Employment and Labour Law

The applicant requested the re-activation of his human rights application, which had been deferred pending the conclusion of concurrent WSIB proceedings regarding his workplace injury and subsequent termination.

The applicant argued that excessive delays in the WSIB appeals process warranted re-activation.

The Tribunal reviewed the principles of deferral in the context of the complex WSIB system, noting that while indefinite deferral can cause prejudice, the WSIB proceeding might still address the substance of the application.

The Tribunal ordered that the application remain deferred until a decision is reached by a WSIB Appeals Resolution Officer, with leave to request re-activation if further unreasonable delay occurs.

The Tribunal issued a Notice of Intent to Defer the human rights application pending the conclusion of a grievance arbitration related to the same facts.

The applicant opposed the deferral, while the respondent supported it.

The Tribunal found a clear overlap in the factual issues, specifically the termination of the applicant's employment, and noted that the grievance procedure was well advanced.

To avoid duplicative proceedings, the Tribunal deferred the application pending the completion of the grievance process.

The applicant alleged discrimination on the basis of sex after the respondents posted a Kijiji advertisement seeking a 'female only' server for their fast-food restaurant.

The applicant claimed he was denied consideration for the position because he is male.

The Tribunal found that while the job advertisement itself was discriminatory and violated sections 5 and 23(1) of the Human Rights Code, the applicant failed to establish that he was actually denied consideration for the job because of his gender.

The Tribunal noted the respondents had already hired a male employee before the applicant applied, and found the applicant's job application was not bona fide.

The hearing was bifurcated, with remedy for the discriminatory ad to be determined subsequently.

The applicant filed an application alleging discrimination in employment on the basis of reprisal, claiming he was subjected to escalating harassment after complaining to the owner.

The Tribunal issued a Notice of Intent to Dismiss because the application did not link the alleged harassment to any ground under the Human Rights Code.

The Tribunal found it had no jurisdiction over general claims of unfairness and dismissed the application, as the applicant failed to establish he was claiming or enforcing a right under the Code.

The applicant requested a reconsideration of a previous Tribunal decision that dismissed her human rights application against her former employer.

She argued that the decision conflicted with established jurisprudence regarding corporate liability for an employee's harassment, specifically whether the employee was a 'directing mind' or had a 'significant connection' to the employer.

The Tribunal found that the employee in question did not have supervisory authority or the power to hire, fire, or discipline, and therefore was not part of the directing mind.

The Tribunal also found that the 'significant connection' test did not apply to the facts.

The request for reconsideration was denied.

The applicant, an employee on medical leave, alleged that her union (CUPE) discriminated against her by failing to accommodate her disability, failing to investigate a workplace accident, and failing to communicate with her.

The Tribunal held a summary hearing to determine if the application against CUPE had a reasonable prospect of success.

Applying the Supreme Court's decision in Renaud, the Tribunal found that a union's duty to accommodate only arises if it participates in formulating a discriminatory work rule or impedes an employer's reasonable efforts to accommodate.

Finding no evidence that CUPE did either, or that it treated the applicant differently because of her disability, the Tribunal dismissed the application against CUPE for having no reasonable prospect of success.

The Tribunal also denied the applicant's late request for document production but granted her request to amend the application.

The applicant alleged discrimination in employment on the basis of disability and citizenship after his employment was terminated following a work-related back injury.

The Tribunal found that the respondent failed to accommodate the applicant's disability to the point of undue hardship and improperly deemed him to have abandoned his employment while WSIB return-to-work discussions were ongoing.

The Tribunal concluded that the applicant's disability was a factor in his termination.

The citizenship claim was dismissed for lack of evidence.

The respondent was ordered to pay $10,000 as compensation for injury to dignity, feelings, and self-respect.

The applicant, a combo truck driver, suffered a workplace injury to his shoulder and groin.

After a period of modified work and a return to regular duties, the applicant claimed he was still disabled and requested further accommodation.

The respondent, believing the applicant was malingering and attempting to leverage his injury for better employment terms, refused to offer further modified work and effectively terminated his employment.

The Tribunal found that the issue of the applicant's disability and the initial failure to accommodate had been appropriately dealt with by the WSIB.

However, the Tribunal concluded that the respondent breached both the procedural and substantive components of the duty to accommodate when it refused to engage in further dialogue and terminated the applicant's employment.

The applicant was awarded $15,000 for injury to dignity, feelings, and self-respect, along with compensation for lost wages and retraining costs.

The applicant filed a Request for Order During Proceedings seeking to remove a corporate respondent and add a personal respondent in an application alleging employment discrimination based on pregnancy.

As there was no opposition from the respondents, the Tribunal granted the request pursuant to Rule 1.7(b) of the Tribunal's Rules of Procedure.

The applicant filed an application alleging discrimination in employment on the basis of race and colour, as well as reprisal.

The Tribunal issued a Notice of Intent to Dismiss, questioning whether the allegations fell within its jurisdiction.

The applicant submitted that he was dismissed for breaching a non-competition clause while white employees who did the same were not, and that his dismissal was in retaliation for a harassment complaint.

The Tribunal found it was not plain and obvious that the application fell outside its jurisdiction and directed that the application continue to be processed.

The applicant filed a human rights application alleging discrimination in employment on the basis of race.

The Tribunal issued a Notice of Intent to Dismiss, questioning whether the narrative identified specific acts of discrimination connected to a Code ground.

After receiving the applicant's submissions detailing allegations of unequal pay and differential treatment compared to non-black employees, the Tribunal found it was not plain and obvious that the application fell outside its jurisdiction.

The Tribunal ordered the application to proceed.

The applicant sought to amend his human rights application to include allegations of systemic discrimination and events predating February 2011.

The respondents argued these amendments were prejudicial and that allegations predating October 2011 were untimely.

The Tribunal denied the request to add systemic discrimination and earlier events due to prejudice.

It also dismissed allegations predating June 30, 2011 as having no reasonable prospect of success, since the respondents were unaware of the applicant's disability before then.

The Tribunal found that the July 2011 return to work meeting was not part of a series of incidents and was therefore untimely, with no good faith explanation for the delay.

However, allegations regarding repeated requests for medical documentation were allowed to proceed as a potential series of incidents.

The applicant alleged that she was subjected to age-based harassment by a frontline supervisor at the respondent's fast food restaurant, and that the respondent reprised against her after she complained to corporate head office.

The Tribunal found that the supervisor was not a directing mind of the respondent, and therefore the respondent was not liable for his alleged harassment under section 46.3(1) of the Human Rights Code.

The Tribunal also found that the respondent acted reasonably in response to the applicant's concerns and that no reprisal occurred, as the applicant's complaint to head office was about hours of work, not an attempt to enforce a right under the Code.

The application was dismissed.

The applicant filed a human rights application alleging sexual harassment and solicitation in employment.

She brought a Request for Order During Proceedings to add the alleged harasser as a personal respondent and to clarify the names of the corporate respondents.

The Tribunal granted the request, noting that under section 46.3 of the Human Rights Code, corporations are not vicariously liable for sexual harassment, making it necessary to name the alleged harasser personally.

The Tribunal also amended the style of cause to correctly identify the corporate respondents.

The applicant, a former Client Support Analyst, alleged that her employment was terminated because of her disability (clinical depression).

The respondent maintained that the termination was due to ongoing performance issues and an inability to get along with her supervisor, and that the decision was made prior to her sick leave and without knowledge of her disability.

The Tribunal found the respondent's witnesses credible and concluded that the applicant failed to establish that her disability was a factor in the termination.

The application was dismissed.

The applicant filed an application alleging employment discrimination based on the ground of 'record of offences' after being dismissed when his criminal conviction became known to the respondent.

The Tribunal directed the applicant to clarify the basis of his claim, noting the Human Rights Code defines 'record of offences' as requiring a pardon for criminal convictions.

The applicant argued the Code covers anyone convicted of an offence.

The Tribunal dismissed the application for lack of jurisdiction, holding that the clear and unambiguous definition in the Code requires a pardon under the Criminal Records Act for criminal offences, which the applicant did not have.

The applicant, a housekeeper, alleged she was terminated from her employment because of her pregnancy, contrary to the Human Rights Code.

The respondents claimed she was fired during her probationary period for failing to provide notice of three absences.

The Tribunal found the applicant's evidence regarding her absences credible and concluded that her pregnancy was a factor in the organizational respondent's decision to terminate her employment.

The application against the individual respondent was dismissed as she did not make the termination decision.

The issue of remedy was deferred.

The applicant filed an application alleging discrimination in employment based on disability.

The respondent brought a Request for an Order During Proceedings (RFOP) to amend its Response, which the Tribunal granted as unopposed and reasonable.

The applicant also brought an RFOP seeking production of documents regarding the physical demands of a subway operator position and an order permitting an occupational therapist to enter the respondent's premises to assess those demands.

The Tribunal deferred the applicant's request, scheduling a preliminary teleconference to address the scope of the hearing and the order of evidence.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability and sex, and reprisal.

The applicant brought a Request for an Order During Proceedings to bifurcate the hearing between liability and remedy, arguing that medical evidence was primarily relevant to damages.

The respondent opposed the request, arguing that medical evidence was central to liability issues, including whether the applicant's absence was medically supported and whether he refused reasonable accommodation.

The Tribunal denied the request to bifurcate, finding that there would likely be an overlap of evidence concerning liability and remedy, making bifurcation inappropriate.

The applicant was injured in a motor vehicle accident while working as a taxi driver.

He applied for income replacement benefits, and a preliminary issue hearing was held to determine whether he was 'employed' or 'self-employed' under the Statutory Accident Benefits Schedule.

The insurer argued he was an independent contractor, noting he paid a daily lease for the cab and received no T4.

The arbitrator applied common law tests for employment, finding that the taxi company controlled his hours, owned the vehicle and dispatch system, and bore the primary risk of profit and loss.

The arbitrator concluded the applicant was 'employed' and entitled to base his benefits calculation on the four weeks prior to the accident.