Brian P. Smeenk

The applicant filed a human rights application alleging discrimination based on sexual orientation and reprisal, claiming constructive dismissal following whistleblowing and a homophobic remark.

The Tribunal issued a Notice of Intent to Defer because the applicant had also filed concurrent grievances under a collective agreement raising the same human rights issues.

Applying the principle that grievance arbitrators have the authority and responsibility to enforce human rights legislation, the Tribunal deferred the application pending the completion of the grievance process.

The applicant sought judicial review of an arbitrator's award regarding the contracting out of hospital sterilization services, arguing it was denied natural justice because it did not receive formal notice of the hearing.

The Divisional Court dismissed the application, finding that the applicant had actual notice of the hearing, its timing, and the issues in dispute, but chose not to attend.

The court also noted that the contracting out had been completed and there was no longer any tangible dispute between the parties, making judicial review inappropriate.

The applicant union brought an application for judicial review of an arbitration award that dismissed a policy grievance concerning early retirement and separation allowances during long-term layoffs.

The Arbitrator had concluded that the specific benefits in Article 10.14 of the collective agreement only applied to layoffs resulting from integrations and rationalizations, not general layoffs.

The Divisional Court dismissed the application, finding the Arbitrator's interpretation of the collective agreement was reasonable and fell within a range of acceptable outcomes.

The applicant requested a reconsideration of a previous Tribunal decision that dismissed her human rights application under section 53(8) of the Code.

The Tribunal denied the request for reconsideration because it was filed more than two months after the 30-day deadline and the applicant provided no explanation for the delay.

Furthermore, the Tribunal found that even if the request had been timely, it did not meet the criteria for reconsideration as it merely attempted to re-argue the same issues without presenting new determinative evidence or demonstrating a conflict with established jurisprudence.

The applicant filed an application alleging discrimination and reprisal on the basis of disability.

The respondents requested early dismissal on the basis that the substance of the application was the subject of two previous complaints filed with and dismissed by the Ontario Human Rights Commission.

The Tribunal found that the current application dealt with the same allegations of disability discrimination, harassment, reprisal, and failure to accommodate as the previous complaints.

The application was dismissed for lack of jurisdiction under section 53(8) of the Human Rights Code.

The applicant, who was dismissed for poor performance, alleged that his termination and a prior refusal of annual leave were discriminatory based on race, colour, ancestry, place of origin, citizenship, ethnic origin, and creed.

The Tribunal found that the applicant failed to establish on a balance of probabilities that any prohibited ground was a factor in the respondent's actions.

The evidence supported the respondent's position that the dismissal was the result of progressive discipline for poor performance.

The application was dismissed.

Following the dismissal of the applicant's application for judicial review of an Ontario Human Rights Commission decision, the court determined the issue of costs.

The respondents sought costs, while the applicant argued that a costs award would impose a significant burden.

Applying the principles of fairness and reasonableness, the court fixed costs at $3,500 for the Commission and $3,500 for the Hospital and doctor, payable by the applicant.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to deal with her discrimination complaint against her former employer.

The Commission had exercised its discretion under section 34 of the Human Rights Code to dismiss the complaint because it was filed more than six months after the events giving rise to it, and the delay was not incurred in good faith.

The Divisional Court dismissed the application, finding no breach of procedural fairness and concluding that the Commission's exercise of discretion was not patently unreasonable.

The applicant, Ensign Security Services Inc., acquired security contracts at three sites in Ottawa previously held by Pinkerton's and Burns.

The United Steelworkers of America held bargaining rights for the predecessor employers' employees, while the Canadian Security Union held municipal-wide bargaining rights for Ensign's employees.

Ensign applied to the Ontario Labour Relations Board under sections 64 and 64.2 of the Labour Relations Act to resolve the conflict in bargaining rights resulting from the intermingling of employees.

The Board found that section 64.2 acts as a doorway to section 64, and does not mandate site-specific bargaining rights that override broader-based rights.

To avoid severe fragmentation and administrative difficulties, the Board declared that Ensign is no longer bound by the predecessor's collective agreement with the Steelworkers, and that the Canadian Security Union is the bargaining agent for all Ensign security guards in the region.

The applicant union applied for certification.

A group of employees objected, arguing that section 8(4) of the Labour Relations Act violated the Charter and that the Board's interpretation of the certification application date denied natural justice.

The Board refused to hear the Charter argument because the objectors failed to notify the Attorneys General.

The Board rejected the natural justice arguments, following its previous decision in Hemlo Gold Mines Inc. The Board also declined to exercise its discretion to order a representation vote, finding no compelling reasons to do so given the union's clear majority support.

The union was certified as the bargaining agent.

The applicant union applied for certification to represent security guards employed by the responding party.

Shortly after the application, the responding party lost its contract and an intervenor took over as a successor employer.

The intervenor argued that a representation vote should be held because the workforce had changed and expanded since the application date.

The Board allowed the intervenor to participate but dismissed the request for a representation vote, finding that the 'build-up' principle did not apply as the workforce increase was minimal and the original employees remained sufficiently representative.

The Board granted interim certification to the union.

The applicant union applied for certification of a bargaining unit of security guards.

The parties disputed the geographic description of the bargaining unit, with the union proposing a unit covering regional municipalities and counties, while the employer proposed a unit limited to specific municipalities.

The Board found the employer's proposed unit appropriate, consistent with its general practice of describing non-construction bargaining units by municipality.

As the union had sufficient membership support regardless of the resolution of remaining disputes over managerial exclusions, the Board granted interim certification and referred the list issues to a Labour Relations Officer.

During a hearing on a Charter challenge to section 12 of the Labour Relations Act, the respondents objected to a Board Member sitting on the panel due to comments he made in the Ontario Legislature 20 years prior.

The Board dismissed the bias objection, finding the comments did not create a reasonable apprehension of bias.

The Board also ruled that expert evidence concerning the scope of freedom of association in other countries was inadmissible during the section 2(d) phase of the hearing, though the proposed expert was found qualified to testify on comparative European labour law in the section 1 phase.

The respondents in several certification applications brought a motion to postpone the Board's hearing of a Charter challenge to section 12 of the Labour Relations Act.

The respondents argued the hearing should be adjourned pending the Ontario Court of Appeal's decision in Cuddy Chicks, which would determine the Board's jurisdiction to hear Charter issues.

The Board denied the requested postponement, emphasizing the importance of expedition in labour relations matters and noting that the current state of the law recognized the Board as a court of competent jurisdiction capable of applying the Charter.

The union applied for certification.

The employer and objecting employees alleged misconduct in the collection of membership evidence, including non-payment of the required $1 fee by one employee and misrepresentations by union organizers.

The Board found that one employee did not pay the fee and rejected his card, and gave no weight to cards collected by one organizer due to his misconduct and lack of credibility.

However, the remaining valid cards left the union in a vote position.

The Board dismissed the union's request for automatic certification under section 8, finding the employer's intemperate comments did not prevent the ascertainment of employees' true wishes.

A representation vote was ordered.

The union applied for certification and won a pre-hearing representation vote by a margin of one ballot.

The employer filed an untimely objection, arguing the vote should be set aside because a union supporter incorrectly told an eligible employee he could not vote, and that employee did not vote.

The Board dismissed the objection, finding the employer failed to meet the reasonable diligence test for extending the time limit.

The Board further noted that even if timely, the objection would fail because the employee had adequate official notice of his right to vote and the means to clarify his eligibility.

A certificate was issued to the union.

The applicant union applied for certification to represent employees of the respondent.

The parties partially agreed on the bargaining unit description but disputed the exclusion of 'working foremen' as managerial personnel and the inclusion of a specific employee based on hours worked.

The Board appointed a Labour Relations Officer to inquire into these disputed individuals.

The Board declined the applicant's request for a clarity note restricting the technical staff exclusion to specific classifications.

The Board found sufficient overlap between union membership cards and an employee petition opposing the union to make the petition relevant, necessitating a hearing on its voluntariness.

The matter was adjourned to hear evidence on the petition's voluntariness and newly raised allegations of misconduct by both parties.

The employer applied for a declaration that its employees engaged in an unlawful strike by boycotting overtime during collective bargaining, prior to the release of a 'no board' report.

The Ontario Labour Relations Board declared the overtime boycott an unlawful strike under the Labour Relations Act.

The parties resolved the matter without a formal hearing, with union officials agreeing not to condone the activity and to advise employees of its illegality.

The complainant employer association alleged that the respondent union and employee bargaining agency violated the Labour Relations Act by refusing to bargain and execute an appendix to the provincial collective agreement.

The union argued that signing the appendix would violate its international constitution regarding the use of vehicles and travel cards.

The Board held that a union cannot contract out of the Labour Relations Act through its constitution.

Finding a continued breach of the duty to bargain in good faith, the Board ordered the employee bargaining agency to execute the appendix.

The union applied for certification to represent employees of a child and family services agency.

The parties disputed the inclusion of two classifications in the bargaining unit.

The Board found that 'househeads' exercised managerial functions, including effective recommendation on hiring, discipline, and performance evaluation, and excluded them due to a conflict of interest.

However, the Board found that 'child care teachers' shared a community of interest with the other child care workers, noting similarities in conditions of employment and functional interdependence, and included them in the bargaining unit.