3.             LITIGATION RECORD - 2009





Committee recommendation


That Council receive this report for information.



RecommandationS DU Comité


Que le Conseil municipal prennent connaissance du présent rapport.








1.                  Corporate Services and Economic Development Committee report dated 12 January 2010 (ACS2009-CMR-LEG-0002)





Report to/Rapport au :


Corporate Services and Economic Development Committee

Comité des services organisationnels et du développement économique


and Council / et au Conseil


  January 12, 2010 / le 12 janvier 2010 


Submitted by/Soumis par : M. Rick O’Connor
City Clerk and Solicitor /
Greffier et Chef du contentieux


Contact Person/Personne ressource : D. White, Manager, Litigation and

Labour Relations /Gestionnaire litiges et Relations de travail

 (613) 580-2424 x21933, david.white@ottawa.ca     


City Wide / À l'échelle de la Ville

Ref N°: ACS2010-CMR-LEG-0002




 LITIGATiON record – 2009









That the Corporate Services and Economic Development Committee and Council receive this report for information.





Que le Comité des services organisationnels et du développement économique et le Conseil municipal prennent connaissance du présent rapport.





In March and April 2009, the Corporate Services and Economic Development Committee and City Council received the first report on Legal Services’ litigation record (Ref N°: ACS2009-CMR-LEG-0008). That initial report, prepared in response to Council resolutions stemming from the 2007 Audit of Labour Relations, outlined the methodology by which litigation outcomes of all types, including labour arbitrations, civil claims and administrative tribunal matters, would be categorized as “successful” or “unsuccessful”, and provided a summary of those outcomes for 2008.  For comparative purposes, these 2008 litigation outcomes appear in parenthesis immediately following the 2009 figures found in Document 1.




In keeping with the format previously received by Council, this follow-up report contains, in Document 1, a summary of Legal Services’ outcomes for litigation that was finalized in 2009. The litigation outcomes for Legal Services matters will continue to be presented to Committee and Council on a quarterly basis.




As this is an administrative direction to staff, no public consultation was undertaken.





There are no significant Legal/Risk Management concerns arising from this report.





There are no financial implications arising from this report.





Document 1 -  Litigation Record – 2009 Results (Quarters 1, 2, 3 & 4)




Subject to any amendments by City Council, the City Clerk and Solicitor to continue to produce the City’s record for all litigation on a quarterly basis.

Document 1


LITIGATION RECORD – 2009 RESULTS (Quarters 1, 2, 3 & 4) and 2008 Results in Parenthesis


Civil Claims


Total matters concluded: 78 [63]

Successful Matters: 76 [61]

Unsuccessful Decisions: 2 [2]





56 [39]

20 [22]




Reasons for Unsuccessful Outcomes:


Case 1: This case involved an application for a vesting order, which was opposed by the City.  While the City argued that it had an approved policy for the sale of surplus property, which had not been complied with in this case, the judge relied instead on a prior instance for a similar property in the specific area in question where the City had permitted an alternate process, to grant the application.  As the ruling was specific to the property in question, it was determined that no remedial action was required as there was no prejudicial effect on the City’s current policies and procedures.


Case 2: In this case, the City sought judicial review of an arbitration ruling that the City’s requirement for renewal of criminal reference checks for firefighters was contrary to the collective agreement. The Divisional Court ruled that the standard of review of the arbitrator’s decision was reasonableness, and not correctness. As the decision was reasonable at law, the Court declined to overturn the award. As the City had already moved to implement the arbitration award, and as it was specific to firefighters, no further remedial action was called for.


Labour Arbitrations


Total Matters Concluded: 105 [174]

Successful Matters: 100 [171]

Unsuccessful Decisions: 5 [3]

By settlement

By decision/order



91 [124]

9 [47]




Reasons for Unsuccessful Outcomes:


Case 1:. This case involved the termination of an employee found to have a large amount of inappropriate material stored on his computer, and who had also circulated inappropriate material to co-workers. The arbitration panel accepted that the City's decision to terminate the employee was not unreasonable in the circumstances. However, in considering the grievor's lengthy service, discipline-free record and post discharge behaviour, the panel opted to exercise its statutory discretion and substitute a six-month suspension without pay for the termination.


Case 2: In this case, an arbitrator, citing the presumption of innocence, ruled that the City was required to look for alternate work for an employee facing serious criminal charges and whose bail conditions prevented him from continuing in his substantive job. Pending the disposition of the charges, the City had suspended the employee without pay. The City has sought judicial review of the arbitrator’s ruling that the City had a legal obligation to  “turn its attention to whether there were any vacant jobs, or jobs expected to become vacant, across the bargaining unit, that the grievor could perform”.


Case 3:  This case involved a grievance following a job competition where a junior employee was selected over a more senior candidate.  While the arbitrator accepted that the City may set job qualifications and establish job descriptions, the arbitrator also noted that the grievor had acted in a similar position for a period of time and had been called back to the position to work during peak periods. The City’s argument that it intended to increase the complexity of the job in the future and that, as a result, the grievor’s prior experience should be discounted, was rejected. The arbitrator concluded that the job description should match the duties and responsibilities of the actual job and not the job as envisioned for the future. As with many arbitration awards, this decision was specific to the facts of the case and of little wider effect. Nevertheless, the decision will inform future job competitions.


Case 4:  This case involved a claim that an employee was improperly denied accommodation for her medically certified disability of fibromyalgia by virtue of the City’s refusal to implement medical recommendations for her transfer to another position and a reduction of her hours of work. The arbitrator concluded that the City had not  taken proper account of the available medical evidence and had thus failed in its duty to accommodate the grievor. The issue of remedy was remitted back to the parties. In light of this ruling, Legal Services, Labour Relations, and Occupational Health and Safety are continuing to work together to better define their respective roles and responsibilities in respect of accommodation issues. The City and CUPE 503 have also agreed to establish an Accommodation Committee, on a trial basis, in order to bring together all parties with responsibility for the accommodation of employees with disabilities.


Case 5:  In this case, an arbitrator concluded that the City was obligated to compensate two employees for losses arising out of the implementation of a labour board settlement, some years prior. While the arbitrator ruled that the employees’ claims were excessive, he also rejected the City’s argument that no compensation was payable, in the circumstances. Given that this ruling was of no precedential value, no remedial action was called for.

OMB Matters


Total Matters Concluded: 26 [23]

Successful Matters: 23 [19]

Unsuccessful Decisions: 3 [4]

By Settlement

By Decision/Order



12 [1]

11 [18]




Reasons for Unsuccessful Outcomes:


Note:  more specific information on the results of cases before the Ontario Municipal Board will be reported in Legal Services’ Annual Report on these matters.


Case 1:  This case concerned an application for official plan and zoning amendments to permit a hotel to be constructed at the above address.  The basis for Council’s refusal was:

1)      The proposed development will introduce inappropriate traffic, in terms of:
b) type,
c) time of day
into a residential area


2)      The proposed development does not implement sections 2.5.1 and 4.11 of the Official Plan.


3)      The site specific Official Plan policies for the Kanata Town Centre direct development of the kind proposed to lands north of the Queensway.


4)      The proposed development will not assist to an appropriate degree in achieving the employment objectives for the Kanata Town Centre.


 5)  The site is not geotechnically appropriate for the proposed development.


The City was unable to retain a planner to defend the decision to refuse the amendments.


This was a site specific matter.


Case 2:  This matter was of course the subject of regular updates to Council prior to its conclusion.  Council refused the amendment to the Manotick Secondary Plan to permit 1400 units on Minto land within the village for 5 reasons:


1)      The proposed development is inconsistent with the Provincial Policy Statement, in particular for development that is not within the Urban Area;


2)      The amount and pace of growth is in excess of what is appropriate for the orderly development of the village of Manotick;

3)      The transportation network, with respect to both the local roads and the roads that convey traffic beyond the community is not sufficient to cope with the proposed development;


4)      The proposed scope of development will lead to an alteration of the village character not anticipated or appropriate by current and past planning policy;


5)      The proposal provides for insufficient protection for environmental areas;


After a lengthy hearing however, the Board approved the development.  The City sought and received leave to appeal on the proposition that recent amendments to the Planning Act required a greater degree of deference to Council’s decision.  In a two to one decision, the Divisional Court upheld the Board’s determination, finding that the amendments required only minimal deference. 


Council then instructed staff to approach the Legislature, through the means of Bill 212, for further amendments to the Planning Act to strengthen the role of municipalities.  Staff wrote to representatives of all three parties in the Legislature but no such amendments were introduced.


This case stands for the proposition that in applying the “have regard to” test in the Planning Act, the Board is only required to have minimal deference to the decisions of Council.


Case 3:  This case concerned an appeal under delegated authority of a 2008 decision to grant a consent to sever.  The matter at issue was the interpretation of the provisions of the Official Plan permitting one parcel from a lot of record at the time of the adoption of the Official Plan in May, 2003. in light of the grandparenting provisions approved by Council in 2003.


In this case, the first consent had been applied for prior to the adoption of the Official Plan but the lot had been created after the Official Plan was adopted.  Staff took the position that this was the one lot to which the applicant was entitled.  The Board however concluded that the 2003 severance was entitled to the benefit of the grandparenting policies and therefore did not count as the first post-official plan severance.  The 2008 consent was therefore granted.


This case indicates that the Board will give broad effect to grandparenting provisions adopted by Council where they are to the benefit of the applicant.


Other Administrative Tribunals (Human Rights, W.S.I.B., etc.)


Total matters concluded: 9 [25]

Successful Matters: 9 [23]

Unsuccessful Decisions: 0 [2]

By Settlement

By Decision/Order



4 [8]

5 [15]