Employment and Labour Law

The applicants, trustees of multi-employer pension plans, sought judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of confidential actuarial valuation reports to a representative of a rival union.

The applicants argued that disclosure would cause harm during the construction industry's 'raiding season'.

The Divisional Court allowed the application and set aside the commissioner's order, finding that the commissioner applied an overly burdensome standard of proof and an overly stringent test for causation of harm under s. 17(1) of the Freedom of Information and Protection of Privacy Act.

The court held that the applicants only needed to establish a reasonable expectation of probable harm, which was met given the highly competitive context of union raiding.

The applicant employer sought judicial review of a labour arbitrator's decision that mitigated the termination of an employee who engaged in a sophisticated scheme of job-related thefts.

The arbitrator had reinstated the employee for the purpose of applying for long-term disability benefits, finding that the employee's undiagnosed PTSD and depression 'clouded' the thefts.

The Divisional Court allowed the application and quashed the award, holding that the arbitrator's decision was unreasonable because it relied on contradictory findings regarding the medical evidence and failed to establish a clear nexus between the PTSD and the premeditated thefts.

The appellant appealed a Small Claims Court decision dismissing her claim for damages for constructive dismissal and unpaid wages against her former employer.

The trial judge found she was constructively dismissed but that her employment contract governed the notice period, which she had received.

The trial judge also found she had abandoned her claims for unpaid wages during the trial.

The Divisional Court found no palpable and overriding error in the trial judge's conclusion that the appellant had abandoned her claims for specific monetary compensation, as she presented no documentary quantification and explicitly stated she was not expecting compensation for them.

The appeal was dismissed.

The appellant employee was placed on a temporary unpaid layoff and later claimed constructive dismissal.

The motion judge granted summary judgment to the employer, finding the employee had acquiesced to the layoff.

On appeal, the Divisional Court set aside the order, holding that the motion judge erred in law by finding acquiescence without first analyzing the terms of the employment contract to determine if the employer had the right to lay off the employee, as required by the Supreme Court's two-step test in Potter.

The applicant brought an application for judicial review regarding his employment with the Ontario Provincial Police.

The Divisional Court dismissed the application as an abuse of process, finding that the applicant was attempting to resurrect claims that had been fully resolved by a prior Memorandum of Settlement.

The settlement included a comprehensive release and a complete bar to any further proceedings, including judicial review.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her claim that her employer failed to reasonably accommodate her disability.

The HRTO had found that the employer attempted to accommodate the applicant, but she failed to participate in the cooperative accommodation process.

The Divisional Court dismissed the application, finding that the adjudicator made no error of law and reached a reasonable conclusion supported by the evidence.

The applicant employer sought judicial review of a labour arbitrator's decision ordering him to pay $704 in unpaid wages to an employee.

On judicial review, the employer argued for the first time that he was not obliged to pay the employee because the employee lacked a valid work permit under the Immigration and Refugee Protection Act.

The Divisional Court declined to hear this new constitutional and statutory argument, noting it was not raised before the arbitrator, the evidentiary record was inadequate, and no notice of a constitutional question was served.

The court dismissed the application, finding the arbitrator's reasons regarding the unpaid wages were transparent, consistent, and reasonable.

The defendant employer appealed a summary judgment awarding the plaintiff employee eight months' pay in lieu of notice for wrongful dismissal.

The motion judge had found the termination clause in the employment contract invalid for violating the Employment Standards Act by excluding benefits during the notice period.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motion judge's interpretation of the contract, his assessment of the plaintiff's mitigation efforts, or his costs award.

The plaintiff's cross-appeal seeking a longer notice period based on prior service with a predecessor employer was also dismissed.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision that reinstated an employee terminated shortly after participating in a union organizing drive.

The Board found the employer failed to prove the termination was free of anti-union animus.

On judicial review, the employer argued the Board breached procedural fairness by refusing to admit new evidence of poor job performance at the hearing, and that its credibility findings were unreasonable.

The Divisional Court dismissed the application, holding that the Board's refusal to admit late evidence accorded with its rules and procedural fairness, and that its findings of fact and credibility were reasonable and well-supported by the evidence.

The appellants appealed a Small Claims Court judgment awarding the respondent $25,000 for breach of contract.

The central issue was the interpretation of a termination provision in their memorandum of understanding, which required one year's notice.

The appellants argued the notice was conditional on an agreement with the Toronto District School Board (TDSB).

The Divisional Court upheld the Deputy Judge's finding that the one-year notice requirement was not a condition precedent dependent on a TDSB agreement, but rather a commercially reasonable term.

The appeal was dismissed.

The moving party university brought a motion to set aside a decision of a single judge of the Divisional Court who refused to strike an affidavit filed by the responding party association on an application for judicial review of a labour arbitration award.

The arbitration upheld the termination of a professor for failing to grade students objectively.

The Divisional Court panel found that the motions judge erred in law by admitting the affidavit, as it did not meet the narrow Keeprite exception for admitting new evidence on judicial review.

The motion was granted and the affidavit was struck in its entirety.

The applicant, an RCMP officer on long-term sick leave, sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB).

The HPARB had upheld a decision by the College of Physicians and Surgeons' Inquiries, Complaints and Reports Committee to take no further action on her complaint against an RCMP Occupational Health Services Officer.

The applicant alleged the physician arbitrarily changed her medical profile from employable with restrictions to unemployable without examining her.

The Divisional Court dismissed the application, finding the HPARB's conclusion that the physician performed a reasonable review of the medical information and exercised appropriate clinical judgment was reasonable.

The defendants appealed a motion judge's decision to certify four additional common issues in two related class actions brought by former employees regarding the distribution of a pension plan surplus.

The Divisional Court dismissed the appeal regarding the viability of the cause of action under s. 8(10) of the Pension Benefits Standards Act, 1985, finding it was not plain and obvious that the employer-administrator was not in a conflict of interest.

However, the court allowed the appeal in part to amend the class definition in one of the actions to remove restrictive and vague language.

The Attorney General for Ontario sought judicial review of an arbitration award between CUPE Local 27 and the Greater Essex County District School Board, arguing the arbitrator erred in interpreting s. 177 of the Education Act.

The Divisional Court dismissed the application for the reasons given in a related Stated Case (2016 ONSC 2361), finding the result was the same regardless of whether the standard of review was correctness or reasonableness.

Costs of $5,000 were awarded to CUPE Local 27.

The applicant employer sought judicial review of a Grievance Settlement Board arbitration award that ordered rectification of a collective agreement's recognition clause.

The Board found that exclusionary language regarding office and technical staff had been inserted by mistake.

The Divisional Court held that the standard of review for an arbitrator's application of the equitable doctrine of rectification is reasonableness.

The Court upheld the Board's decision to rectify the agreement by removing the mistakenly inserted language.

However, the Court found the Board's subsequent interpretation of the rectified clause and its order for the parties to draft new language to be unreasonable, and set aside that portion of the award.

The applicant sought judicial review of a decision by the Human Rights Tribunal of Ontario finding that it had discriminated against the respondent in terminating his employment.

The Divisional Court dismissed the application as premature, noting that the Tribunal had not yet decided the question of remedy in the bifurcated proceeding.

The Court also held that the parties must exhaust the reconsideration process available at the Tribunal before seeking judicial review.

The respondent union brought a motion to strike portions of an affidavit and factum filed by the applicant employer in an application for judicial review of an arbitration award.

The employer alleged the arbitrator breached natural justice by deciding a classification issue without allowing it to lead evidence.

The court dismissed the motion, finding the affidavit evidence, including an expert report, was admissible as an exception to the general rule against supplementing the record on judicial review, because it was necessary to demonstrate the alleged breach of natural justice.

The Association of Justices of the Peace of Ontario sought judicial review of the provincial government's decision to reject the recommendation of the Justice of the Peace Remuneration Commission regarding the appropriate Industrial Aggregate Index rate for a 2008 salary increase.

The Commission's majority had recommended a compromise rate of 3.3%, which the government rejected in favour of the minority's 2.7% recommendation.

The Divisional Court dismissed the application, finding that the government met the standard of simple rationality by providing legitimate reasons for its decision, including that the majority failed to answer the specific question referred to it and failed to properly weigh the required statutory criteria.

The defendants sought leave to appeal an interlocutory injunction restraining them from soliciting the plaintiff's clients and using its confidential information.

The individual defendants had left the plaintiff's employment to join the corporate defendant, allegedly taking client lists and soliciting clients in breach of non-solicitation agreements.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's application of the strong prima facie case test, the finding of irreparable harm to the plaintiff's business viability, and the balance of convenience.

The applicants sought judicial review of an interest arbitrator's interim award regarding the renewal of collective agreements.

The arbitrator concluded he had jurisdiction to interpret the Competition Act but exercised his discretion to defer those issues to the Competition Tribunal or the courts.

The Divisional Court held that the arbitrator's exercise of discretion was subject to a reasonableness standard of review.

The Court found the arbitrator's decision to defer was reasonable given the Competition Tribunal's specialized expertise, the potential ramifications beyond the parties, and the expedited nature of the interest arbitration process.

The application for judicial review was dismissed.