Chris G. Paliare

The appellant challenged a trial judgment awarding damages for breach of contract arising from a commercial distribution relationship involving photographic products and an export price policy aimed at curtailing transhipping.

On appeal, the appellant restricted its arguments to restraint of trade, penalty, and damages, while the respondent advanced a cross-appeal on damages scope.

The court held that even assuming the policy was a restraint of trade, it was reasonable as between the parties and not contrary to the public interest, including the Competition Act.

The court further held the policy was not a penalty clause because it applied absent any breach, and found no error in the trial judge's assessment of notice and damages.

Both the appeal and cross-appeal were dismissed with costs.

On an appeal from the Divisional Court in an employment standards matter, the court held that the applicable standard of review of the adjudicator's decision was reasonableness.

Adopting the dissenting view in the Divisional Court, the court concluded that the adjudicator's interpretation of the relevant provision of the Employment Standards Act was reasonable.

The appeal was therefore allowed, the application for judicial review was dismissed, and costs were awarded against the employer in favour of the employee, with no costs for or against the adjudicator.

The applicant union applied for certification to displace the incumbent International Union.

The incumbent union and the General Presidents' Maintenance Committee for Canada (GPMC) intervened, arguing that a valid collective agreement already covered the employees.

The Board examined several documents and agreements to determine if a valid collective agreement existed between the responding party employer and the International Union.

The Board found that while the GPMC lacked actual authority to sign the adherence agreement on behalf of the International Union, it possessed ostensible authority to do so.

Furthermore, the Board determined that recent amendments to section 44 of the Labour Relations Act applied retroactively, meaning employee ratification was not required.

Consequently, a valid collective agreement existed, giving the intervenors status, and the Board directed the counting of the displacement ballots.

The applicant union referred a grievance to the Ontario Labour Relations Board under section 133 of the Labour Relations Act, 1995, arguing that work performed by the responding party on a blast furnace was construction work and should have been performed under the ICI provincial agreement.

The responding party and intervenors argued the work was maintenance and properly performed under the General President's Maintenance Agreement.

The Board reviewed the scope of work, which involved extensive replacements and redesigns to bring a decommissioned furnace back into service.

The Board concluded that the totality of the work constituted repair and alteration, making it construction work subject to the ICI agreement.

The matter of damages was remitted to the parties.

The applicant union filed a grievance alleging that the responding party employer breached the provincial collective agreement by applying a maintenance agreement to various electrical work projects at a refinery.

The Ontario Labour Relations Board was asked to determine whether eight specific items of work were 'construction' or 'maintenance'.

The Board declined to defer to a prior determination by the General Presidents' Maintenance Committee.

Applying the Master Insulators test, the Board analyzed the context and purpose of each project.

It concluded that seven of the eight items involved additions or enhancements to the systems and were therefore 'construction' work, while one item was 'maintenance'.

The employer was found to have breached the collective agreement with respect to the construction work.

The Power Workers' Union (PWU) brought applications for certification to displace the incumbent bargaining agents for construction employees at Ontario Hydro.

The Ontario Labour Relations Board first determined that the PWU must establish it is a 'trade union' within the meaning of section 126 of the Labour Relations Act (a construction trade union) to bring such applications.

After a lengthy hearing, the Board concluded that the PWU is not a construction trade union because it does not have a history of representing construction employees separate and apart from other employees, nor does it possess the established characteristics of a construction trade union.

Consequently, the PWU's applications for certification were dismissed.

The applicant union referred a grievance to the Ontario Labour Relations Board under the ICI Provincial Agreement, alleging that the responding employer improperly assigned construction work as maintenance work.

The employer brought a preliminary motion to dismiss the grievance, arguing that the union had already submitted the same dispute to the alternative dispute resolution mechanism under the General Presidents' Agreement (GPA), which resulted in a final and binding decision.

The Board upheld the preliminary motion, finding that the union had initiated the GPA grievance process and fully participated in it.

The Board concluded that it would be unfair to allow the union to re-litigate the issue after receiving an unfavourable decision from the GPA panel, and terminated the proceeding.

The applicant trade union referred a grievance to the Board alleging the employer failed to pay proper wage rates under the provincial ICI agreement for work performed at a Dofasco project.

The employer asserted the work was maintenance covered by a project agreement.

The General Presidents' Maintenance Committee for Canada (G.P.C.) and Dofasco sought standing to intervene.

The Board held that neither had standing as of right, as they were not bound by the ICI agreement.

However, the Board exercised its discretion to grant standing to the G.P.C. given its role in administering maintenance agreements and the potential impact on the collective bargaining system.

Dofasco was denied standing.

The appellant employer and respondent union were engaged in a bitter, 18-month strike marked by violence.

The employer refused to negotiate a grievance arbitration process for employees dismissed for picket-line violence, making it a precondition to further bargaining.

The Canada Labour Relations Board found this constituted a failure to bargain in good faith and ordered the employer to table its previous tentative agreement, with four unresolved issues subject to binding mediation.

The Supreme Court of Canada upheld the Board's decision, finding that the determination of bad faith bargaining was within the Board's specialized jurisdiction and not patently unreasonable.

The Court also held that the Board's broad remedial order under s. 99(2) of the Canada Labour Code was rationally connected to the breach and necessary to counteract the consequences of the employer's intransigence, thus not exceeding its jurisdiction.

The appellant trustee in bankruptcy appealed a decision regarding its liability to make contributions to employee pension plans.

At the Supreme Court of Canada, the appellant conceded the appeal was moot.

The Court declined to exercise its discretion to hear the moot appeal under the Borowski criteria and dismissed the appeal with costs.

The applicant filed an application for termination of bargaining rights.

The Board had to determine whether a discharged employee, who was ordered reinstated in a separate proceeding, should be included on the list of employees for the count.

The Board ruled she should be included, as she did not lose her employee status by being dismissed contrary to the Act.

The Board also refused to give weight to a petition faxed on the terminal date, as it violated the Board's Rules of Procedure.

Consequently, the applicant's support fell below the required 45% threshold after accounting for voluntary re-affirmations of union support.

The application was dismissed.

The applicant union sought a declaration under section 63 of the Labour Relations Act that it was the successor to the bargaining rights of Local 414 with respect to a bargaining unit employed by the responding party.

The International union opposed the application, arguing that it held the bargaining rights, that the disaffiliation of Local 414 was flawed, and that the formation of the new national union and its merger with the USWA were invalid.

The Board found that Local 414 held the bargaining rights, that the disaffiliation and subsequent merger were completed in substantial compliance with the relevant constitutions, and that the new organization was a trade union.

The Board declined to order a representation vote and declared the applicant to be the successor.

The applicant union sought interim relief in a dispute over bargaining rights at A & P stores.

The Board had previously ordered the status quo maintained regarding local union representation.

The applicant alleged the employer breached this by cancelling leaves of absence for its supporters while maintaining them for the rival union's supporters, and by allowing the rival union to designate new representatives.

The Board granted interim relief, directing that customary union representatives continue to handle workplace issues and ordering the employer to reinstate the cancelled leaves of absence to ensure neutrality pending the final decision on bargaining rights.

The Board considered an application for interim relief in a successor rights dispute involving competing claims by the Steelworkers, the UFCW, and the RWDSU over the representation of employees at New Dominion/A & P stores.

The unions were unable to agree on how to conduct their affairs while the matter was pending.

To preserve orderly labour relations and ensure employees had continued representation by familiar individuals, the Board granted an interim order maintaining the status quo as of July 10, 1993, allowing local store managers to continue dealing with the union representatives they customarily dealt with prior to the dispute.

The applicant union applied for direction of settlement of a first collective agreement by arbitration under the Labour Relations Act.

Subsequently, the union applied under the Hospital Labour Disputes Arbitration Act (HLDAA), asserting the respondent employer is a hospital.

The employer argued the Board should dismiss or defer the first contract application.

The Board declined to dismiss the application for abuse of process but adjourned the hearing pending the Minister's decision on the respondent's status under the HLDAA, noting the balance of convenience favoured avoiding a potentially null proceeding.

The complainant union and employee alleged that the respondent college discharged the employee because he supported and was expected to testify in another employee's grievance arbitration, contrary to section 80(1) of the Colleges Collective Bargaining Act.

The Board found that the employee's attitude and performance had deteriorated significantly after he was bumped from a full-time position, characterized by chronic lateness and insubordination.

The Board concluded that the discharge was the inevitable result of the employee's poor conduct and insubordination, culminating in a confrontation with his supervisor, and was not motivated by anti-union animus.

The complaint was dismissed.

The appellant and a co-accused were originally tried jointly and convicted of first degree murder.

A new trial was ordered, but prior to the second trial, the co-accused pleaded guilty to second degree murder and accepted a statement of facts indicating his footprints were at the scene.

At the appellant's second trial, the defence intended to call a footprint expert who had testified at the first trial that the footprints were not the co-accused's.

The trial judge permitted the Crown to cross-examine the defence expert on whether the co-accused's guilty plea and admission would change his opinion.

The defence consequently did not call the expert, and the appellant was convicted.

The Supreme Court of Canada allowed the appeal and ordered a new trial, holding that an expert cannot be cross-examined on facts that are not and will become part of the admissible evidence.

The applicant, Local 594, sought a declaration under section 62 of the Labour Relations Act that the respondent, Local 586, had not acquired its bargaining rights following a merger ordered by the International President of the IBEW.

Local 594 argued that a merger could not be effected without a vote of its members.

The majority of the Board dismissed the application, finding that the merger was carried out in accordance with the union's constitution and that the Board's role under section 62 is to ensure constitutional provisions were followed, not to require a membership vote.

A dissenting member would have required a representation vote for non-ICI sector bargaining rights.

The applicant union local sought a declaration under section 62 of the Labour Relations Act that the respondent union local was not its successor following a merger ordered by the international union president.

The Board found that the employer intervener had status to participate but could not lead evidence on the business consequences of the merger.

The Board determined that the merger was conducted in accordance with the union's constitution, which did not require a membership vote.

However, the Board raised concerns about the effect of section 137(2) of the Act and the provincial agreement on the application, and referred the matter for a further hearing on that issue.

During a hearing for an unfair labour practice application, the respondent union sought production of notes that a complainant witness had used to refresh his memory prior to testifying.

The witness did not refer to the notes during his examination-in-chief.

The Board held that ordering production of such notes is a matter of discretion.

The Board declined to order production because the respondent failed to establish the factual basis for the exercise of discretion, such as the time elapsed between the witness referring to the notes and giving evidence, and because notes prepared for counsel are privileged.