Appeal (Employment). On February 16, 2021 (after 3 months under reserve) the Court of Appeal for Ontario issued a 33-page decision, which deals with a number of employment, civil litigation and civil procedure issues, ranging from the court’s jurisdiction on appeal from various orders (ie final and interlocutory), oppression to causes of action under s. 81 of the Employment Standards Act, 2000 and s. 131 of the Ontario Business Corporation Act. The court overturned the motion judge’s decision and resolved that individual directors can be personally sued for unpaid wages under s. 131 of the OBCA, but not under s. 81 of the ESA. Our client was successful on appeal.
Application (Duty of Fair Representation). On July 6, 2021, the Ontario Labour Relations Board released a 45-page decision, granting our client’s (tenured professor with 49 years of experience) duty of fair representation application. The Board neither minced words nor held back. It found that the King’s University College Faculty Association: “misrepresented,” “recklessly disregarded” our client’s interests, acted in “bad faith” and in “direct conflict” with our client’s interests, and went “beyond non-caring.” In addition, the Board forced the union to support our client’s grievance in its entirety. It confirmed our client’s independent standing to fight the grievance on his own and compelled the union “not to participate in any steps of the grievance procedure or in any arbitration,” “unless invited to do so” by our client. This is both significant and exceptionally rare outcome.
Human Rights (Discrimination based on disability). On April 16, 2021, after – 7 1/2 years of litigation – 13 days of contentious hearings – 11 witnesses – a motion to exclude an expert witness (2016 CHRT 14) – a mistrial motion – a motion for recusal (2017 CHRT 17) – the Tribunal’s member abdication & disappearance – and a 50.6 months delay in issuing a decision, the Canadian Human Rights Tribunal – having previously ruled (2020 CHRT 33) in our client’s favour on the issue of discrimination due to disability and John Grant Haulage Ltd’s failure to accommodate it – issued its liability decision awarding our client nearly maximum permissible amounts for pain and suffering damages: $18,000 (out of $20,000 permissible by statute) and $15,000 (out of $20,000) for special (punitive) damages, making its total award almost $100,000.
ESA Complaint (COVID-19 and Refusal to Return to Work). On March 8, 2021, the Ontario Ministry of Labour (Employment Standards Branch) found that the employee’s failure to return to work because of his fear of contracting and passing COVID-19 virus to his parents amounted to a wilful neglect of duty. The ESA Officer was persuaded that the employee’s self-isolation does not constitute “providing care or assistance” to his parents. As a consequence, pursuant to ss 2(1)(3) and 9(1)(6) of the Ontario Regulation 288/01, the ESA Officer found that our large corporate client is not required to pay termination pay and severance pay to the employee.
Leave Application (PRRA’s cancellation). On October 19, 2021, the Federal Court granted leave to judicially review the Minister of Citizenship and Immigration’s decision to cancel the Pre-removal Risk Assessment application, which our client initiated at the Minister’s invitation and properly submitted. Prior to the leave being granted, the Minister attempted, albeit unsuccessfully, to dismiss the pending leave application for being moot (for the court’s ruling see immediately below).
Motion to Dismiss a PRRA Leave Application (Mootness). On September 7, 2021, the Federal Court refused the Minister of Citizenship and Immigration’s motion seeking an order dismissing our client’s pending application for leave and for judicial review for being allegedly moot. The court resolved that a live controversy with a practical effect on our client’s rights still exists. The court also dismissed the Minister’s request to vacate its production order, compelled the Minister to comply with it and, among others, denied its opportunistic request for costs.
Leave Application (Deportation). On March 17, 2021, the Federal Court granted leave to judicially review a decision of the enforcement officer who refused to defer our client’s removal from Canada. Previously, on December 13, 2019, Mr. Justice Pentney heard an emergency injunction to stop our client’s deportation, which is a rarely granted extraordinary, discretionary relief of an equitable nature. On Saturday, December 14, 2019, or just 1.5 days prior to the scheduled removal, Justice Pentney issued a 20-page decision, granting a stay of removal.
Human Rights (Discrimination). After – 7 years of litigation – 13 days of contentious hearings – 11 witnesses – a motion to exclude an expert witness (2016 CHRT 14) – a mistrial motion – a motion for recusal (2017 CHRT 17) – the Tribunal’s member abdication & disappearance – and a 44.8 months delay in issuing a decision, the Canadian Human Rights Tribunal ruled in our client’s favour on the issue of discrimination due to disability and John Grant Haulage Ltd’s failure to accommodate it.
Appeal (Human Rights). Appeal from the Federal Court’s judgment, which upheld the adequacy of the Canadian Human Rights Commission’s investigation into the alleged human rights complaint. The FCA agreed with the FC and dismissed our client’s highly contested appeal.
Appeal (Employment). On Friday, February 21, 2020, Mr. Justice Pattillo upheld the trial judge’s judgment dismissing a claim for wrongful dismissal and confirmed that the Foundation’s termination clause was valid and enforceable. The court also awarded $10,000 in costs in our client’s favour.
Injunction (Stay of Removal). On Friday, December 13, 2019, Mr. Justice Pentney heard an emergency injunction to stop deportation, which is a rarely granted extraordinary, discretionary relief of an equitable nature. On Saturday, December 14, 2019, or just 1.5 days prior to the scheduled removal, Justice Pentney issued a 20-page decision, granting a stay of removal.
Motion to Quash an Appeal (Jurisdiction). This motion concerned the Court of Appeal’s jurisdiction to hear our client’s appeal. The court was required to decide whether the challenged order was final or interlocutory. The court ruled that the order was interlocutory and dismissed our client’s appeal. The determination of whether an order is “final” or “interlocutory” is a legal minefield for both novice and experienced counsel. The distinction between the orders is of crucial importance, because it confers substantively different procedural rights. There is a vexing lack of consistency in jurisprudence and no statutory pronouncement regarding how to classify orders for the purposes of determining the appropriate appeal route. To learn more, please refer to our article, entitled “A Tale of Two Orders: Final or Interlocutory?“, which was published in The Advocates’ Quarterly (2020), 51 Adv. Q, p 110 (September 2020).
Judicial Review (H&C). On September 11, 2019, Justice Kane granted judicial review of a negative Humanitarian & Compassionate decision, which involved, inter alia, a legally blind man who requires his wife’s 24/7 support, which makes it impossible for her to obtain employment that pays enough to sponsor her widowed mother.
Stay of Proceeding. On September 10, 2019, in the context of maritime commerce, the Superior Court of Justice granted a stay proceeding preventing the plaintiff from litigating in the courts of Canada.
Motion to Strike (Pleadings). The court struck numerous causes of action and more than 10 paragraphs from our client’s statement of claim. On appeal, the Court of Appeal for Ontario reversed the motion judge’s decision. The Court of Appeal’s decision may be read here: 2021 ONCA 95.
Trial (Wrongful Dismissal). The trial concerned the question of the validity and enforceability of a termination clause. On October 31, 2018, Mr. Chsherbinin persuaded the Ontario Superior Court that the termination provision was valid and enforceable. As a result, the wrongful dismissal action brought against the Foundation by its former Director of Philanthropy (who sought to recover 4 months’ pay in lieu of notice) was dismissed, with costs.
Appeal (Employment; paralegal or employee?). On September 13, 2018, Mr. Chsherbinin persuaded the Ontario Labour Relations Board to dismiss an appeal by a paralegal who claimed that she was an employee and not an independent contractor. Credibility was a significant issue, which required testimony from 9 witnesses, over several days of hearing.
Appeal (Employment). On November 23, 2017, Mr. Chsherbinin persuaded the Ontario Superior Court to dismiss an appeal from Master Abramas’ order that compelled the corporate directors to produce income tax and account statements for all their personal accounts. The court also awarded $15,000 in legal costs to our client.
Judicial Review (Citizenship). On September 11, 2017, Mr. Chsherbinin successfully resisted the Minister of Citizenship & Immigration’s application for judicial review of a citizenship judge’s decision, which granted Canadian citizenship to his client.
Motion (Production of Documents & Amendment of a Claim). On September 11, 2017, Mr. Chsherbinin brought a successful motion in the Ontario Superior Court for a further and better affidavit and amendment of a statement of claim. Both reliefs were vigorously opposed and argued over two days. In addition, Mr. Chsherbinin successfully resisted the main reliefs that the Defendants sought in their cross-motion.
Judicial Review (Sibling Sponsorship). This rare case stems from one brother’s desire to sponsor another to Canada. A Beirut-based visa officer refused the sponsorship, because the brothers’ mother is still alive and should be sponsored first. On April 28, 2017, Justice Shore granted leave to judicially review the negative decision, but on July 24, 2017, Justice Fothergill dismissed the judicial review. Nevertheless, His Honour was persuaded that the questions in this case transcended the interests of the parties and certified a question of “general importance,” which Mr. Chsherbinin proposed. The Federal Court certifies questions of general importance on very infrequent occasions and it is the only means by which this case was able to be elevated to the Federal Court of Appeal.
Judicial Review (PRRA). On July 6, 2017, Justice Elliott granted leave to judicially review a negative Pre-removal Risk Assessment decision, where the Officer treated a child as an adult, and failed to consider whether state protection is available in South Korea to North Koreans who are discriminated there on the basis of their ethnicity.
Motion for Recusal (Human Rights). On June 13, 2017, Mr. Chsherbinin persuaded the Canadian Human Rights Tribunal to dismiss John Grant Haulage’s motion seeking Member Bryan’s recusal for “shaking hands” with the complainant.
Judicial Review (H&C). On May 4, 2017, Justice Elliott set aside Citizenship & Immigration Canada’s refusal of the Gonzales family’s Humanitarian & Compassionate application. This case stresses the importance for immigration officers to weigh the negative consequences on the children of their parents removal from Canada.
Appeal (Residency). On April 3, 2017, Mr. Chsherbinin persuaded the Immigration Appeal Division and Canada Border Services Agency to overturn a Moscow-based visa officer’s decision, which revoked Ms. Vakhromova’s permanent resident status due to her failure to meet the residency obligation.
Judicial Review (H&C). On February 23, 2017, Justice Mactavish set aside Citizenship & Immigration Canada’s refusal of the Arzaumanov family’s Humanitarian & Compassionate application. This case stresses the importance for immigration officers to recognize and to accord the applicants’ establishment in Canada a greater weight, if it was developed in circumstances that were beyond their control. The leave was granted on November 30, 2016 by Justice Southcott.
Judgment. On February 14, 2017, Mr. Chsherbinin successfully obtained a judgment against Streit Manufacturing Inc. for unpaid invoices.
Human Rights (admissibility of expert evidence). On August 19, 2016, the Canadian Human Rights Tribunal granted Mr. Christoforou’s preliminary motion to exclude his ex-employer’s “expert” (medical) evidence for lacking impartiality, being unnecessary and prejudicial. The Tribunal also excluded the ex-employer’s doctor’s oral evidence and refused to qualify him as an “expert”. A 40-page ruling stresses the importance of evidence control procedures in the hearings before the Tribunal and highlights its “gatekeeping” role.
Judicial Review (H&C). On July 13, 2016, Justice Southcott granted the application for judicial review, which quashed the decision of a Senior Immigration Officer dated November 19, 2012, refusing the Arzaumanov family’s Humanitarian & Compassionate application. The leave in this matter was granted on June 14, 2016 by Madam Justice Tremblay-Lamer.
Judicial Review (organized criminality / people smuggling). On March 31, 2016, Justice Gleeson quashed and set aside the Immigration Division’s decision, which found Mr. Gechuashvili inadmissible for the alleged people smuggling, stripped him of his lawful status in Canada and ordered him deported. The leave application was brought and decided on the expedited basis.
Judicial Review (misrepresentation). On March 2, 2016 Justice Diner allowed Mr. Kvitsaridze’s application for judicial review and set aside the Citizenship and Immigration Canada’s decision, which refused Mr. Kvitsaridze’s permanent residence application for the alleged misrepresentation (concealment of his foreign criminal convictions). Justice Heneghan granted leave in this matter on December 24, 2015.
Judicial Review (spouse sponsorship). On February 1, 2016 Justice Boswell granted leave in Mr. Gechuashvili’s judicial review application, where he challenged the immigration officer’s decision refusing his in-Canada spouse sponsorship application. On March 31, 2016, Justice Gleeson granted the judicial review and remitted Mr. Gechuashvili’s application for reconsideration.
Judicial Review (H&C refusal). On December 14, 2015 Justice Brown granted the judicial review and remitted the matter back for re-determination. Notably, on December 10, 2015, the Supreme Court of Canada rendered an important judgment in Kanthasamy v. Canada (CIC), 2015 SCC 61, where it revamped the legal test for granting permanent resident status on H&C grounds.
Judicial Review (stay of deportation). On September 24, 2015 Justice Fothergill granted leave in the case that deals with the Canada Border Service Agency’s refusal to defer Mr. Logachov’s deportation to Ukraine. On December 16, 2015, during the course of judicial review hearing, the CBSA formally undertook not to remove Mr. Logachov to Ukraine, until his Pre-removal Risk Assessment is decided.
Injunction (organized criminality). On July 9, 2015 Mr. Chsherbinin successfully resisted the Minister of Public Safety and Emergency Preparedness’ motion seeking to stay the execution of the Immigration Division’s order, which released his client from the immigration detention, where he was held on the allegation of association with a criminal organization. Due to the government’s improper conduct, Justice Bell condemned it – with a rarely awarded – legal cost in the amount of $1,000.
Injunction (restrictive covenants). On July 3, 2015 Mr. Chsherbinin successfully resisted Globe Express’ injunction, brought in the context of the breach of non-competition covenant, in which it sought to: (a) prevent Sparx Logistics from allegedly “misusing” its confidential information; and (b) obtain an order to inspect its computers. Justice McCarthy dismissed Globe Express’ motion in its entirety and awarded $15,000 in legal costs to Mr. Chsherbinin’s clients.
Injunction (stay of deportation). On May 29, 2015 (or 2 days before the scheduled deportation) the Federal Court granted a stay of Mr. Logachov’s removal from Canada to Ukraine. The court was persuaded that some of the CBSA Officer’s reasons were “incomprehensible” and that there is “a real probability that unavoidable, irreparable harm will result” if Mr. Logachov was removed.
Human Rights (discrimination based on disability). On May 5, 2015 the Ontario Human Rights Tribunal denied Co-ex-Tec’s application for an order dismissing the Applicant’s human rights complaint. In addition, the OHRT refused to defer the consideration of the Applicant’s application until the WSIAT appeal is concluded.
Judicial Review (H&C refusal). On January 21, 2015 the Federal Court set aside the Citizenship and Immigration Canada’s decision refusing the Trus family’s humanitarian & compassionate application. In light of the medical evidence, the CIC’s findings were unreasonable.
Judicial Review (alternatives to detention). On December 16, 2014 the Federal Court considered, on an expedited basis, and overturned the Immigration Division’s decision, because it found that Member Nupponen erred in law by refusing to consider alternatives to detention even though Ms. Berdzenadze’s identity was not yet determined. Justice Russell observed: “ The alternatives must be considered. The Board has its own view how the system works, but that view does not accord with the jurisprudence on point.”
Judicial Review (can a person on ODSP act as a bondsperson?) The Federal Court said “yes”. While it clarified the law that plagued the Immigration Division with uncertainty, the court ultimately dismissed the application for becoming moot.
Judicial Review (Immigration Appeal Division’s refusal to hear an appeal). The Applicant was found ineligible to act as a sponsor. She appealed that decision to the Appeal Division, where Member Zanfir concluded that due to the Applicant’s ineligibility, the decision not to issue her mother a permanent resident visa was made. As such, in his view, the Applicant had no statutory right to appeal seemingly “non-existent” decision. On September 11, 2014, Justice Hughes overturned Member Zanfir’s decision.
Appeal (spouse sponsorship refusal). On September 9, 2014 the Immigration Appeal Division overturned a Moscow-based visa officer’s decision refusing an outside-Canada spouse sponsorship application.
Motion (new evidence). Having been satisfied that Ms. Chenhova raised serious issues preventing her from filing her own affidavit, on June 30, 2014 the Federal Court granted an order permitting her to file evidence after the pleadings were closed.
Detention Review (organized criminality). Issue: should a person who is alleged to be a danger to the Canadian public and a flight risk be released from immigration detention 3 days before his admissibility hearing? As a result of vigorous submissions during April 11, 14, 15, 22, 29 and 30, 2014 hearings, Mr. Chsherbinin persuaded the Immigration Division that his client is neither a danger to the public nor a flight risk. Consequently, the Immigration Division released Mr. Gavashelishvili after 3 months of immigration detention and 3 days before his admissibility hearing. Curiously, at the outset of the May 7, 2014 admissibility hearing, the Minister withdrew all allegations.
Judicial Review (organized criminality). On April 11, 2014 Mr. Chsherbinin persuaded the Federal Court that the judicial review should be decided within 1 week. On April 17, 2014 the Court granted leave and judicially reviewed the Immigration Division’s decision. On April 22, 2014 Justice Heneghan set the Immigration Division’s decision aside for being unreasonable. In addition to Odosashvili (below), this case further reaffirms detainees’ right to sur-reply during detention reviews.
Judicial Review (organized criminality). On March 31, 2014 the Federal Court overturned the Immigration Division’s decision that continued Mr. Odosashvili’s immigration detention, because the court was persuaded that the Minister made “false submissions” and provided “inaccurate information in…the statutory declaration”. Significantly, this case clarifies detainees’ right to sur-reply during detention reviews.
Injunction (organized crimiality). Mr. Chsherbinin successfully resisted the Minister of Public Safety and Emergency Preparedness’ injunction seeking to stay the Immigration Division’s decision that released Ms. Sidamonidze from the immigration detention. The Federal Court dismissed the Minister’s injunction on March 6, 2014.
Detention Review. On November 12, 2013 Mr. Chsherbinin persuaded the Immigration Division that Ms. Cohen, Ms. Husson and Mr. Brami’s continued detention is not justified. A week earlier, Mr. Chsherbinin assisted these clients in obtaining an “absolute discharge” for rare charges laid against them under the Immigration and Refugee Protection Act for working in Canada without authorization.
Motion (non-union employee’s standing in a labour arbitration proceeding). On July 16, 2013 Mr. Chsherbinin successfully argued that a supervisor was entitled to the third party standing in the arbitration proceeding together with an opportunity to cross-examine witnesses and make submissions, and without bearing his share of costs.
Appeal (citizenship refusal). On April 12, 2013 Mr. Chsherbinin prevailed in a highly contested appeal arising from the Citizenship Judge’s denial of Canadian citizenship to Ms. Korolove.
Mareva Injunction & Norwich Order (freezing of bank accounts). On November 27, 2012 Mr. Chsherbinin successfully obtained exceptional ordersfreezing the defendants’ banks accounts in Ontario and Canada-wide and requiring the Royal Bank of Canada to release the detailed records of financial transactions.
Judicial Review (stay of deportation). On July 26, 2012 the Federal Court decided the judicial review in Mr. Khodov’s favour. The decision of an enforcement officer not to defer his removal was quashed and remitted back for re-determination.
Injunction (stay of deportation). On November 16, 2011 Mr. Chsherbinin successfully persuaded the Federal Court that the Enforcement Officer erred in law when he refused to administratively defer Mr. Khodov’s removal from Canada.
Appeal (just cause dismissal). In this case, the Ontario Divisional Court upheld that one ill-advised letter from the employee to her employer, calling her “dishonest and negligent”, was not enough to justify firing her without notice. This case provides an interesting look into the nature of dismissal for cause and the challenge employers face when seeking to establish just cause for dismissal.
Motion (disclosure of privileged information). In this case, Mr. Chsherbinin, on behalf of the corporate respondent, successfully persuaded the Ontario Human Rights Tribunal that the privilege was the employer’s and not the employee’s to waive.
Appeal (revocation of permanent resident status). In this case, Mr. Chsherbinin successfully argued, before the Immigration Appeal Division, that a Moscow-based visa officer’s decision, which revoked Mr. Zvorygin’s permanent resident status due to his alleged failure to meet the residency obligation was not valid in law.
Trial (breach of contract). At trial, Mr. Chsherbinin successfully argued, on behalf of the Academy that the defendants fundamentally breached the contract for supply of educational services.