Christine Davies

In a claims review proceeding regarding a denial of long-term income protection benefits, the Association sought to introduce a 'Will Say' statement and viva voce testimony from the claimant, as well as two scientific articles.

The employer objected, arguing the collective agreement contemplated an expeditious and informal review based on the record before the Joint Benefits Committee.

The arbitrator held that the 'Will Say' statement would be admitted subject to conditions, including limiting it to the two-year claim period and allowing the employer to cross-examine the claimant.

However, the arbitrator denied the request for additional viva voce testimony and refused to admit the scientific articles, noting that doing so would undermine the expedition and informality required by the collective agreement.

The Association filed a grievance regarding the appropriate adjustment of the Long Term Income Protection (LTIP) benefit entitlement for the 2014 calendar year.

The collective agreement transitioned from indexing LTIP increases to the Consumer Price Index (CPI) to indexing them to active employee wage increases, effective January 1, 2015.

The employer argued that the 2014 increase should be based on the wage increase (which was zero), while the Association argued it should be based on the 2014 CPI increase, applied in 2015.

The Grievance Settlement Board upheld the grievance, finding that the clear language of the collective agreement maintained CPI indexing until December 31, 2014, meaning the 2015 payments must reflect the 2014 CPI increase.

The applicant alleged that her employer failed to accommodate her disability following a motor vehicle accident and discriminatorily terminated her employment, and that her union discriminatorily withdrew her grievances.

The respondents sought to dismiss the application at a preliminary hearing, arguing it had no reasonable prospect of success given the applicant's settlement of a civil claim for long-term disability benefits and medical reports indicating she was totally disabled from working.

The Tribunal found that the applicant's own medical evidence demonstrated she was incapable of returning to work and that her prognosis was poor, meaning there was no reasonable prospect she could prove the employer failed to accommodate her or discriminatorily terminated her employment.

The allegations against the union were also dismissed as having no reasonable prospect of success.

The applicant, a teacher, filed two human rights applications against her school board employer and her union, alleging discrimination on the basis of place of origin, ethnic origin, and reprisal.

The Tribunal held a summary hearing to determine whether the applications should be dismissed for delay or having no reasonable prospect of success.

The Tribunal found that the older allegations against the school board did not form a series of incidents with the timely ones and were dismissed for delay, as the applicant lacked a good faith explanation.

The timely allegations against both the school board and the union were dismissed for having no reasonable prospect of success, as the applicant failed to point to any evidence connecting the respondents' actions to the prohibited grounds of discrimination or establishing reprisal.

Both applications were dismissed in their entirety.

The applicant sought to withdraw her human rights application alleging discrimination and reprisal prior to the commencement of the hearing due to health reasons.

The respondent requested that the withdrawal be granted on a 'with prejudice' basis, noting the significant resources expended in preparation and the applicant's history of filing applications.

The Tribunal granted the withdrawal with prejudice, barring the applicant from filing future applications relating to the same incidents, citing the need to dispose of applications fairly and the prejudice to the respondent and the Tribunal's resources.

The applicant, a former member of a housing co-operative, alleged discrimination and harassment based on disability by other members and the co-op's failure to address it.

The respondent co-op requested dismissal under s. 45.1 of the Human Rights Code, arguing the matter was dealt with during eviction proceedings at the Landlord and Tenant Board.

The Tribunal denied the request, finding the LTB only addressed the eviction and not the human rights allegations.

The Tribunal also denied the respondent's request for a summary hearing.

The appellant brought a class action alleging that Bell Mobility improperly collected unused funds from prepaid wireless accounts when customers failed to top up before the end of the active period.

The appellant argued that Bell breached its contract by claiming funds on the first day after the active period ended, and alternatively, that the Gift Card Regulation under the Consumer Protection Act prohibited expiry dates on prepaid phone cards.

The Court of Appeal upheld the motion judge's decision, finding that the contract clearly stipulated expiration at the end of the active period.

The Court also held that the Gift Card Regulation prohibits expiry dates on the future performance of an agreement, not on the duration of the service itself, meaning Bell fully performed its obligation by providing access to its network for the agreed-upon period.

The appeal was dismissed.

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent employee and awarding him $80,911.88 in damages.

The employee, a dock supervisor for 25 years, was reassigned to a newly created 'freight analyst' position with significantly reduced supervisory functions and prestige.

The Court of Appeal upheld the trial judge's finding that this unilateral change constituted a substantial alteration of essential employment terms.

The Court also affirmed that the employee was not required to accept the new position to mitigate his damages, given the unfriendly work environment, acrimonious relationships with supervisors, and the loss of dignity associated with the demotion.

The Union brought a grievance on behalf of a claimant who was denied long-term income protection (LTIP) benefits by the insurer.

The claimant suffered from fibromyalgia and chronic fatigue syndrome, conditions characterized by subjective symptoms such as pain and fatigue.

The employer argued there was insufficient objective medical evidence of impairment.

The arbitrator found the claimant credible, noting her exemplary employment history and the consistency of her self-reported symptoms with the clinical assessments of her treating physicians.

The arbitrator concluded the claimant was wholly and continuously disabled from performing the essential duties of her own occupation and granted LTIP benefits for the 'own occ' period.

The issue of entitlement for the 'any occ' period was remitted to the parties.

The applicant requested to re-activate his human rights application after his unfair representation complaint against his union was dismissed by the OLRB.

The respondents and the union opposed the re-activation, arguing the application should be dismissed under section 45.1 of the Human Rights Code because the substance was dealt with by the OLRB.

The Tribunal granted the request to re-activate, finding that the OLRB decision addressed the union's actions, not the respondents' actions, and therefore section 45.1 did not apply.

The Association grieved the employer's failure to provide insurance coverage for dental implants, arguing that implants fall under the category of 'major restorative services' in Article 35 of the collective agreement.

The employer maintained that the incorporated insurance policy did not cover implants and that Article 35 merely established premium payment and reimbursement levels, rather than expanding coverage.

The Grievance Settlement Board dismissed the grievance, finding that while dental implants could be considered a major restorative service, the collective agreement's general reference to such services did not explicitly expand the specific coverage provided in the underlying insurance policy.

The plaintiff, a 26-year employee, sued his former employer for constructive dismissal after he was removed from his long-standing position as a dock supervisor and offered a newly created, lesser role as a freight analyst.

The employer alleged performance issues, which the court found were unsubstantiated and part of a targeted effort to find fault.

The court held that the unilateral change in duties constituted a fundamental breach of the employment contract, amounting to constructive dismissal.

The court further found that the plaintiff was not required to mitigate his damages by accepting the demeaning new position in a toxic work environment.

The plaintiff was awarded 18 months' reasonable notice, but his claim for moral damages was dismissed.

The plaintiff brought a motion for certification of a class action and approval of a settlement agreement regarding the defendant's sale of daily deal vouchers with allegedly illegal expiration dates.

The court found that the certification criteria under the Class Proceedings Act were met and that the settlement, which established a $535,000 fund, was fair and reasonable.

The court also approved class counsel fees of $235,000, noting that while pre-allocated fees require strict scrutiny, the amount was justified given the significant non-monetary value of the settlement to the class.

The plaintiff class, comprising salaried and executive retirees of General Motors of Canada Limited (GMCL), brought a class action alleging that GMCL breached its contracts by reducing post-retirement health care and life insurance benefits.

On motions for partial summary judgment, the court held that the reservation of rights clauses in the benefit documents for salaried employees were ambiguous and did not clearly permit GMCL to reduce benefits after the employees had retired.

Applying principles of contractual interpretation, including contra proferentem and the duty of good faith, the court found GMCL breached its contracts with the salaried retirees, including new hires and early retirees.

However, the court found that the reservation of rights clause for executive retirees was clear and unambiguous, allowing GMCL to reduce their benefits.

The applicant filed a human rights application alleging discrimination in housing based on the receipt of public assistance.

She challenged a co-op policy requiring overhoused subsidized tenants to move to appropriately sized units or lose their subsidy.

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

The Tribunal dismissed the application as premature, finding that the applicant had not been personally subjected to the policy and was relying on speculation about future impacts.

The defendant employer appealed an order of a Master requiring production of internal corporate documents and refusing to strike certain documents from the plaintiff’s summary judgment motion record in a certified class action concerning post‑retirement employee benefits.

The court interpreted the certification order and settlement agreement governing the litigation, which restricted discovery and admissible documents to “common documents” shared with class members or historical versions of benefits plan documents.

The Master erred by applying a general relevance test rather than the contractual limitations agreed upon by the parties.

Internal board minutes, memoranda, and corporate financial statements were not “common documents” or historical plan documents because they were not shared with employees as part of the benefits package.

The appeal was allowed, the production order was set aside, and the impugned materials were struck from the motion record.

The applicant filed multiple human rights applications alleging discrimination on the basis of disability, reprisal, and breach of settlement against his employer, his union, and his supervisor.

The Tribunal considered whether to consolidate four active applications, whether some allegations were out of time, and whether the applicant should be declared a vexatious litigant.

The Tribunal ordered the four applications to be consolidated and proceed together to a one-day hearing, where the issues of delay and vexatious litigant status would also be addressed.

The applicant filed human rights applications alleging discrimination on the basis of race, colour, ancestry, sex, and reprisal.

Following interim decisions that dismissed parts of the applications due to delay, a summary hearing was convened to determine if the remaining aspects had a reasonable prospect of success.

During the hearing, the applicant requested to withdraw the remaining parts of her applications.

The Province did not oppose the withdrawal, while the Association of Law Officers of the Crown opposed it.

The Tribunal granted the applicant's request to withdraw the applications, noting that no responses had been filed and no prejudice was established.

The applicant filed human rights complaints against her employer and her union, alleging discrimination on the basis of race, place of origin, and perceived disability.

The union respondents requested early dismissal of the application against them under section 45.1 of the Human Rights Code, arguing that the substance of the application had been appropriately dealt with by the Ontario Labour Relations Board (OLRB) in a duty of fair representation complaint.

The Tribunal agreed, finding that the essential nature of the human rights application was raised in the OLRB proceeding and that allowing it to proceed would be an abuse of process.

The Tribunal also found that the application against the union respondents did not disclose a prima facie case of discrimination, as the allegations primarily concerned inadequate representation without any credible assertion of differential treatment based on Code grounds.

The application against the union respondents was dismissed.