Employment and Labour Law

The applicant, a university instructor, sought judicial review of an investigator's report and the university's subsequent determination dismissing her workplace harassment and discrimination complaint against a colleague.

The parties had previously agreed to bypass the collective agreement's formal inquiry panel process in favour of a private investigation.

The Divisional Court dismissed the application, finding that the customized, private process lacked the requisite public character to be amenable to judicial review, and also dismissed a motion to set aside a single judge's order striking the applicant's affidavit for containing inadmissible evidence.

The Equal Pay Coalition brought a motion for leave to intervene as a friend of the court in a judicial review of a decision by the Pay Equity Hearings Tribunal.

The underlying application concerned whether the employer failed to maintain compensation practices providing for pay equity.

The employer opposed the intervention, arguing the Coalition would not make a useful contribution and would duplicate the union's submissions.

The Divisional Court granted the motion, finding the Coalition could bring a broader perspective and constructive contribution to the issues, particularly regarding international conventions and the relationship between the Pay Equity Act and the Human Rights Code.

The intervention was granted subject to strict limits on the Coalition's participation.

The applicant resort sought judicial review of an Ontario Labour Relations Board decision upholding an inspector's order.

The order required the resort to report the drowning of a guest in an unsupervised swimming pool under s. 51(1) of the Occupational Health and Safety Act.

The Divisional Court upheld the Board's findings that 'person' includes non-workers and that the swimming pool was a 'workplace' because workers perform duties there, even if none were present during the incident.

The application for judicial review was dismissed.

The applicant sought judicial review of an Ontario Labour Relations Board decision finding that her union did not breach its duty of fair representation under s. 74 of the Labour Relations Act by failing to pursue her grievance regarding her layoff and dismissal.

The Divisional Court dismissed the application, finding that the Board's decision was reasonable, supported by evidence, and did not involve a denial of procedural fairness.

The applicant sought judicial review of a preliminary ruling by the Ontario Labour Relations Board regarding the arbitrability of a grievance.

The Divisional Court quashed the application as premature, applying the general rule that courts will not entertain judicial review of preliminary rulings while tribunal proceedings are pending, absent exceptional circumstances.

The court found no exceptional circumstances to justify bifurcating the ruling from the merits.

The applicant applied for judicial review of an arbitration award concerning the contracting out of a 'locating function' previously performed by an Inspector.

The Divisional Court dismissed the application, finding that the locating function constituted 'work' under the collective agreement.

The court held that the standard of review for the arbitrator's remedy was reasonableness.

The arbitrator's decision to award damages as an incentive for compliance, calculated based on the value of the work, was deemed reasonable.

The application was dismissed with costs awarded to the respondent.

The applicant employer sought judicial review of an arbitrator's decision regarding an employee placed on administrative leave without pay due to bail restrictions following an arrest.

The Divisional Court dismissed the application, finding that the arbitrator reasonably applied established arbitral jurisprudence requiring employers to attempt to identify an appropriate temporary position for employees precluded from performing normal duties due to pending criminal charges.

The court rejected the employer's argument that this principle was inapplicable because its actions were in response to bail restrictions.

The applicant sought judicial review of a decision by the Ontario Labour Relations Board.

The Board had concluded that the applicant's employment was terminated for willful disobedience, which disentitled him to termination pay under O. Reg. 288/01 of the Employment Standards Act.

The Divisional Court found the Board's decision to be reasonable and dismissed the application for judicial review with no costs.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his discrimination complaint against his employer and union to the Human Rights Tribunal.

He alleged a denial of natural justice because the Commission failed to interview certain witnesses and consider evidence of systemic discrimination.

The Divisional Court dismissed the application, finding no breach of procedural fairness as the un-interviewed witnesses lacked direct knowledge, and holding that the Commission's conclusion of insufficient evidence of discrimination was reasonable given the applicant's objective test scores.

Two organizations, Conservation Ontario and the Ontario Association of Chiefs of Police (OACP), brought motions for leave to intervene in a judicial review concerning the interpretation of the workplace injury reporting requirements under s. 51(1) of the Occupational Health and Safety Act.

The court granted intervenor status to Conservation Ontario, finding it could provide a broader context regarding the operation of recreational facilities without expanding the record.

The court dismissed the OACP's motion, as it sought to introduce new issues and factual assertions that were not before the original decision-maker.

The applicant sought judicial review of a decision by the Public Service Grievance Board, which found it lacked jurisdiction to hear his wrongful dismissal grievance because he had not been employed by the Crown for at least 12 months.

The applicant argued that new legislation, which removed the 12-month requirement for employees not on probation, should apply retrospectively.

The Divisional Court applied a correctness standard of review and upheld the Board's decision, finding that jurisdiction is a substantive matter and the former legislative provisions governed the applicant's crystallized rights at the time of his dismissal.

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 appellant, a junior lawyer, was summarily dismissed by her employer after writing a highly critical letter regarding office administration and compensation, which included an accusation of dishonesty and negligence.

The trial judge found the letter constituted insolence justifying summary dismissal.

On appeal, the Divisional Court held that the trial judge committed a palpable and overriding error by failing to apply the contextual approach mandated by McKinley v. BC Tel.

Applying the contextual approach, the Court found the single incident of harsh communication did not irreparably destroy the employment relationship.

The appeal was allowed and damages in lieu of reasonable notice were awarded.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision that found they had discriminated against an employee on the basis of ancestry, ethnic origin, creed, and sex.

The Divisional Court set aside the Tribunal's decision, finding it to be patently unreasonable and procedurally unfair.

The adjudicator erred by refusing to accommodate a key witness for the employer, drawing an adverse inference from that witness's absence, and making findings of discrimination regarding a microwave policy and dress code that were unsupported by factual findings or logical legal reasoning.

The matter was remitted for a new hearing before a different adjudicator.

The Ontario Nurses Association brought a motion to review and set aside a decision of Molloy J., which struck out an affidavit containing correspondence between an arbitration chair and the employer's nominee.

The underlying judicial review application by the Board of Health alleged a denial of natural justice because the arbitration board did not discuss the evidence before the chair issued a proposed decision.

The Divisional Court dismissed the motion, agreeing with Molloy J. that the correspondence was unnecessary to introduce as evidence because the facts it sought to establish were already addressed in the chair's reasons and were not disputed.

The applicant employee sought a stay of a first contract arbitration ordered by the Ontario Labour Relations Board, pending a judicial review of the Board's and Minister of Labour's decisions.

The applicant argued that the Board and Minister breached the employees' rights to natural justice and procedural fairness by not providing notice or an opportunity to participate.

The Divisional Court dismissed the motion for a stay, finding that the applicant failed to establish irreparable harm, as the mere imposition of a collective agreement pending the judicial review would not exacerbate the alleged harm.

The applicant school board sought judicial review of an arbitrator's decision interpreting a regulation under the Education Act regarding teacher performance appraisals.

The arbitrator found that the regulation did not provide principals with unfettered discretion to conduct extra appraisals, and that being new to a school or division did not constitute 'circumstances' relating to performance under s.6(1).

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the arbitrator's interpretation justifiable, transparent, and intelligible.

The applicant union sought judicial review of a Labour Arbitrator's decision interpreting a collective agreement provision on protective clothing.

The employer required metatarsal safety boots, which the union argued constituted an 'exceptional' working condition obligating the employer to provide them.

The Arbitrator found the requirement was merely an enhanced safety policy, not an exceptional working condition.

Applying the reasonableness standard of review from Dunsmuir, the Divisional Court held that the Arbitrator's contextual interpretation fell within a range of possible acceptable outcomes.

The application for judicial review was dismissed.

The appellants appealed a decision refusing to certify additional common issues in an existing class action and refusing certification of a proposed related class action.

The claims arose from the distribution of a pension plan surplus following corporate downsizing.

The appellants sought to certify issues related to the partial termination of the pension plan, ownership of the surplus, and estoppel.

The Divisional Court dismissed the appeal, finding that the court lacks jurisdiction to order a partial termination of a pension plan, and that the other proposed common issues were either inextricably linked to the partial termination claim, already covered by existing certified issues, or inappropriate for certification because they required individual assessments of reliance.

The appellant, a senior insurance agency employee, appealed the dismissal of her wrongful dismissal claim.

The trial judge found she was dismissed for just cause after deliberately manipulating her own auto insurance policy to avoid paying $4,600 in annual premiums, breaching the duty of utmost good faith.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the misconduct justified summary dismissal.