Daniel Benjamin Fogel

The employer brought a motion for production of documents following up on a previous order.

The arbitrator ordered the grievor to provide consents for access to his Health & Wellness file, clinical notes, prescription records, EI/CPP information, and particulars regarding his disability, accommodation, training, and mitigation of damages.

The Employer moved to bifurcate the hearing to address a preliminary objection to the Grievance Settlement Board's jurisdiction, arguing that the Union's withdrawal of two earlier grievances on the same issue precluded the current grievance.

The Union opposed bifurcation, arguing that the factual history surrounding the prior withdrawals was complex and relevant to both the preliminary objection and the merits.

The Arbitrator denied the motion to bifurcate, finding that the Employer failed to establish that deciding the preliminary issue first would result in substantial savings of time and resources, given the factual disputes about the parties' understandings when the prior grievances were withdrawn.

The union filed a policy grievance challenging the employer's decision to contract out work at a rail maintenance facility.

The employer brought a preliminary motion arguing that the union improperly expanded the scope of the grievance, that the allegations were premature, and that allegations regarding layoffs and terminations could not be pursued as a policy grievance under Article 4.5 of the collective agreement.

The arbitrator held that Article 4.5 precluded the union from pursuing the layoff and termination allegations as a policy grievance because they directly affected identifiable employees who could file individual grievances.

However, the arbitrator dismissed the employer's arguments regarding the scope of the grievance and prematurity, finding that the union's allegations about 'contracting in' and the timing of the announcement were inherent to the original grievance and that the matter was ripe for adjudication.

In a grievance arbitration concerning a 10-day suspension and a dismissal, the employer sought to bring a preliminary motion arguing that the union's allegations of reprisal under the Occupational Health and Safety Act and discrimination under the Human Rights Code were outside the scope of the grievance.

The union brought a motion arguing the scope issue should not be bifurcated from the hearing on the merits.

The arbitrator declined to bifurcate the proceedings, finding that the evidence relevant to the scope issue was intertwined with the evidence on the merits, and that fairness and practicalities weighed against dealing with the scope issue as a preliminary matter.

The Employer brought a preliminary motion arguing the Union had not established a prima facie breach of the collective agreement.

The grievance challenged the Employer's decision to place the Grievor on unpaid leave for failing to comply with a mandatory Covid-19 testing policy, arguing it was unreasonable to deny the Grievor's request to work from an alternate location.

The Arbitrator found that the agreed facts did not support the Union's contention that the decision was unreasonable, and the Union had no evidence to contradict the Employer's rationale.

The grievance was dismissed.

The grievor failed to attend the hearing on March 31, 2023.

The Arbitrator previously ordered the grievor to provide an explanation and supporting documentation for the non-attendance by April 17, 2023, failing which the grievances would be dismissed.

The grievor failed to provide any explanation.

Consequently, the three grievances were dismissed.

The Union filed three grievances on behalf of the grievor.

Following a prior order requiring the grievor to produce documents and attend the hearing, the grievor failed to attend the scheduled hearing or contact the Union.

The Employer requested that the grievances be dismissed for abuse of process.

The Arbitrator ordered the grievor to provide an explanation and supporting documentation for his non-attendance by a specified date, failing which the grievances would be dismissed.

The employer sought an order for the production of documents and particulars after the union failed to provide them by an agreed-upon date.

The union explained that the grievor had not responded to its attempts to contact him.

The arbitrator ordered the union to produce the requested documents and particulars, and ordered the grievor to contact the union immediately and attend the next scheduled hearing date.

In a grievance arbitration between the Amalgamated Transit Union and Metrolinx, the parties agreed to make best efforts to provide mutual disclosure and particulars by a specified date.

The union agreed to provide the grievor's medical and benefits records, as well as particulars of accommodations not provided.

The employer agreed to provide documents related to its efforts to accommodate the grievor's medical conditions.

The hearing was adjourned to dates to be arranged.

The plaintiff in a solicitor's negligence action brought a motion for leave to amend her statement of claim to add allegations of litigation misconduct against the defendants' counsel.

The proposed amendments related to the removal of labels from boxes containing the plaintiff's files before they were delivered.

The court dismissed the motion, finding that the proposed amendments did not arise from the same factual matrix as the original claim and did not disclose a legally tenable cause of action for litigation misconduct.

The court also noted the motion appeared to be brought primarily for tactical reasons to bolster a separate motion to remove the defendants' counsel.

The union filed a grievance alleging the employer failed to accommodate the grievor when he was able to return to work.

To facilitate the efficient litigation of the grievance, the arbitrator issued a procedural order directing the union to produce relevant medical, insurance, and employment records, as well as particulars regarding the requested accommodations and the grievor's efforts to obtain training.

The employer was also directed to produce relevant documents.

The parties reserved their rights regarding the scope of the grievance as it relates to the grievor's fitness for duty as a bus driver given his prescribed cannabis usage.

In a discharge grievance involving a transit safety officer's alleged excessive use of force, the employer brought a motion to call its use-of-force expert witness in two installments.

The employer proposed that the expert first testify about training in its case-in-chief, but reserve his opinion on the appropriateness of the grievor's use of force for reply, after hearing the grievor's testimony.

The union opposed the motion, arguing it amounted to improper case splitting and deprived the union of knowing the case to meet.

The arbitrator dismissed the employer's motion, holding that the usual order of proceedings should apply to prevent prejudice to the union and avoid a protracted, splintered hearing.

In an arbitration proceeding, the employer requested a subpoena for a patient's medical records from a hospital.

The hospital's representative agreed to release the records upon receipt of a written order and authorization.

The union did not oppose the arrangement.

The arbitrator found the materials arguably relevant and ordered the hospital to disclose the records to employer counsel, who would then provide a copy to union counsel.

The Union filed a policy grievance challenging the Employer's requirement that employees complete detailed Attending Physician Statements for short-term disability/sick leave and accommodation requests, and submit them to a third-party provider (Oncidium).

The Arbitrator held that requiring the STD/Sick Leave form in the first instance for absences over 5 days breached the Collective Agreement, which only required a basic medical certificate provided to the supervisor.

The Arbitrator also found the Accommodation form was inappropriately broad and intrusive at the initial stage of the accommodation process.

Finally, the Arbitrator ruled that the Employer must pay for the completion of the forms if they require a medical examination.

In a grievance arbitration concerning the termination of a bus driver for impaired driving, the union brought a motion for the production of documents related to the employer's proposed expert witness.

The union sought the expert's retainer letter, contracts between the expert and a third-party testing company, and the employer's requests for proposals for its drug testing program, citing concerns about the expert's independence.

The arbitrator granted the motion in part, ordering the production of the retainer letter as it contained foundational instructions to the expert and any litigation privilege was waived by putting the expert forward.

The requests for the third-party contracts and RFPs were dismissed as the employer did not control the expert's contract and the other documents lacked sufficient relevance.

The Employer brought a motion to dismiss the grievance for abuse of process after the Grievor failed to comply with a prior interim decision requiring him to facilitate the production of arguably relevant documents.

The Grievor objected to signing consent forms until other matters were addressed.

The Arbitrator found that the Grievor had failed to comply with the order, noting that disagreement with an order does not excuse non-compliance.

However, given the serious consequences of dismissing a termination grievance, the Arbitrator declined to dismiss the grievance at this stage and granted the Grievor a final opportunity to comply by a specified date, warning that continued failure would result in dismissal.

The Union brought a preliminary motion to adjourn the grievance arbitration hearing to permit the Grievor to obtain an independent medical examination (IME) report from a psychiatrist or psychologist.

The Employer sought production of documents from the Crown and Police relating to the Grievor's alleged harassment of certain individuals.

The Arbitrator granted the adjournment, set a timeline for the IME report and related medical records, and directed the Union and Grievor to take reasonable steps to facilitate the production of the requested Crown and Police materials.

The Union waived its right to seek back wages for the period of the adjournment.

The Grievance Settlement Board issued an interim decision on consent directing the Centre for Addiction and Mental Health (CAMH) to provide all documents and records related to the grievor to the union's counsel.

The union was then directed to produce all arguably relevant documents to the employer without delay, advising of any redactions.

The Union filed a policy grievance alleging the Employer violated the collective agreement by assigning 'change-offs' to standby bus drivers at the sixth hour of their shift.

The Union argued that a change-off is a 'task' rather than a 'specific piece of work' and therefore cannot be assigned at the sixth hour.

The Arbitrator dismissed the grievance, finding that the collective agreement's broad definition of standby work, the historical practice of assigning change-offs to standby drivers, and the purpose of protecting service supported the Employer's right to make such assignments, provided the supervisor reasonably believes the work can be completed within the driver's remaining spread limit.

In a termination grievance arising from two workplace investigations into the grievor's conduct, the union sought disclosure of the investigation files.

The arbitrator ordered the employer to disclose the investigation reports and any documents collected or created as part of the investigations into complaints from two individuals.

The disclosure was made subject to strict confidentiality conditions, including that the documents only be used for the arbitration and not be shared electronically.