Brian Shell

The plaintiffs, members of a local union, brought a motion to amend the style of cause in their action against their international and local unions, which were unincorporated associations.

The plaintiffs sought to exclude themselves from the defendant class, arguing that a litigant cannot be both a plaintiff and a defendant in the same action.

The court granted the motion, allowing the plaintiffs to file an amended statement of claim with the proposed style of cause, which explicitly excluded the plaintiffs from the defendant class, and formally appointed the union presidents as representative defendants nunc pro tunc.

The appellant, president of the Amalgamated Transit Union (International), appealed the dismissal of a motion to strike an action brought by four rank-and-file members of the International's Toronto-based affiliate, Local 113.

The members sought a declaration that certain provisions of the International's Constitution were void for unconscionability, arguing these provisions prevented disaffiliation.

The motion judge dismissed the motion to strike but granted a temporary stay pending exhaustion of the International's constitutional amendment process.

The Court of Appeal upheld both the dismissal of the motion to strike and the temporary stay, finding the action presented arguable issues of unconscionability and that the court had jurisdiction to determine the matter.

The appellants, representing regional airline pilots, sued Air Canada pilots for unlawful act conspiracy, alleging they unlawfully prevented the implementation of a merged seniority list.

The trial judge dismissed the claims, finding that some defendants committed no unlawful acts due to their right to dissent, and that the unlawful acts of others did not cause the loss of a chance to implement the list because Air Canada would never have agreed to it.

The Court of Appeal upheld the trial judge's findings, concluding that the rank-and-file members did not breach their union contracts and that the chance of implementing the merged list was de minimis.

The applicant union sought judicial review of an arbitrator's award upholding the termination of three employees for assaulting a replacement worker during a strike.

The arbitrator found the assault was premeditated and unprovoked, and that the employees were dishonest during the proceedings.

The Divisional Court dismissed the application, holding that the arbitrator's findings of fact were reasonable, supported by the evidence, and entitled to the highest level of deference.

The applicant sought judicial review to quash ongoing proceedings before the Ontario Labour Relations Board, arguing that the Board's mid-hearing decision to require will-say statements and limit examination-in-chief to thirty minutes was procedurally unfair.

The Divisional Court dismissed the application, finding no prospect of real unfairness on the record and noting that judicial review of administrative action during a pending hearing should generally be avoided until the hearing is completed.

In an interim decision regarding a human rights application alleging sex discrimination, sexual solicitation, and reprisal, the Tribunal addressed several procedural issues.

The Tribunal permitted the self-represented applicant to call additional medical witnesses provided she filed witness statements by a specified deadline.

The Tribunal also ordered the applicant to disclose relevant medical and psychological records to the personal respondent, finding that her claims for psychological harm and special damages made the records relevant, outweighing her privacy interests.

Confidentiality conditions were imposed on the disclosure.

Finally, the applicant was ordered to provide particulars regarding her claims for out-of-pocket expenses and other allegations.

In an interim decision, the Human Rights Tribunal of Ontario addressed three procedural requests in an application alleging sex discrimination, sexual harassment, and reprisal.

The respondents requested the dismissal of allegations predating September 15, 2008, as untimely.

The Tribunal denied the request, finding that the allegations constituted a 'series of incidents' under section 34(1)(b) of the Human Rights Code.

The Tribunal granted the applicant's request to amend her application and dismissed the personal respondent's request for the production of medical records as premature, noting that disclosure obligations arise only once a hearing is scheduled.

Following the dismissal of a human rights complaint, the respondent union sought costs against the Ontario Human Rights Commission.

The Commission argued the Tribunal lacked jurisdiction because the costs provision in the Human Rights Code had been repealed.

The Tribunal held that it had no inherent jurisdiction to award costs and that the Statutory Powers Procedure Act did not provide jurisdiction because the Tribunal had not made the requisite rules.

Furthermore, the right to seek costs under the repealed Code provision had not accrued prior to its repeal, as the complaint was dismissed after the repeal took effect.

The request for costs was dismissed.

The respondents requested the dismissal of human rights complaints against the employer and the union under s. 45.1 of the Human Rights Code, arguing that the substance of the complaints was appropriately dealt with in a settled duty of fair representation application before the Ontario Labour Relations Board (OLRB).

The Tribunal found that the OLRB settlement appropriately dealt with the substance of the complaint against the union, as the same facts and allegations of discrimination were raised and resolved.

However, the Tribunal declined to dismiss the complaint against the employer, finding that the OLRB proceeding could not adjudicate the employer's alleged failure to accommodate, and the settlement did not express an intention to resolve the underlying human rights issues with the employer.

The Tribunal also struck out new allegations raised by the Commission that were not part of the original complaints.

Following a pre-hearing conference call, the Human Rights Tribunal of Ontario issued an interim decision establishing a process to address preliminary objections raised by the respondents.

The respondents argued that the Tribunal should not hear the matter or that some allegations should be excluded.

The Tribunal ordered the complainant and the Commission to clarify the specific actions alleged to constitute discrimination, and set a timetable for written submissions, documentary evidence, and a one-day oral hearing to determine the preliminary issues.

The applicant sought judicial review to quash a decision of the Ontario Labour Relations Board, which had ruled that a law firm was not in a conflict of interest and could continue representing the respondents.

The law firm had previously represented the applicant local union before it was placed in trusteeship.

The Divisional Court applied the pragmatic and functional approach, determining the standard of review was correctness.

Applying the MacDonald Estate test, the Court found the law firm possessed relevant confidential information and there was a risk of prejudice to the former client.

The application was granted, the Board's decision was quashed, and the law firm was ordered to cease acting against its former client.

The appellants appealed a summary judgment dismissing their third party claim against the respondent.

The motion judge had concluded that Captain Pulley had not been designated within the meaning of an Indemnity and that a paragraph of the Indemnity applied only to claims by non-union members against union members.

The Court of Appeal found that the motion judge improperly weighed evidence and drew inferences of fact, particularly given the absence of evidence based on personal knowledge from the respondent concerning the practice of making designations.

The appeal was allowed, the summary judgment set aside, and costs of $15,000 awarded to the appellant.

The applicant union sought judicial review of a labour arbitrator's decision.

The arbitrator had to determine the meaning of 'without prejudice' in a prior arbitration decision and whether the current case was essentially the same as the prior one.

The Divisional Court applied the pragmatic and functional approach, determined the standard of review was reasonableness, and found the arbitrator correctly applied labour arbitration principles rather than strict common law concepts.

The application for judicial review was dismissed with costs.

The appellants, Air Ontario pilots, brought an action against the respondents, Air Canada pilots, for breach of contract based on the union constitution after the respondents refused to implement an arbitration award integrating their seniority lists.

The Supreme Court of Canada dismissed the appeal, holding that the historical legal fiction of a web of contracts between individual union members is no longer necessary or practical.

Instead, the Court recognized that a trade union is a legal entity capable of entering into a contract of membership with each individual member, and therefore, union members cannot be held personally liable to one another for breaching the union constitution.

The applicant union filed an unfair labour practice complaint alleging that the responding party employer breached its duty to bargain in good faith under section 17 of the Labour Relations Act.

The union contended that the bargaining process for the most recent collective agreement was tainted by bad faith and material misrepresentation.

Following a lengthy hearing, the majority of the Board found no breach of the Act and dismissed the complaint, with one Board Member dissenting.

The Board issued a bottom-line decision to allow the parties to proceed with their collective bargaining relationship, with reasons to follow.

The applicants sought relief under sections 96 and 98 of the Labour Relations Act, 1995 regarding the International union's decision to transfer geographic jurisdiction and its refusal to approve a merger between two locals.

The applicants withdrew two of their applications and amended the third to remove all responding parties except the International.

Local 607 was granted intervenor status.

Local 607 brought motions for an interim order to remove the administration of the hiring hall and union funds from the applicants, and for a declaration that Local 491 had ceased to exist.

The Board dismissed both motions, finding that the requested interim order was substantive rather than procedural, and that the status quo of the hiring hall administration was maintained under section 147(5) of the Act.

The Labourers union and several individual employees challenged the validity of collective agreements entered into between the Carpenters union and five trim carpentry companies based on voluntary recognition.

The challenges were brought under section 66 of the Labour Relations Act, which requires the incumbent union to prove it was entitled to represent the employees at the time the agreements were signed.

The Board found that the Carpenters union's evidence of employee support, consisting of stale membership cards and a poorly attended ratification vote held six months prior to the agreements, was insufficient to meet the statutory onus.

The Board declined to exercise its discretion to dismiss the applications or order a representation vote, and rejected arguments that individual employees were denied natural justice.

The applicant filed an application to terminate the responding party's bargaining rights.

The responding party raised preliminary objections regarding the timeliness of the application and the failure to properly deliver it prior to filing.

The Board found that under the new Interim Certification and Termination Rules, applications are deemed filed on the date they are received by the Board, not the date they are sent by registered mail.

Because the application was received after the collective agreement had expired, it was untimely.

The application was dismissed, with one Board Member dissenting.

The applicant union brought unfair labour practice and contempt applications against the respondents, including a Minister of the Crown.

During the proceedings, the Vice-Chair disclosed that all Board Vice-Chairs had received confidential information regarding the selection process for the recent removal of four Vice-Chairs, an issue central to the applicant's allegations of political interference and lack of institutional independence.

The respondents moved for recusal.

The Board held that, given the high standard of natural justice applicable to its adjudicative functions, the disclosure of this highly relevant but undisclosed information raised a reasonable apprehension of bias.

The proceedings were stayed.

The Toronto Transit Commission (TTC) brought an application alleging that union leaders and organizations breached section 83 of the Labour Relations Act by encouraging protesters to picket TTC sites during the 'Days of Protest', which would cause TTC employees to engage in an unlawful strike.

The Ontario Labour Relations Board found that verbal statements constitute 'acts' under section 83 and that the provision's restriction on Charter rights of expression and assembly is demonstrably justified.

The Board concluded that two union leaders breached the Act and issued cease and desist orders restricting picketing at TTC access points to ensure employees could work, while dismissing the application against a third leader and the organizations.

A dissenting member argued that section 83 should not apply to political speech and that the restrictions were not justified under the Charter.