Joseph D. Carrier

The Union grieved the Employer's assignment of Seasonal Warehouse Workers to backfill shortages created by absent Operations Clerks at the LCBO's Durham Warehouse.

The parties agreed to bifurcate liability and remedy, submitting sample issues for determination.

The Arbitrator found that assigning a Seasonal Warehouse Worker to perform Clerk work on an overtime basis without first offering it to permanent full-time Clerks violated the Overtime Equalization Agreement.

However, assigning a Seasonal Warehouse Worker to backfill a Clerk shift on straight time, even if it subsequently resulted in overtime for that worker or another Seasonal Warehouse Worker within their own classification, did not violate the collective agreement, as management retained the right to assign available regular hours efficiently.

The employer brought a motion to strike various paragraphs of the union's particulars regarding a grievance over the grievor's termination.

The employer argued that allegations relating to a failure to inquire into medical status, family status accommodation, harassment, and racial bias expanded the scope of the grievance or lacked factual underpinning.

The arbitrator retained particulars relating to the employer's knowledge of the grievor's mental health issues, finding they informed the narrative of a potential duty to inquire.

However, particulars attempting to add a denied transfer request based on family status were struck as an expansion of the grievance.

Allegations of harassment were struck for lacking factual underpinning.

Finally, allegations of racial bias stemming from a 2016 incident were struck as being too remote to shed light on the manager's state of mind during the 2021 termination.

The Grievance Settlement Board issued a case management order scheduling hearing dates and setting deadlines for the exchange of documents, responses to proposed litigation scenarios, and the finalization of an agreed statement of facts between the union and the employer.

The employer brought a preliminary motion to strike particulars relating to mental distress allegedly suffered by two grievors following discipline.

The employer argued that the medical opinions provided did not support the particulars and challenged the competency of the medical professionals.

The arbitrator dismissed the motion, finding that there was a prima facie case for unjust discipline which could form the basis of a claim for mental distress, and that the strength of the medical evidence and causal connection should be tested through the litigation process rather than on a preliminary motion.

The Union requested an adjournment of a virtual grievance hearing because the grievor was experiencing heightened anxiety.

The Employer initially refused but subsequently agreed to adjourn on a without prejudice basis.

The Arbitrator ordered the adjournment on the condition that the grievor provide medical documentation within three months outlining when he will be capable of participating and any required accommodations, failing which the matter may be dismissed.

During submissions on preliminary motions relating to a grievance, an electrical power failure in Toronto disconnected the grievor from the virtual hearing.

As counsel would be unable to complete their submissions that day regardless, the arbitrator adjourned the proceedings and scheduled a new date for continuation.

The employer brought a motion to strike several elements of the union's particulars relating to grievances filed by two employees who were disciplined and transferred following an investigation into a toxic workplace culture.

The employer argued that the claims for reputational damage, mental health issues, and lost promotional opportunities were too remote or represented an unwarranted expansion of the original grievances.

The arbitrator granted the motion in part, striking the claims for reputational damage and lost promotional opportunities, but allowing the mental health claims to proceed subject to the union providing more fulsome particulars regarding causation.

The Union filed six grievances following a provincial government announcement of its intention to increase the number of LCBO agency outlets, alleging a failure to consult.

The Employer brought a preliminary motion to dismiss the grievances as premature.

The Arbitrator granted the motion, finding that the mere announcement of an intention to open agency outlets did not constitute a breach of the collective agreement, and any alleged future breach was speculative rather than anticipatory.

The grievances were dismissed.

The employer brought a motion to dismiss the grievance after the grievor failed to comply with a previous order from the Grievance Settlement Board.

The prior order directed the grievor to provide reasons for his non-attendance at a hearing by a specified date, failing which the grievance would be dismissed.

The union confirmed the grievor received the decision but provided no response.

The arbitrator dismissed the grievance.

The employer brought a motion to dismiss the grievance after the grievor failed to comply with a previous order from the Grievance Settlement Board.

The prior order directed the grievor to provide the union with reasons for her non-attendance at a hearing, failing which the matter could be dismissed.

The union confirmed the grievor was provided with the decision but did not respond.

With no objection from the union, the arbitrator granted the employer's motion and dismissed the grievance.

The grievor failed to attend his termination grievance hearing and did not provide notice of his absence.

The employer requested that the grievance be dismissed.

The arbitrator adjourned the hearing and ordered the grievor to provide an explanation and supporting documentation for his non-attendance by a specified date.

If the grievor fails to respond within the time allowed, the grievance will be dismissed.

The union filed a grievance on behalf of the grievor.

A video conference hearing was scheduled, but the grievor failed to attend or provide reasons for her absence, despite being contacted by the union representative.

The arbitrator adjourned the hearing and directed the grievor to provide reasons for her non-attendance within 30 days, failing which the grievance may be dismissed without further notice.

During a case management discussion in a grievance arbitration regarding the grievor's termination, the Union sought to introduce a redacted psychological assessment report.

The Employer objected, arguing it was entitled to the unredacted report since the Union volunteered the evidence.

The Arbitrator held that because the Union unilaterally offered the medical report and intended to rely on it, it could not set the parameters for its examination by redacting portions.

The Arbitrator ordered the Union to provide the unredacted report to the Employer.

The grievor, represented by the union, alleged that she was the victim of harassment when a manager made sarcastic and demeaning remarks to her regarding a COVID screening document.

The arbitrator found that while the manager's remarks were inappropriate and sarcastic, they constituted a single "one-off" exchange during a work-related disagreement.

The arbitrator concluded that the conduct did not rise to the level of harassment as defined in arbitral jurisprudence.

The grievance was dismissed.

The Employer brought a preliminary motion to dismiss three individual grievances concerning the calculation of severance pay for casual employees.

The Employer argued that the Union was estopped from pursuing these grievances because it had previously withdrawn a policy grievance on the identical issue after receiving the Employer's particulars and productions, and had subsequently withdrawn bargaining proposals seeking the same benefit.

The Arbitrator agreed, finding that the withdrawal of the policy grievance in these circumstances, without stating it was 'without prejudice', constituted a representation that the Union accepted the Employer's interpretation of the collective agreement.

The motion was granted and the grievances were dismissed.

The employer brought a preliminary motion to strike particulars and dismiss a grievance challenging a Personal Development Plan (PDP) completed by an Acting Supervisor.

The arbitrator dismissed the PDP grievance, finding that performance appraisals are not disciplinary and therefore not subject to arbitral review for fairness, and that the acting supervisor had the authority to conduct the appraisal.

The arbitrator also struck particulars alleging gender bias in a promotion, as promotions to managerial positions are outside the scope of the collective agreement and the allegations constituted an unwarranted expansion of the grievance.

In a separate harassment grievance, the arbitrator struck particulars relating to an independent medical examination as an expansion of the grievance, but permitted particulars relating to medical accommodation.

The Union sought an extension of time to provide supplementary particulars and an adjournment of the hearing, citing the grievor's reported illness.

The Employer opposed the request and sought an order restricting the Union from providing further particulars, noting the grievor had attended work in person on the scheduled hearing date.

The Arbitrator denied both motions, ordering that the prior order for particulars stands, but directed the grievor to provide a detailed medical certificate explaining her inability to assist the Union and attend the virtual hearing while being able to attend work.

The Employer requested an order directing the Union to deliver particulars concerning the allegations in a 2019 grievance.

The parties had previously agreed during mediation that the Union would provide particulars by July 1, 2022, but they were not provided.

The Arbitrator ordered the Union to provide comprehensive particulars by September 16, 2022, failing which the grievance may be dismissed upon motion by the Employer.

The parties scheduled a hearing date to be used for mediation regarding 16 grievances over the allocation of overtime opportunities.

They could not agree on which of the 13 individual grievors could attend the mediation, with the employer citing operational needs and the union asserting all were entitled to attend.

The arbitrator ordered the matters to proceed via a test case with one grievance proceeding first, without determining remedy at this stage.

The employer sought an order for particulars regarding the grievor's allegations of harassment and discrimination, after previous requests were not satisfied.

The arbitrator granted the motion, ordering the union to provide full particulars by January 4, 2022, failing which the grievances may be dismissed.