Amanda Hunter

The applicant hospital sought judicial review of an arbitrator's decision overturning the transfer of an employee who had previously been disciplined for assaulting a co-worker.

The hospital argued the transfer was an administrative decision to protect the complainant under the Occupational Health & Safety Act.

The arbitrator found the transfer constituted a second penalty for the same offence, violating the principle of double jeopardy.

The Divisional Court dismissed the application, holding that the arbitrator's decision was reasonable and properly balanced the competing values of workplace safety and protection against double jeopardy.

The court held a case management teleconference to set an expedited schedule for an application for judicial review.

The court established deadlines for the application records and factums, and scheduled the hearing for December 3, 2020.

The court also encouraged the parties to agree on interim terms to avoid the necessity of a stay motion.

This is a costs endorsement following the Court of Appeal's decision on an appeal of a wrongful dismissal case.

The appellant insurance company sought to reduce the respondent employee's damages by challenging the reasonable notice period and bonus entitlements.

The Court of Appeal allowed the appeal in part, reducing the notice period but dismissing other arguments.

The respondent sought clarification on bonus entitlements and the parties exchanged submissions on costs.

The Court declined to entertain new arguments raised by the appellant at the costs stage and awarded costs to the respondent.

A senior vice president with 37 years of service was terminated without cause following a minor dispute over promotional sporting event tickets.

The motion judge awarded 30 months' notice and full bonus entitlements during the notice period.

On appeal, the employer challenged both the notice period and the bonus entitlement.

The Court of Appeal reduced the notice period to 24 months, finding no exceptional circumstances warranting a longer period.

However, the court upheld the bonus entitlement, finding that while the termination provision in the bonus plans was unambiguous and would have limited the employee's entitlement, the provision was unenforceable because it was not properly communicated to the employee by the employer.

The plaintiff, a 62-year-old senior vice-president with 37 years of service, was terminated without cause.

On a motion for partial summary judgment, the court awarded a 30-month notice period, finding exceptional circumstances due to his age, tenure, and lack of comparable employment opportunities.

The court also held that the plaintiff was entitled to full bonus payments under the company's Long Term and Short Term Incentive Plans during the notice period, as the forfeiture clauses were not properly communicated, were ambiguous, and violated the Employment Standards Act.

The Union brought a preliminary motion arguing that the Employer improperly relied on stale-dated 'adverse notations' when terminating the grievor, a Transit Safety Officer, contrary to the collective agreement's sunset clause.

The Employer argued it only considered the culminating incident and a recent mentoring session.

The Grievance Settlement Board found that the termination letter and the deciding manager's testimony demonstrated reliance on prior complaints of excessive force that were over 24 months old.

Following prior jurisprudence, the Board held that relying on such stale-dated information violated the sunset clause.

The preliminary motion was granted, the discharge was set aside, and the grievor was reinstated with full compensation.

The Union grieved the termination of a Transit Safety Officer and brought a preliminary motion arguing the dismissal was void ab initio because the Employer relied on expired discipline.

The collective agreement contained a sunset clause requiring the removal of disciplinary records and letters of counsel after specified periods.

The decision-maker admitted to considering past customer complaints and an expired letter of counsel when deciding to terminate the Grievor for a use of force incident.

The Grievance Settlement Board held that the sunset clause was a mandatory substantive right and that the Employer's reliance on stale records violated the collective agreement.

The discharge was declared void ab initio, and the Grievor was reinstated with full compensation.

The applicant alleged that the respondent university discriminated against her on the basis of age, ancestry, place of origin, and ethnic origin when it did not interview her for a tenure-track position in the history of French Canada and Quebec.

The Tribunal found that the majority of the hiring committee reasonably concluded from the applicant's curriculum vitae that she did not possess the required expertise in the specific field.

Although one committee member applied criteria that created a distinction based on Code grounds, this did not disadvantage the applicant because the rest of the committee had already excluded her for non-discriminatory reasons.

The application was dismissed.

The union grieved six disciplinary actions, including a discharge, imposed on a GO Transit bus operator for various customer service incidents and insubordination.

The arbitrator upheld a three-day suspension, a letter of warning, and a five-day suspension for insubordination.

A second five-day suspension was set aside as the employer called no evidence.

A nine-day suspension for asking a passenger to mute a cell phone was reduced to five days.

The discharge, which followed an incident where the grievor made inappropriate comments to a young passenger who could not pay the full fare, was found to be excessive in light of the adjusted disciplinary record and the grievor's post-discharge letter acknowledging his mistakes.

The discharge was substituted with a three-week suspension.

The grievor, a GO Transit bus driver, was discharged after a preventable collision with a post at Union Station, which he failed to immediately report.

The union conceded the employer had cause to remove him from his driving position but grieved the termination of his employment, arguing he should be placed on unpaid leave to apply for non-driving vacancies.

The arbitrator found the grievor's failure to report was due to inattention rather than deliberate concealment.

Applying section 48(17) of the Labour Relations Act, the arbitrator substituted a six-month disciplinary suspension and ordered the grievor reinstated to an unpaid leave status, allowing him to apply for non-driving positions within the bargaining unit.

The applicant, who was separated from her husband, alleged discrimination on the basis of marital status after the respondent employer's new benefit plan provider refused to cover her husband as a dependent.

The plan defined a spouse as someone married to and living with the employee.

The Tribunal dismissed the application, finding that the differential treatment was permitted under the exemption in section 25(2) of the Human Rights Code, which allows employers to define 'spouse' and 'dependent' in group insurance contracts in compliance with the Employment Standards Act, 2000 and its regulations.

The Union filed a policy grievance alleging the Employer violated the collective agreement by denying requests for union leave for members to prepare for upcoming contract negotiations.

The Employer argued that 'participating in negotiations' under article 5.6 only covered attendance at face-to-face bargaining sessions.

The Grievance Settlement Board held that 'participating in negotiations' must be broadly construed to encompass preparation for negotiations, given the complexity of bargaining and the core representational function it serves.

The grievance was upheld, and the Employer was found to have breached the collective agreement by failing to exercise its discretion to consider the leave requests.

The applicant filed a human rights application alleging discrimination in employment based on place of origin, ethnic origin, and age, relating to denials of tenure track positions in 2001, 2005, 2006, and 2011.

The respondent requested that the pre-2011 allegations be dismissed for delay.

The Tribunal found that the pre-2011 allegations did not form a 'series of incidents' with the timely 2011 allegations due to a significant temporal gap and differing grounds of discrimination.

Furthermore, the Tribunal held that the delay was not incurred in good faith, as the applicant failed to demonstrate she had no reason to inquire about her rights.

The pre-2011 allegations were dismissed as untimely, and the matter was referred to mediation.

The applicant filed a human rights application alleging age discrimination in employment 16 months after his termination.

The Tribunal issued a Notice of Intent to Dismiss for being filed beyond the one-year limitation period under section 34 of the Human Rights Code.

The applicant argued the delay was due to depression and the time it took to complete the application.

The Tribunal found the applicant failed to provide medical evidence demonstrating that his disability prevented him from pursuing his rights within the timeline, noting he was actively pursuing a grievance during that period.

The application was dismissed for failing to establish the delay was incurred in good faith.

Following a successful motion striking the plaintiff’s statement of claim, certain defendants sought costs including substantial indemnity costs.

The court considered the parties’ extensive submissions regarding delay, cross-examinations, and the complexity of the motion.

While the defendants were wholly successful and entitled to costs, the court declined to award substantial indemnity costs, finding the plaintiff’s conduct did not rise to an abuse of process.

The court awarded partial indemnity costs and rejected the plaintiff’s request to stay the costs determination pending the outcome of a human rights application in another forum.

The respondents requested an order to defer the human rights application pending the completion of proceedings before the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

The applicant opposed the deferral, arguing that the human rights application raised issues beyond those before WSIAT and that a deferral would cause undue delay.

The Tribunal found that while there was an overlap of facts and issues, it was not appropriate to defer the application indefinitely because no hearing date had yet been set by WSIAT.

The request to defer was denied, with leave to revisit the issue once a WSIAT hearing date is scheduled.

The applicant union sought judicial review of an arbitrator's award dismissing its grievance for delay.

The arbitrator found that the union failed to explain a one-year delay in scheduling the resumption of the arbitration hearing, contrary to the collective agreement's requirement to expedite proceedings.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the collective agreement and exercise of discretion to be reasonable, and noting that the union's delay in perfecting the judicial review application also militated against granting relief.

The applicant, a South Asian woman, alleged she was discriminated against on the basis of race, colour, ethnic origin, and place of origin when her employment as a Branch Manager was terminated during her probationary period.

She pointed to an incident where a customer refused to speak to an 'Indian' manager and alleged subsequent differential treatment by her supervisor.

The Tribunal found the employer's explanation that the applicant was terminated for failing to meet performance expectations to be credible and more probable than an inference of discrimination.

The application was dismissed.

The applicant alleged he was subjected to workplace harassment and terminated on the basis of his disability (ADD/depression) by his employer and supervisors.

The Tribunal found the applicant's testimony lacked credibility due to numerous inconsistencies.

The Tribunal concluded that the supervisor's conduct and the applicant's subsequent termination were related to the applicant's poor work ethic, attitude, and insubordination, rather than any disability or perceived disability.

The application was dismissed.

The Court of Appeal issued a costs endorsement based on a consent filed by the parties.

The respondent was ordered to pay trial costs of $97,000 to one appellant, and $250,000 plus GST and disbursements to the other appellants.