Daniel Benjamin Fogel

The employer brought a preliminary motion challenging three allegations raised by the union on the eve of arbitration—that the grievor had completed his probationary period, and that his termination violated the Human Rights Code and the Public Service of Ontario Act.

The employer argued these allegations constituted an improper expansion of the original grievance, which only alleged the termination was untimely, unjust, without cause, and/or too severe.

The Arbitrator agreed, finding that the new allegations were not inherent in the original grievance and had not been raised during the grievance process, thereby depriving the employer of the opportunity to investigate and resolve them.

The allegations were ruled not arbitrable.

During a grievance arbitration, the union sought to introduce evidence of two prior incidents involving a witness to demonstrate workplace culture.

The employer objected, arguing the evidence was improper propensity evidence.

The arbitrator ruled that the evidence could not be admitted to show propensity.

However, because the employer had put workplace culture in issue, evidence of one incident was admitted as relevant to that issue.

Evidence of the second incident was excluded as irrelevant to the characterization of the work environment.

The employer raised a preliminary objection to the arbitrability of a grievance contesting the dismissal of a probationary employee.

The grievor was discharged after being charged with manslaughter following an altercation.

The collective agreement provided that probationary employees could be dismissed at the 'absolute and sole discretion' of the employer and that such dismissal 'shall be deemed to be for just cause.' The union argued there was an implied obligation that the employer's decision not be arbitrary, discriminatory, or in bad faith.

The arbitrator held that the explicit language of the collective agreement overrode any implied obligation, precluding the board from reviewing the dismissal.

The grievance was dismissed for lack of jurisdiction.

In a grievance arbitration concerning the termination of the grievor's employment, the union sought production of cell phone records from a third-party telecommunications provider.

The arbitrator ordered Fido to produce a full account of incoming and outgoing calls between two specified phone numbers for a defined period.

The records were ordered to be released to employer counsel, who would then provide them to union counsel without redaction, subject to privacy protections for personal information.

The union grieved the termination of the grievor's employment.

During the arbitration proceedings, the union sought the production of incoming call detail records from Bell Mobility for a specific telephone number.

On consent of both parties, the Grievance Settlement Board ordered Bell Mobility to disclose and release the requested records to the union's counsel.

The Union brought a motion under Rule 3 of the Grievance Settlement Board's Rules of Procedure to have three grievances heard together by the same Vice-Chair.

The grievances all pertained to the I&IT Support Services department and involved the same supervisor.

The Employer opposed the motion.

The Vice-Chair granted the motion, finding that the grievances shared common questions of law or fact, and that hearing them together would create efficiencies, avoid inconsistent findings, and not prejudice the Employer.

The Employer requested documents pertaining to the grievor's criminal charges and trial, while the Union requested a list of documents over which the Employer claimed privilege.

The Vice-Chair ordered that the Employer's document request be deferred until a decision is made on its preliminary motion to dismiss based on the grievor's probationary status.

The Employer was ordered to provide a list of documents preceding the termination date over which it claimed privilege, including the date, author, recipients, general subject matter, and privilege claimed.

The Union applied for interim relief seeking an order that the Employer accommodate the grievor in a non-driving position pending the outcome of his grievance.

The grievor, a coach technician, had his driver's license suspended following an impaired driving charge, but asserted he suffered from alcoholism requiring accommodation.

The Grievance Settlement Board denied the application, finding that granting the requested interim relief would effectively dispose of the main accommodation issue in the grievance without a full hearing on the merits, which exceeds the arbitrator's procedural powers under the Labour Relations Act.

The applicant sought to amend his human rights application to include allegations that the respondent failed to accommodate his disability between 2011 and 2013, and that certain 'wayfinder' work was available for five years prior to his placement in that role in July 2015.

The Tribunal denied the request to add the 2011-2013 allegations, finding it would substantially alter the nature of the case and expand the scope of the hearing.

However, the Tribunal permitted the applicant to pursue the allegation that wayfinder work was available prior to July 2015 as a further particular of his existing claim that the respondent failed to accommodate him from May 2014 onwards.

In an application alleging employment discrimination based on race, the respondents sought production of the applicant's clinical notes and records relating to workplace stress, as well as certain case notes.

The Tribunal ordered the applicant to produce the clinical notes of her treating professionals, including Dr. Vaidya, and established a procedure for identifying and producing the employer's confidential case notes.

The Tribunal also reviewed four pages of a social worker's notes and found them irrelevant.

Finally, the Tribunal dismissed the respondents' assertions that the applicant's conduct amounted to an abuse of process, cautioning counsel against making such allegations in correspondence rather than through a formal request.

The applicant filed a human rights application alleging discrimination in employment on the basis of race and ethnic origin, as well as reprisal.

The applicant had also filed a claim under the Employment Standards Act (ESA) based on the same facts, seeking unpaid wages and damages for wrongful dismissal.

The Tribunal issued a Notice of Intent to Defer.

Finding that the subject matter of the two proceedings was substantially similar and that proceeding concurrently could result in inconsistent findings, the Tribunal exercised its discretion to defer the human rights application pending the outcome of the ESA claim.

The applicants, a mother and her son who has autism, alleged discrimination with respect to services by a GO Transit bus driver and Metrolinx.

The bus driver, believing he was being stalked by the son, requested a transit safety officer or police officer to identify him.

A police officer boarded the bus and questioned the applicants.

The Tribunal found that while the driver's actions were inappropriate and caused the applicants significant stress, there was no evidence that the driver was aware of the son's disability prior to the police intervention, or that his actions were motivated by the disability.

The applications were dismissed for having no reasonable prospect of success.

An employee brought a wrongful dismissal action after being terminated for alleged anti‑Semitic remarks about the employer’s owners.

The employer asserted just cause based on reports from an undercover investigator and later relied on after‑acquired evidence.

The court found the investigator’s evidence unreliable and determined the employer had failed to conduct an adequate investigation or prove the alleged misconduct on a balance of probabilities.

Just cause was not established.

The court awarded 12 months’ reasonable notice damages and dismissed claims for aggravated, punitive, and Wallace damages.

The grievor, a coach technician, was terminated for taking four litres of windshield washer fluid from the employer's garage for personal use after being explicitly told by his supervisor to put it back.

The union grieved the termination, arguing the conduct did not amount to theft and that discharge was an excessive penalty.

The arbitrator found that the grievor committed theft, as he took the fluid for his own benefit despite knowing he was not entitled to do so.

Applying a contextual approach to discipline, the arbitrator upheld the discharge, noting the grievor's lack of candour, absence of necessity, prior disciplinary record, and failure to accept responsibility.

The grievance was dismissed.

The applicants, who were employed by contractors at the respondent's worksite, alleged discrimination with respect to employment because of disability.

The respondent requested that the applications be dismissed at a summary hearing for having no reasonable prospect of success, arguing that the applicants were removed from the worksite for failing to comply with its drug and alcohol policy.

The Tribunal found that the applications could not be dismissed at this preliminary stage, as the applicants' allegations regarding the circumstances of the testing requests could potentially shift the burden to the respondent to explain its actions.

The Tribunal also found merit in the argument that the respondent's policy affected the applicants' employment, despite the respondent not being their direct employer.

The applicant purchaser sought a declaration that an open building permit relating to a garage constituted a valid objection to title under an agreement of purchase and sale for residential property.

The respondent estate argued the permit was inconsequential because no work had been undertaken and the permit merely authorized construction rather than requiring it.

The court held that an outstanding building permit creates potential exposure to municipal inspections, work orders, remedial construction, and litigation, thereby affecting the purchaser’s use and enjoyment of the property.

Given the uncertainty surrounding whether the permit could be closed and the potential cost of compliance, the permit constituted a defect going to the root of title.

The purchaser’s requisition requiring the permit to be closed was therefore valid and the respondent had not shown good title.

The Union grieved the Employer's practice of not accruing vacation credits for employees on WSIB during months 4 to 9 of their absence.

The Collective Agreement provided that employees on WSIB for the first three months were on a paid leave of absence and accrued vacation credits, but after three months, they were paid directly by WSIB.

The Arbitrator dismissed the grievance, finding that under the Collective Agreement, employees only earn vacation credits when working or on a paid leave of absence.

The Arbitrator also rejected the Union's human rights argument, holding that it is not discriminatory to differentiate compensation between working employees and non-working employees off due to illness.

The employer brought an application for judicial review of an Ontario Labour Relations Board decision.

The Board had upheld a union grievance, finding that fire restoration work at a Petro-Canada site was 'construction work' under the Labour Relations Act and governed by the provincial agreement, rather than the General Presidents' Maintenance Agreement.

The employer argued the Board erred in its application of the doctrine of estoppel and lacked jurisdiction to issue supplemental reasons.

The Divisional Court dismissed the application, holding that the Board had jurisdiction to issue supplemental reasons and that its decision on the nature of the work and the application of estoppel was reasonable.