rights of s 2(b) and s 3 are distinct, and while they can overlap, it does not follow that doctrines pertaining to s 3 can expand the scope of s 2(b).

    Second, the application judge erred in finding that the decrease in the number of wards interfered with the candidates' freedom of expression by making the conveyance of their messages less effective. This interpretation of s 2(b) is inconsistent with jurisprudence that holds that legislation that diminishes the effectiveness of a message but does not prevent the communication of that message does not violate s 2(b) (Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Baier v. Alberta, 2007 SCC 31). Despite the decrease in number of wards, the candidates are still able to express themselves to voters and their communications are not restricted.

    Third, the candidates' expectations that the wards would be a certain size are not constitutionally guaranteed. The right to freedom of expression does not give the candidates a right to insist that the City or the Province maintain a certain platform.

    Fourth, the increase in the population of each ward does not substantially interfere with voters' rights under s 2(b) of the Charter. The size of the wards is a debateable matter of policy to be determined by the legislature, and in light of other provisions of the Charter, including s 15(1). Further, as per the application judge, it is not likely that the new ward sizes infringe s 15(1).

    (ii) The second part of the RJR Test is satisfied because the appellant will suffer irreparable harm if the stay is not granted. The determination that the appellant is likely to succeed on appeal because the application was wrongly decided is a strong indication that irreparable harm will result if the stay is not granted.

    (iii) The third part of the RJR Test is satisfied because the balance of convenience favours granting the stay. Courts should only declare laws enacted for the public inoperable before a complete constitutional review in clear cases (Harper v Canada (Attorney General), 2000 SCC 57). Since it has been determined that a constitutional review of Bill 5 is likely to show that the bill is constitutional, the balance of convenience favours granting a stay. Further, the timeline that the City Clerk faces in making necessary preparations for the election does not tip the balance of convenience against the granting a stay. This is because despite the confusion caused by these proceedings, an election with either 25 or 47 wards is still possible.

    Wood v. CTS of Canada Co., 2018 ONCA 758

    [Hoy A.C.J.O, Brown and Trotter JJ.A.]

    Counsel:

20. Pinos, K. Taylor and C. Russell, for the appellants S. Moreau and G. Cantin, for the respondents

    Keywords: Employment Law, Class Proceedings, Employment Standards, Mass Terminations, Notice of Termination, Working Notice, Statutory Interpretation, Machtinger v HOJ Industries, [1992] 1 SCR 986, R v Ulybel Enterprises Ltd, 2001 SCC 56, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, Evans v Teamsters Local Union No 31, 2008 SCC 20, Employment Standards Act, 2000, SO 2000 c. 41, Termination and Severance of Employment, O Reg 288/01, s. 3(1), Novaquest Finishing Inc. v. Abdoulrab, 2009 ONCA 491, Taylor v Dyer Brown (2004), 73 OR (3d) 358, Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469, Wood v Fred Deeley Imports Ltd, 2017 ONCA 158

    Facts:

    This appeal arose from the closure of a manufacturing plant operated by CTS of Canada Co. The closure resulted in a "mass termination" for the purposes of the Employment Standards Act, 2000, SO 2000 c. 41 ("ESA"). A class action was brought on behalf of former employees (the "respondents") against their common employers, CTS of Canada Co. and its parent corporation CTS Corp (the "appellants"). The class consisted of 74 former active employees who did not sign a release with the appellants and were not dismissed for cause. Both the appellants and respondents agreed to resolve common issues on a motion for summary judgment.

    The appellants gave written notice to employees on April 17, 2014, that the plant was closing and that their employment would terminate on March 27, 2015. The termination date was subsequently extended for most employees to June 26, 2015. Under ESA s. 58(1) and its regulation, Termination and Severance of Employment, O Reg 288/01, s. 3(1) (the "Regulation"), an employer must give at least eight weeks'...