Employment and Labour Law

The appellant appealed from a motion judge's order striking his claim against Transport Canada and Francois Collins under Rule 21.01(3) of the Rules of Civil Procedure without leave to amend.

The motion judge found that the claim, concerning alleged misrepresentations made by the employer to an insurer, related to the terms and conditions of employment and was therefore grievable under the Federal Public Sector Labour Relations Act, placing it outside the court's jurisdiction.

The appellant argued he was no longer an employee, the grievance procedure was unavailable, and procedural fairness was denied.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's jurisdictional analysis or refusal to grant leave to amend.

The Court of Appeal for Ontario allowed the appeal in part, finding that the trial judge erred in failing to address the appellants’ limitations defence to the “TCS Opportunities” claim.

The appellate court held that the TCS Opportunities claim was a new cause of action, added outside the limitation period, and was therefore statute-barred.

The damages award was reduced accordingly.

The court rejected the appellants’ other ground of appeal regarding the drawing of an adverse inference about source code production, finding no error in the trial judge’s approach.

The Court of Appeal for Ontario denied the Crown's application for leave to appeal a Provincial Offences Appeal Court (POAC) decision upholding the City of Greater Sudbury's acquittal on charges under the Occupational Health and Safety Act.

The case arose from a fatal workplace accident involving a road grader operated by a contractor.

The court found that the trial judge and POAC judge properly applied the due diligence defence and that the issues raised by the Crown did not meet the high threshold for a second-level appeal.

The decision clarifies the application of due diligence in occupational health and safety prosecutions, emphasizing that such defences must be directed at the specific violations alleged and that findings of control are primarily factual.

The Ontario College of Teachers brought disciplinary proceedings against a member who made numerous racist, sexist, and homophobic comments to students during class and sent an inappropriate email regarding critical race theory to school staff.

The member admitted to the allegations and pled guilty to professional misconduct.

The Discipline Committee accepted a joint submission on penalty, ordering a reprimand and a four-month suspension.

The Committee noted that the member had already resigned from the College and signed an undertaking never to seek reinstatement or teach in Ontario again.

The member was previously found guilty of professional misconduct for fraudulently claiming sick leave and receiving salary and benefits from his school board while working in another country.

At the penalty hearing, which the member did not attend, the Discipline Committee found the member to be ungovernable due to the nature of his prolonged fraudulent conduct, his failure to reimburse the school board, his lack of remorse, and his complete failure to cooperate with the College's disciplinary process.

The Committee ordered the immediate revocation of the member's Certificate of Qualification and Registration, a written reprimand, and costs of $15,000 payable to the College.

The Member, a school principal, pleaded guilty to professional misconduct for engaging in a pattern of anti-Black racist comments towards staff and falsifying a student's attendance record to cover up one of the incidents.

The Discipline Committee accepted the Agreed Statement of Facts and found the Member guilty of professional misconduct, including making false statements, falsifying records, and engaging in disgraceful, dishonourable, and unprofessional conduct.

The Committee accepted a joint submission on penalty, ordering a reprimand, a 10-month suspension of the Member's Certificate of Qualification and Registration, and the completion of coursework on anti-Black racism, inclusive leadership, and professional ethics.

The Member, a teacher, faced allegations of professional misconduct for bringing a urinary catheter and a diagram of a vulva into a classroom and showing students how to insert it, and for repeatedly making false statements to her school board to obtain paid sick leave while attending court for personal matters.

The Member pleaded no contest to the allegations.

The Discipline Committee found the Member guilty of professional misconduct, including disgraceful, dishonourable or unprofessional conduct.

Accepting a joint submission on penalty, the Committee ordered a reprimand, a two-month suspension of her Certificate of Qualification and Registration, and the successful completion of a course on professional ethics and boundaries.

The Member, an occasional elementary school teacher, was subject to a COVID-19 immunization disclosure policy requiring unvaccinated employees to submit rapid antigen test (RAT) results.

The Member repeatedly submitted false information and duplicate photographs of RAT results to her school board, even after being reminded of the proper procedures.

The Member pleaded no contest to allegations of professional misconduct.

The Discipline Committee found the Member guilty of failing to keep records, issuing false documents, falsifying records, and engaging in disgraceful, dishonourable, unprofessional, and unbecoming conduct.

Accepting a joint submission on penalty, the Committee ordered a reprimand and required the Member to complete coursework on ethical practice.

Anray Limited, a small excavation and concrete company, was charged with three counts under the Occupational Health and Safety Act arising from an incident on August 10, 2010, at a residential renovation project in Toronto.

The charges involved: (1) failure to ensure an excavator was moved safely; (2) failure to ensure the excavator operator was assisted by a signaller; and (3) failure to ensure the operator wore a seat belt.

The defendant was found guilty on Counts 1 and 3, with Count 3 stayed as a contributing element of Count 1.

The defendant was acquitted on Count 2.

The court rejected the defendant's due diligence defence, finding that the company's informal, oral safety practices were insufficient and that the defendant failed to establish reasonable precautions in the circumstances.

The defendant, Reliable Wood Shavings Inc., was charged with four offences under section 25 of the Occupational Health and Safety Act arising from the death of Glen Gallinger, an employee who was asphyxiated while attempting to dislodge sawdust from a silo at a customer's facility.

The court found that the defendant failed to take every precaution reasonable in the circumstances to protect its worker.

The defendant's prescribed procedure was unsafe and impractical, the written instructions were defective, and the defendant failed to address the inherently dangerous conditions at the worksite despite having knowledge of the hazards.

The court found the defendant guilty on counts 2, 3, and 4, with count 1 stayed pursuant to the Kienapple principle.

The plaintiff executive brought a wrongful dismissal action following termination without notice after approximately six years of employment.

The employer initially alleged cause but later conceded none existed.

The court applied the Bardal factors and determined that a reasonable notice period was 13 months but reduced it to 12 months due to limited mitigation efforts.

Damages were calculated using the plaintiff’s most recent accepted salary of $70,000 rather than a prior higher salary.

The court also awarded reimbursement for expenses and RRSP contributions, rejected a limitations defence regarding those expenses, and ordered the defendant to purchase gifted shares from the plaintiff at $160,000.

Following reasons awarding damages for wrongful dismissal, the parties were unable to agree on the calculation of the formal judgment.

The court addressed disputes regarding whether a car allowance formed part of total compensation, whether the damages award should be discounted to reflect net present value, and the proper quantum of costs.

The court held that the car allowance was included in the plaintiff’s total compensation as previously found in the reasons.

It rejected the employer’s argument that the award should be discounted for net present value, confirming that pay in lieu of notice represents damages for breach of the employment contract payable immediately.

The court also declined to vary the previously fixed costs award.

An appeal of a conviction under section 25(2)(a) of the Occupational Health and Safety Act arising from a workplace injury where a temporary employee's foot was crushed under a moving refuse truck wheel, resulting in amputation.

The trial judge convicted the employer of failing to provide adequate information, instruction, and supervision.

The appellate court found the trial judge erred by conflating the actus reus analysis with the due diligence defence, failing to properly evaluate whether the Crown proved the prohibited act beyond a reasonable doubt, and misapplying the law regarding delegation of supervisory responsibilities.

The court ordered a new trial.

The defendant Ministry moved under rule 21.01(1)(a) of the Rules of Civil Procedure to strike the plaintiff’s statement of claim for failure to provide the Crown with 60 days’ notice under s. 7(1) of the Proceedings Against the Crown Act.

The plaintiff had previously filed a judicial review application and affidavit outlining allegations against the Ministry and later indicated verbally that a civil action would follow.

The court held that the documentation provided sufficient particulars identifying the source of the complaint and communicated a dispute that could reasonably be anticipated to result in litigation.

Contextual verbal communication between counsel could be considered to provide context to the written materials.

The court concluded that the notice requirement had been satisfied and dismissed the motion.

The plaintiff brought a motion to set aside a Registrar’s dismissal of a wrongful dismissal action for delay under Rule 48.14(4) of the Rules of Civil Procedure.

The court considered the contextual approach to the Reid factors governing relief from dismissal for delay, including the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendant.

Although there had been a period of more than three years with no steps taken to advance the litigation, the delay resulted from counsel’s inattentiveness and the failure to receive the Registrar’s status notice.

The motion was brought promptly once the dismissal was discovered, and the court found insufficient evidence of actual prejudice to the defendant.

The dismissal order was therefore set aside subject to conditions including suspension of pre‑judgment interest during the delay period, a litigation timetable, and costs payable to the defendant.

Following a wrongful dismissal trial in which the plaintiff recovered damages against the municipal employer but failed against several individual defendants, the court determined the appropriate costs consequences.

Applying Rule 49.10 of the Rules of Civil Procedure, the plaintiff was awarded partial indemnity costs to the date of his settlement offer and substantial indemnity costs thereafter because the judgment exceeded the offer.

The court assessed reasonable hourly rates for counsel and reduced excessive paralegal time and rates while disallowing law clerk administrative costs.

The successful individual defendants were awarded partial indemnity costs for their defence.

A Sanderson order was granted requiring the municipal defendant to pay the costs of the successful individual defendants given the unusual and confusing factual circumstances that justified joining all defendants in the action.

The defendant, Steven Blondin, pleaded guilty to 112 charges of failing to comply with Orders to Pay issued by an Employment Standards Officer under the Employment Standards Act, 2000.

Blondin was the sole director of six Ontario corporations that failed to pay wages totalling approximately $142,000 to 61 employees between March 2007 and October 2009.

The court imposed a fine of $40,000 against Blondin personally and $240,000 against his six corporations collectively, along with a custodial sentence of three months to be served concurrently.

Restitution orders were issued separately.

The defendant's request for house arrest as an alternative to imprisonment was denied as the Provincial Offences Act does not provide for conditional sentences.

The Meaford and District Fire Department was charged with three counts under section 25(2)(h) of the Occupational Health and Safety Act following injuries to two firefighters during a structure fire at Reeds Restaurant on September 9, 2009.

After a directed verdict motion, two charges were dismissed.

The remaining charge alleged the defendant failed to activate an accountability system to track firefighters entering the burning structure.

The court found that while the accountability system was not fully implemented according to the defendant's own Standard Operating Guidelines, an accountability system was in fact activated in various forms at the scene.

The Crown failed to prove beyond a reasonable doubt that no accountability system was activated, as particularized in the charge.

The court dismissed the remaining charge and acquitted the defendant.

The defendants, Strabag Limited (constructor) and Ryszard Pietka (supervisor), were charged with four counts under section 23 of the Occupational Health and Safety Act for failing to prevent a worker from falling into operating machinery by ensuring appropriate guardrail systems or fall protection methods were in place, and for failing to ensure machinery was locked out while a worker was exposed to it.

The incident occurred on January 14, 2010, at the Niagara Tunnel Project when an apprentice electrician fell onto a conveyor belt system while repairing a camera.

The court found the defendants guilty on counts one and four (guardrail charges) but acquitted them on counts two and five (lockout charges).

The court imposed a fine of $30,000 on Strabag and $1,000 on Pietka.

The accused brought a pre-trial application seeking to allow collateral attack on Employment Standards Act orders, alternatively seeking a stay of proceedings for abuse of process, and alternatively seeking a declaration that certain sections of the Employment Standards Act were unconstitutional.

The accused had been charged with failing to comply with orders to pay outstanding wages to employees.

The accused argued he was impecunious and unable to meet the statutory requirement to pay or post a letter of credit to appeal the orders.

The court rejected all three applications, finding that the rule against collateral attack applied, that no abuse of process had occurred, and that the relevant statutory provisions did not violate the Charter.