Employment and Labour Law

The defendant employer was charged under the Occupational Health and Safety Act following a fatal boat crash that killed two guests and injured an employee guide.

The Crown alleged the employer failed to maintain the boat's steering friction adjuster and failed to ensure the guide used an engine shut-off lanyard.

The court acquitted the defendant on both counts.

The court found reasonable doubt regarding whether the loose steering was caused by a lack of maintenance or operator preference.

Furthermore, the court held that the requirement to use protective devices 'as prescribed' strictly means prescribed by regulation, and no such regulation existed for lanyards in the guiding industry.

The applicant filed a human rights application alleging discrimination in employment based on age and family status, as well as reprisal.

The application was deferred pending the outcome of an Employment Standards Act claim before the Ontario Labour Relations Board (OLRB).

Following the OLRB's decision, the applicant requested to reactivate the application, and the respondents requested its dismissal under section 45.1 of the Human Rights Code.

The Tribunal found that the OLRB proceeding appropriately dealt with the substance of the applicant's allegation that his termination was discriminatory on the basis of family status, as the OLRB found his request for parental leave was a factor in his termination.

However, the Tribunal held that the OLRB did not deal with the pre-termination allegations of family status discrimination, age discrimination, or reprisal.

The Tribunal dismissed the termination allegation but allowed the remaining allegations to proceed, ordering the applicant to provide further particulars.

Appeal concerning whether terminated members of a defined benefit pension plan are entitled to immediate distribution of a proportional share of actuarial surplus on a partial wind-up.

The Court held that the applicable standard of review of the Financial Services Tribunal’s interpretation of s. 70(6) of the Pension Benefits Act was correctness.

Applying the modern principle of statutory interpretation to the text, scheme, and purpose of the legislation, the Court concluded that s. 70(6) requires the realization and distribution of the affected members’ pro rata share of surplus as of the effective date of partial wind-up, if they are otherwise entitled.

The appeal was dismissed with costs.

On an appeal from judicial review proceedings, the court considered the standard of review applicable to a labour arbitrator’s interpretation of a collective agreement governing hiring hall dispatches in the construction industry.

The arbitrator had concluded that dispatch and name-hire provisions limited the employer’s otherwise broad management right to hire and select workers, and that the employer breached the agreement by refusing to employ a properly dispatched, qualified union member who had not been terminated for cause.

The court held that the appropriate standard of review was reasonableness, determined through the pragmatic and functional approach, and that the certiorari language in the governing statute did not displace that analysis.

Applying reasonableness, the court found the arbitrator’s interpretation rational and within the range of acceptable outcomes, restored the award, and granted costs to the union throughout.

The appellant oral surgeon appealed a trial judgment enforcing a handwritten non-competition clause that barred him from practising within five miles of the respondent's office for three years after leaving an associate position.

The Court of Appeal held that although the respondent had some proprietary interest in regular referring dentists, this was not an exceptional employment case justifying a broad non-competition covenant.

Applying the governing framework for restrictive covenants in employment contracts, the court emphasized that non-competition clauses will generally not be enforced where a non-solicitation clause would adequately protect the employer's legitimate interests.

The appellant's role was that of a junior associate, he did not personify the practice, and no confidential information or trade secrets justified the broader restraint.

The appeal was allowed, the action dismissed, and costs awarded to the appellant.

The appellant employer challenged a labour arbitration and Divisional Court ruling concerning accommodation of an employee's religious holy days.

The court held that an employer may satisfy its duty to accommodate religious observance through appropriate scheduling changes without first proving that paid leave would cause undue hardship.

The court found the arbitration board patently unreasonable in characterizing compressed work week days as vacation benefits.

Although the policy had a discriminatory effect to the limited extent it failed to accommodate consecutive holy days, the employer fully met its duty by allowing the employee to bank compressed work week days for use as needed.

The appeal was allowed, the Divisional Court order was set aside, and judicial review was granted.

The trustee appealed the dismissal of its application concerning a bankrupt's pending unjust dismissal award under the Canada Labour Code.

The court held that the unjust dismissal claim was property within the meaning of the Bankruptcy and Insolvency Act, and damages for lost wages could be characterized as wages, but the treatment of such compensation was governed by s. 68 rather than automatic vesting under ss. 67 and 71.

The court further held that the current version of s. 68 applied, that a trustee could invoke s. 68 after the bankrupt's discharge, and that failure to complete the s. 68 procedure did not bar interim protective relief.

The trustee was not entitled to intervene in the labour arbitration to pursue costs.

The appeal was allowed and the wage-related award was ordered paid into court pending determination under s. 68.

In this wrongful dismissal appeal, the appellants challenged a trial judgment awarding damages for dismissal without cause.

The court held that the respondent was a key, valuable and trusted employee who stood in a fiduciary relationship to his employer and was required to act with loyalty, good faith, honesty, and full disclosure.

By secretly pursuing a business opportunity for his own company while employed, using employer time and equipment, and intending to compete with the employer without disclosure or consent, the respondent breached those fiduciary duties.

Pre-employment comments about an aspiration to start a future business did not satisfy the later duty of full disclosure.

The appeal was allowed, the trial judgment was set aside, and the action was dismissed with costs.

The appellant challenged the trial judgment in an employment-related unjust enrichment dispute arising from extra hours worked in exchange for equivalent time off.

The court held that there was a juristic reason for the respondent's retention of the benefit because the parties' contract contemplated compensation through equivalent time off.

Since the appellant voluntarily placed himself beyond the point of enforcing that contractual entitlement, he could not establish the absence of juristic reason.

The appeal was dismissed without costs.

The plaintiff appealed the dismissal of his defamation and wrongful dismissal actions arising from a workplace sexual assault allegation, while the defendant cross-appealed the dismissal of her sexual assault counterclaim as statute-barred.

The Court of Appeal held that the trial judge made no palpable and overriding error in accepting the defendant's evidence, rejecting the plaintiff's credibility, dismissing the plaintiff's claims, and awarding costs.

However, the court allowed the cross-appeal because the plaintiff had not pleaded the limitation defence under s. 45(1)(j) of the Limitations Act, and a trial judge should not decide the case on an unpleaded affirmative defence that may cause prejudice.

The defendant was therefore awarded $100,000 in damages on the counterclaim.

The appellant appealed an order staying his defamation action against a school board and related individuals.

The Court of Appeal held the essential character of the claim arose from disciplinary and termination-related matters governed by a collective agreement containing grievance and binding arbitration provisions.

Applying the labour arbitration exclusivity jurisprudence, the court found the appellant could not avoid arbitral jurisdiction by framing the claim as defamation.

The constitutional argument under s.96 was also rejected, and the appeal was dismissed.

On an employer's appeal from the dismissal of its appeal from a Board of Inquiry decision, the court considered the legality under the Human Rights Code of a workplace alcohol and drug testing policy for employees in safety-sensitive positions.

The court held that substance abuse, including perceived substance abuse, is a handicap and applied the unified three-step BFOR analysis from Meiorin to assess whether the impugned rules were justified.

Random drug testing, pre-employment drug testing, and mandatory disclosure, reassignment and reinstatement rules were discriminatory and not justified, but random alcohol testing could be justified as a BFOR if sanctions for a positive result were individually tailored.

The court also held that the Board lacked jurisdiction to inquire into the policy's drug-testing provisions, set aside the finding of a s. 13(1) breach, upheld the mental anguish award, and otherwise dismissed the appeal.

The appeal concerned whether a labour arbitrator had exclusive jurisdiction to determine an employee’s entitlement to long term disability benefits payable under an insurance policy maintained pursuant to a collective agreement.

The court held that recent jurisprudence, including Pilon, did not extend arbitral jurisdiction to a dispute between an employee and an insurer over policy benefits where the issue was the insurer’s liability under the policy.

The arbitrator also erred in joining the insurer as a party defendant where no dispute properly implicating the insurer was before him.

The appeal was dismissed and the Divisional Court’s order quashing the award was upheld.

The appellants challenged amendments to Bill 160 that removed principals and vice-principals from teacher bargaining units, excluded them from the provincial labour relations regime, and ended their statutory membership in teachers' organizations.

They argued the amendments were a reprisal for participation in a province-wide protest against education reform legislation and therefore infringed freedom of expression and freedom of association under ss. 2(b) and 2(d) of the Charter.

The court held that the appellants failed to prove, on a balance of probabilities, that the legislative purpose was punitive rather than corrective, and further held that exclusion from a statutory collective bargaining scheme and removal of mandatory statutory union membership did not violate s. 2(d).

The appeal was dismissed with costs.

The appellants refused to hire or dismissed the complainants because of physical anomalies (spinal anomalies and Crohn's disease) that did not result in functional limitations.

The complainants alleged discrimination based on handicap under s. 10 of the Quebec Charter of Human Rights and Freedoms.

The Supreme Court of Canada held that the definition of 'handicap' includes physical anomalies that do not result in functional limitations, as well as perceived handicaps.

The Court emphasized a multidimensional approach that considers the socio-political dimension of handicap, focusing on human dignity and the right to equality.

The appeals were dismissed.

The appellant challenged an order holding that findings of an Umpire under the Unemployment Insurance Act barred his constructive dismissal action against his public-sector employer.

The Court of Appeal held that the Umpire had decided the same factual issue central to the civil action, namely whether the employer had just cause based on simultaneous full-time employment and duplicate expense claims.

The court further held that a discharge after a criminal preliminary inquiry does not determine the same issue because it addresses only whether sufficient evidence exists to commit for trial.

Although courts retain discretion to refuse issue estoppel where its application would cause unfairness or injustice, the appellant failed to demonstrate any actual unfairness in the procedures before the Board of Referees and the Umpire.

The appeal was dismissed with costs.

Appeal from a summary judgment decision in a dispute involving a former senior employee who joined a competitor after signing a Canada-wide non-competition covenant and allegedly soliciting customers and employees.

The court held the evidentiary record was insufficient to declare the restrictive covenant enforceable on summary judgment, but equally insufficient to declare it unenforceable where the responding parties had not moved for that relief and genuine issues remained regarding customer relationships and geographic scope.

The court further held that the solicitation record disclosed genuine issues for trial concerning two groups of dentist customers, but not a third group.

The costs order was varied in light of the appellant's partial success, with each side to bear its own costs of the summary judgment motions and the appeal.

The respondent was appointed as a Commissioner of the Public Utilities Board, holding office during good behaviour until age 70.

The provincial government subsequently passed legislation restructuring the Board and abolishing the respondent's position without providing compensation.

The respondent sued for damages for breach of contract.

The Supreme Court of Canada held that the employment relationship between the Crown and a senior civil servant is contractual.

While the legislature has the power to eliminate the position, it cannot escape the financial consequences of breaching the employment contract without explicit statutory language extinguishing the right to compensation.

The appeal was dismissed, affirming the award of damages equivalent to two and one-half years of salary plus pension benefits.

The appellant union's members were locked out by the respondent employer.

Union members distributed leaflets outside the premises of four non-employer respondents who sold the employer's products.

The union members did not trespass or block vehicles.

The respondents obtained an injunction against the union, arguing the leafleting was prohibited secondary picketing under s. 104(2) of the New Brunswick Industrial Relations Act.

The Supreme Court of Canada allowed the appeal, holding that s. 104(2) must be interpreted in light of s. 5(4) of the Act and the Charter to prohibit only persuasion that is coercive, intimidating, threatening, or intended to cause undue influence, and therefore does not prohibit peaceful leafleting.

The claimant, a female forest firefighter, was dismissed after failing a newly implemented aerobic fitness test.

The test had a disproportionately negative effect on women.

The arbitrator found adverse effect discrimination and reinstated her, but the Court of Appeal overturned this decision.

The Supreme Court of Canada allowed the appeal, replacing the conventional bifurcated approach to discrimination with a unified three-step test for bona fide occupational requirements (BFOR).

The Court found the government failed to establish that the aerobic standard was reasonably necessary to identify those able to perform the job safely and efficiently, and failed to show it could not accommodate the claimant without undue hardship.