Employment and Labour Law

The informant sought to issue process for a private prosecution, alleging her employer violated the Genetic Non-Discrimination Act by requiring her to take a COVID-19 rapid antigen test as a condition of employment.

At the pre-enquête hearing, the court considered whether a rapid antigen test qualifies as a 'genetic test' under the Act.

The court found that a rapid antigen test merely detects the presence of viral nucleoprotein antigens and does not analyze DNA or RNA.

As the informant failed to establish a prima facie case, the court declined to issue process.

The defendant moved to strike a self-represented plaintiff's wrongful dismissal claim for failure to disclose a reasonable cause of action and on limitation grounds.

The court held the pleading was vague, uncertain, and failed to identify the essential elements of any recognizable breach of contract or wrongful dismissal claim.

Applying ss. 4 and 5 of the Limitations Act, 2002, the court further held that any claim arising from the alleged failure to contact the plaintiff after re-hiring was discovered in 2010 and the 2014 action was therefore statute-barred.

The motion was granted and the action dismissed with fixed costs.

In this costs endorsement following a wrongful dismissal trial, the plaintiff recovered modest damages well within the Small Claims Court monetary jurisdiction but sought substantial partial indemnity costs in the Superior Court.

The court held it was reasonable to commence the action in the Superior Court because the plaintiff had a bona fide fixed-term contract claim that, if successful, could have yielded damages of approximately $175,000.

The court rejected the defendant's submissions that the plaintiff should receive no costs, or should pay the defendant's costs, based on abandoned bad-faith allegations and the quantum recovered.

Partial indemnity costs of the trial and costs of the earlier security for costs motion were awarded to the plaintiff.

The insurer moved for summary judgment dismissing a long-term disability claim on the basis that notice and proof of claim were delivered outside the contractual deadlines in a group policy.

The insured asserted relief from forfeiture, relying on confusion about coverage, misleading information from the employer, and the absence of actual prejudice given the extensive medical record.

The court held that timely notice was a matter of imperfect compliance for which equitable relief could be available, and applied the three-part s. 98 Courts of Justice Act framework.

It found the insured's conduct reasonable, the breach relatively modest, and the disparity between the forfeited benefits and the damage caused by the breach significant.

Summary judgment was dismissed and a binding determination granting relief from forfeiture was made.

Employee wrongful dismissal action arising from post-disability return-to-work restructuring, disciplinary measures, and subsequent long-term disability leave.

The court found the employee was constructively dismissed when the employer unilaterally demoted him, altered his reporting structure, removed supervisory and budgetary responsibilities, and reduced his role to a more clerical function.

Applying the Bardal factors, the court awarded 18 months' notice, less ESA minimums already paid, and rejected claims for moral damages, intentional infliction of mental suffering, and punitive damages.

The court also rejected the employer's frustration and proportional reduction defences, and held the constructive dismissal claim was not statute-barred.

The applicant requested to reactivate his human rights application after the conclusion of a grievance process.

The respondent opposed, arguing the application should be dismissed under s. 45.1 of the Human Rights Code or as an abuse of process because the union settled the grievance by not pursuing arbitration, and the applicant's subsequent duty of fair representation complaint was dismissed by the OLRB.

The Tribunal granted the reactivation, finding that the substance of the application had not been dealt with in another proceeding.

The Tribunal also granted the union's request to intervene.

The applicant, a Personal Support Worker, developed a back problem and was restricted from heavy lifting.

The respondent nursing home determined she could not perform the essential duties of her position or other available positions due to her lifting restrictions.

The Tribunal found that the respondent met its procedural duty to accommodate by exploring options, and its substantive duty because accommodating the applicant would require adding extra staff or fundamentally changing the job, which constitutes undue hardship.

The application was dismissed.

The applicant filed a Request for an Order During Proceedings to re-activate his human rights application, which had been deferred pending the completion of related proceedings under the Employment Standards Act, 2000.

The applicant provided a copy of the Reasons for Decision of an Employment Standards Officer, indicating the ESA proceedings had concluded.

The respondent did not respond to the request.

The Tribunal granted the request to re-activate the application and directed the respondent to file a Response.

The applicant, who identifies as a gay man, alleged discrimination in employment based on sexual orientation, gender expression, and gender identity during his time as a volunteer with the respondent organization.

The employment relationship ended in June 2011, but the application was not filed until December 2012.

The applicant relied on post-employment incidents, including social media comments and actions in other legal proceedings, to bring the application within the one-year limitation period.

The Tribunal found that the post-employment conduct was not connected to the social area of employment.

As the application was filed more than 12 months after the last incident of employment discrimination and no explanation for the delay was provided, the application was dismissed as out of time.

The applicant, a teacher, went on medical leave due to vision problems and migraines.

While on leave, he requested to attend a year-end class trip to Ottawa and a graduation ceremony.

The respondent school board denied his request to attend the trip in a teaching capacity due to liability and safety concerns, and because medical clarification was provided too late to make arrangements.

For the graduation ceremony, the respondent arranged for the applicant to greet students from the floor rather than the stage, which the applicant initially accepted before requesting to be on stage at the last minute.

The Human Rights Tribunal of Ontario dismissed the application, finding no discrimination.

The respondent had legitimate non-discriminatory reasons for its decisions and did not fail in its duty to accommodate.

The applicant filed an application alleging discrimination in employment on the basis of sex, including sexual harassment and pregnancy.

During a summary hearing convened to address potential delay, the applicant requested to amend the application to change the date of the last incident from May 30, 2012, to December 20, 2012.

The respondent took no position on the amendment.

The Tribunal granted the request to amend the application and directed the respondent to advise whether it agreed to mediation.

Following the successful appeal by the defendant overturning the certification of a proposed class action for unpaid overtime, the defendant sought partial indemnity costs of $300,000.

The plaintiff and the Law Foundation of Ontario argued that no costs or a maximum of $50,000 should be awarded, citing the novel legal issues and public interest nature of the case.

The Court of Appeal acknowledged the novel points of law and access to justice considerations under section 31(1) of the Class Proceedings Act, 1992, but held that the Act does not insulate representative plaintiffs from adverse costs.

The court fixed the costs of the appeal at $60,000 on a partial indemnity scale.

The Greater Essex County District School Board appealed a Divisional Court decision upholding an Ontario Labour Relations Board (OLRB) ruling.

The OLRB found that the school board's construction management activities fell within the definition of 'construction industry' under the Ontario Labour Relations Act, and that receiving compensation for these activities constituted operating a business.

The OLRB also found the school board and other property owners were 'unrelated persons' under the 'non-construction employer' definition.

The Court of Appeal dismissed the appeal, finding the OLRB's decision reasonable and its reasons sufficient.

The appellant sued her former employer for wrongful dismissal and its executive chairman for intentional and negligent infliction of nervous shock.

The motion judge struck the claim against the executive chairman, finding he was protected by a limitation of liability clause in the appellant's employment contract.

On appeal, the Court of Appeal upheld the decision, applying the London Drugs exception to privity of contract.

The Court found the parties intended the limitation clause to apply to the executive chairman, who was acting in the course of his employment when he terminated the appellant.

The appellant appealed a motion judge's finding that the essential character of his dispute with the respondent union concerned the duties of fair representation and fair referral under the Labour Relations Act, 1995.

The appellant sought to separate the issue of his termination to pursue it in the courts.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the termination was part of the ongoing dispute regarding fair representation, and noting that unnecessary bifurcation of proceedings from the same factual matrix should be avoided.

Following a successful appeal by the Attorney General of Canada, the parties made written submissions on costs.

The respondents, who were unsuccessful on the appeal, sought costs on the basis that they were public interest litigants raising issues of broad public importance regarding s. 2(d) of the Charter.

The appellant sought costs following the event.

The Court of Appeal set aside the application judge's costs award and ordered no costs for the appeal, finding that while the case raised issues of broad public interest and the jurisprudence had shifted during the appeal, there was no rationale for awarding costs to unsuccessful public interest litigants.

The appellant challenged a trial judgment upholding his dismissal, arguing that the trial judge substituted different reasons for dismissal than those advanced by the employer and failed to apply the test for voluntariness of his confession.

The Court of Appeal held that the trial judge's factual findings based on the appellant's admissions fully supported the employer's stated concern about trust.

The court further held that the voluntariness issue had not been pleaded and, in any event, the evidence did not support any claim of duress or anything approaching it.

The appeal was dismissed with costs.

In this wrongful dismissal appeal, the employer challenged findings respecting frustration of contract, deduction of Workers’ Compensation Benefits, aggravated damages, and costs, while the employee cross-appealed the deduction issue and the dismissal of punitive damages.

The court held the employer could not invoke frustration after abandoning justification for dismissal, and confirmed that Workers’ Compensation Benefits received during the notice period were deductible but not subject to tax gross-up.

The court set aside aggravated damages because the conduct relied upon fell outside the pleadings as particularized and lacked an adequate evidentiary foundation.

The cross-appeal was dismissed, and the trial costs award was left undisturbed.

During a labour dispute, members of the appellant union distributed leaflets at secondary KMart stores urging a consumer boycott.

The Labour Relations Board ordered the union to refrain from this activity, finding it constituted prohibited picketing under the Labour Relations Code.

The Supreme Court of Canada held that the statutory definition of picketing, which encompassed peaceful consumer leafleting, infringed the guarantee of freedom of expression under s. 2(b) of the Charter.

The Court found the infringement could not be justified under s. 1 because the blanket prohibition on leafleting was overly broad and did not minimally impair the right.

The definition of picketing was struck down, with the declaration of invalidity suspended for six months.

An RCMP officer challenged the constitutionality of legislation excluding RCMP members from the federal public sector labour relations regime, alleging infringements of freedom of association, freedom of expression, and equality rights under the Charter.

The majority held that s. 2(d) protects the formation of independent employee associations and lawful collective activity, but does not require Parliament to include RCMP members within a particular statutory labour relations scheme.

The majority further held that the exclusions did not infringe s. 2(b) or s. 15(1), emphasizing that the Charter generally imposes no positive obligation of legislative inclusion absent exceptional circumstances.

The appeal was dismissed, with a dissent concluding that the exclusion had an anti-associational purpose and failed s. 1 justification.