Employment and Labour Law

The Tribunal received correspondence from several parties requesting the scheduling of cross-examinations for non-expert witnesses and an urgent case management conference.

The Tribunal denied the requests, noting that it did not require further information from the non-expert witnesses at this stage, the relevance of the proposed evidence was questionable, and there had been significant delay in making the request.

The existing schedule was maintained.

The applicant sought to file a reply expert report from Renee Caron in response to reports by Dr. Singh and Dr. Armstrong.

The respondent and an intervenor objected, arguing she did not meet the threshold for an expert under the Mohan test.

The Tribunal noted its broad discretion to admit evidence under section 29(2)(g) of the Pay Equity Act.

Given the novel nature of the case and Ms. Caron's experience as a Pay Equity Commissioner and in developing federal pay equity legislation, the Tribunal accepted her as an expert to file a reply report, leaving issues of weight and reliability to be tested through cross-examination.

The respondent requested that the human rights application be deferred pending the outcome of a related union grievance and WSIB proceedings.

The Tribunal refused to defer the application, noting that the respondent was challenging the timeliness of the grievance, effectively arguing the arbitrator lacked jurisdiction.

The Tribunal also found that the WSIB proceedings involved narrow issues that would not significantly impact the key allegations in the human rights application.

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

She also filed a claim under the Employment Standards Act, which was largely dismissed by an Employment Standards Officer and appealed to the Ontario Labour Relations Board.

The respondents requested that the human rights application be deferred pending the outcome of the OLRB proceeding.

The Tribunal granted the deferral, finding significant factual overlap regarding the reasons for termination and a risk of inconsistent findings if both proceedings ran concurrently.

The applicant filed a human rights application alleging discrimination in employment based on disability.

The Tribunal erroneously deferred the application pending the completion of grievance proceedings that had already been settled.

After almost two years, the applicant requested to reactivate the application.

The respondent objected, citing delay and prejudice.

The Tribunal found that it would be unfair and contrary to section 43(2)1 of the Human Rights Code to dispose of the application due to the Tribunal's own error in deferring it.

The request to reactivate was granted and the matter was directed to mediation.

The applicant filed a human rights application alleging discrimination in employment based on disability.

The respondents requested an order to dismiss four of the five allegations for delay, arguing they were filed outside the one-year limitation period and did not form a series of incidents with the timely allegation.

The Tribunal found that the earlier allegations related to separate and independent incidents, including harassment prior to the injury and failure to accommodate during a previous contract, which were not connected to the timely allegation regarding a refusal to sign a certification form.

As the applicant provided no explanation for the delay, the Tribunal dismissed the earlier allegations.

The Tribunal declined to hold a summary hearing for the remaining allegation, directing it to proceed to a hearing on the merits.

The respondent brought a Request for an Order During Proceedings seeking to declare the applicant a vexatious litigant and to dismiss the application under section 45.1 of the Human Rights Code.

The respondent argued the applicant had filed 27 unsuccessful human rights applications in the past five years and that an Employment Standards Act (ESA) proceeding had already dealt with the substance of the current application.

The Tribunal denied both requests, finding that the current application involved distinct facts and a different respondent, and that the ESA proceeding did not address the substantive allegations of discrimination based on sex or sexual orientation.

The applicant alleged discrimination in employment on the basis of disability after being terminated following absences related to a slip and fall injury and a miscarriage.

The respondent brought a motion to dismiss the application, arguing that these conditions were temporary and did not constitute a disability under the Human Rights Code.

The Tribunal denied the motion, finding that both the slip and fall injury, which took weeks to heal, and the miscarriage were not common or transitory ailments and constituted disabilities under the Code, regardless of whether they had resolved by the time of termination.

The applicant alleged that her employment was terminated as a reprisal for filing an internal sexual harassment complaint against a co-worker, requesting security measures, and filing a human rights application against a previous employer.

The Tribunal found that the respondent had investigated and upheld the sexual harassment complaint, disciplined the co-worker, and accommodated the applicant's security requests.

The Tribunal concluded that the termination, which occurred 10.5 months later, was not a reprisal but was due to the applicant's unmanageable, insubordinate, and unprofessional behaviour in the workplace.

The application was dismissed.

The Tribunal issued a Notice of Intent to Defer the application pending the resolution of a concurrent grievance arbitration proceeding dealing with the termination of the applicant's employment.

The respondent supported deferral, while the applicant did not address the issue.

The Tribunal deferred the application, noting its normal practice of deferring to grievance arbitration processes where there is substantial overlap in facts and human rights issues, as arbitrators have the authority to enforce human rights obligations.

The applicant filed a human rights application alleging discrimination in employment on multiple grounds, including disability, race, and sex.

The Tribunal held a summary hearing to clarify the issues and determine if any allegations had no reasonable prospect of success or were barred by delay.

The Tribunal dismissed the majority of the allegations, finding they either had no reasonable prospect of success or were filed outside the one-year limitation period without a good faith explanation for the delay.

However, the Tribunal allowed the applicant's core allegation—that his employment was terminated because of his disability—to proceed to a full hearing.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability, related to the respondent's alleged breach of its re-employment obligations.

The Tribunal had previously deferred the application pending the outcome of a related WSIB appeal.

The respondent subsequently advised the Tribunal that it would not continue its WSIB appeal.

Finding that the WSIB proceeding had concluded, the Tribunal ordered the human rights application reactivated and directed the parties to mediation.

The applicant filed an application under the Pay Equity Act regarding a pay equity plan for non-union employees.

The Tribunal previously ordered the applicant to serve notice of the application on all former non-union employees eligible for pay equity adjustments.

The applicant notified four individuals but failed to confirm if there were other eligible former employees.

The Tribunal directed the applicant to confirm compliance by September 18, 2015, failing which the application may be dismissed.

The employer brought preliminary motions to dismiss several grievances filed by Operational Managers regarding their pay, arguing the grievances were untimely and beyond the Board's jurisdiction.

The grievances raised issues such as salary compression, pay on promotion, and credit for acting assignments.

The Board dismissed the portions of the grievances claiming an entitlement to a review of experience for a 'better than average' promotional increase, finding no arguable breach of policy.

However, the Board allowed the grievances relating to breaks in service during acting assignments and the maintenance of a 3% differential above direct reports to proceed to a hearing on the merits, finding they raised arguable continuing grievances within the Board's jurisdiction.

The grievor, a Group Manager Audit with the Ministry of Finance, grieved his termination for conflict of interest.

The employer alleged he operated a private accounting and bookkeeping business for various clients, including some he audited, while employed by the Ministry.

The grievor denied the allegations, claiming the business belonged to his brother.

The Public Service Grievance Board found the grievor's evidence lacked credibility and concluded he had operated the business, issued clearance certificates to his own clients who were suppressing sales, and used his position for personal gain.

The Board held this was a serious conflict of interest and breach of trust justifying dismissal.

The grievance was dismissed.

The employer brought a preliminary motion to dismiss the grievor's pay on promotion grievance on the basis of delay.

The grievor filed the grievance in April 2003, complaining about compensation for acting assignments and promotions dating back to 1998.

The grievor argued he only became aware of the relevant policies in March 2003.

The Board found the grievor's explanation for the delay credible and reasonable, noting he acted promptly upon becoming aware of the policies.

The Board concluded that the employer would not be inevitably prejudiced by the delay and dismissed the preliminary motion, allowing the grievance to proceed to a hearing on the merits.

A group of psychiatric nurses challenged the pay equity plan negotiated between their union (OPSEU) and the employer (Management Board Secretariat), alleging it contravened the Pay Equity Act.

The plan utilized a policy-capturing methodology involving factor analysis and multiple regression to determine job values and select male comparators.

The applicants argued that the methodology, specifically the modification of factors and the presence of negative regression coefficients, failed to adequately measure and positively value female work, thereby leaving gender bias in the system.

The Tribunal dismissed the application, preferring the statistical evidence of the respondents' experts, and found that the applicants failed to demonstrate that the decisions of the working group were unreasonable or that the plan contravened the Act.

The Law Society of Upper Canada applied to revoke a Review Officer's Order regarding its Pay Equity Plan.

The Tribunal found that the Review Officer erred in determining the job rate for lawyer job classes, as the Law Society's merit compensation plan qualified for an exception under section 8(1)(c) of the Pay Equity Act.

The Tribunal also found that the Director of Continuing Legal Education was not a female job class and that the first Faculty Instructor was appropriately included in the same job class as other instructors.

Finally, the Tribunal held that while widening the pay gap after the effective date of the Act is a breach of section 13(11), the Law Society's early payment of adjustments might mean no further payout is required.

The grievor, a bargaining unit employee, filed a grievance seeking reclassification to a position within the Management Compensation Plan.

The employer objected to the jurisdiction of the Grievance Settlement Board, arguing it could not grant the requested remedy, and subsequently objected to the jurisdiction of the Public Service Grievance Board, arguing the matter was a question of status for the Public Service Labour Relations Tribunal.

The Public Service Grievance Board held that neither the Public Service Act nor its regulations prevented jurisdiction, and that denying a hearing would be contrary to progressive labour relations and legislative intent.

The Board concluded that the Classification Rating Committee was the appropriate forum to hear the classification grievance and directed the grievor to apply for a hearing before it.

The grievor alleged she was improperly demoted when she was removed from a position in the Management Compensation Plan and placed into a bargaining unit position.

The employer argued the Public Service Grievance Board lacked jurisdiction because the grievor was now in the bargaining unit, and that the Ontario Public Service Labour Relations Tribunal should determine her status.

The Board held that it, or a Classification Rating Committee, has jurisdiction to hear the grievance because the grievor would not be permitted to pursue her grievance before the Grievance Settlement Board or the Tribunal, and the event giving rise to the grievance occurred while she was in the Management Compensation Plan.