David Ian Wakely

Following resolution of a motion by consent permitting the applicant to file a fresh notice of application in litigation arising from termination of employment by a municipal employer, the court addressed competing claims for costs.

The applicant sought $5,000 in costs while the respondent sought $10,000.

The court noted that success on the motion was divided and that the proposed fresh notice of application had originally sought relief well beyond the narrow issue capable of adjudication under the Municipal Act.

Considering the discretionary nature of costs under s. 131 of the Courts of Justice Act and Rules 57.01 and 57.03 of the Rules of Civil Procedure, the court concluded that fairness favoured making no costs order.

The applicant filed a human rights application alleging discrimination in employment, which was essentially identical to a previous application that had been dismissed as untimely.

The Tribunal held a preliminary hearing to determine whether the new application should be dismissed under s. 45.1 of the Human Rights Code.

Applying the principles from Figliola, the Tribunal found that the substance of the application had already been appropriately dealt with in the prior proceeding and that attempting to relitigate the matter was an abuse of process.

The application was dismissed.

The applicant filed a human rights application alleging discrimination in employment based on place of origin, sexual orientation, family status, and marital status.

The Tribunal held a summary hearing to determine if the application was timely.

The allegations related to events that occurred over an 11-year period, all of which were beyond the one-year time limit under section 34 of the Human Rights Code.

The applicant argued the delay was due to pursuing other legal avenues, which the Tribunal found did not constitute a good faith reason for the delay.

The application was dismissed as untimely.

The applicant, a 49-year-old municipal employee with 26 years of service, alleged age discrimination when a younger candidate was selected over him for an Arena Manager position.

The Tribunal found that while the applicant established a prima facie case of discrimination, the respondent provided a rational, non-discriminatory explanation that the successful candidate was more qualified due to recent management courses and better interview performance.

The Tribunal concluded that the respondent's emphasis on educational qualifications was not a pretext for age discrimination and dismissed the application.

The applicant, a black man of Caribbean origin, alleged that his termination from employment during a company downsizing was discriminatory based on his race, colour, and place of origin.

He argued that as the most senior member of his team, he should not have been the first to be terminated.

The Tribunal found that the employer's decision was based on legitimate work-related factors, including the applicant's past refusal to perform assigned tasks, and that there was no evidence to infer discrimination.

The application was dismissed.

The applicant unions sought judicial review of an interim decision of the Ontario Labour Relations Board regarding card-based certification.

The employer had provided lists of employees for two prospective bargaining units with 24 overlapping names.

The unions agreed between themselves on how to allocate the overlapping workers and argued the employer was bound by this agreement.

The Board ruled the employer was not a party to the agreement and ordered the employer to provide an unqualified list.

The Divisional Court dismissed the application for judicial review, finding the Board's decision was reasonable and consistent with its jurisprudence.

The applicant employer sought judicial review of a labour arbitrator's decision reversing a two-week suspension imposed on an employee for fighting.

The arbitrator found that the employee had not engaged in a fight, preferring the employee's viva voce evidence over written statements filed by the employer.

The Divisional Court dismissed the application, holding that the arbitrator's factual findings were not patently unreasonable and that the arbitrator correctly held the employer to the specific grounds assigned for discipline.

The parties agreed to adjourn the scheduled hearing dates in November and December 2001 due to the anticipated passage of Bill 130.

The applicant undertook to advise the Board by December 20, 2001, whether it would also seek to adjourn the January 2002 hearing dates.

The Board granted the adjournment.

The Board held a pre-hearing conference regarding three applications for certification in the construction industry.

The Board directed that the applications be consolidated to deal with 104 status disputes.

The responding party was ordered to file its reply, including statements from individuals whose status is in dispute, by a specified date.

The Board also scheduled a further pre-hearing conference and set multiple hearing dates for the consolidated matters.

The complainant alleged that the Toronto Transit Commission discriminated against him on the basis of sexual orientation by denying employment benefits to his same-sex partner.

After the respondent agreed to be bound by a related decision and extended benefits, the only remaining issue was the assessment of damages.

The Board of Inquiry found that the respondent did not act wilfully or recklessly, dismissing the claim for mental anguish.

However, the Board awarded $2,500 in general damages to compensate the complainant for the loss of his right to be free from discrimination.

The Ontario Civilian Commission on Police Services held a hearing into the conduct of the members of the Wallaceburg Police Services Board.

The Board had laid off three members of the police service (two cadets and one civilian communicator) to meet budget cuts, without obtaining the Commission's consent under section 40 of the Police Services Act.

The Commission found that the layoffs constituted a reduction in the size of the force, requiring consent, and that the Board's reliance on the probationary termination provisions in section 44 was improper.

The Commission concluded that the Board members' actions constituted misconduct and a failure to perform their duties in a satisfactory manner.

The four current members of the Board were removed from their positions.

The grievor, a rehabilitation counsellor, was discharged after pleading guilty to off-duty charges of gross indecency and sexual assault involving young boys.

The employer argued the discharge was justified due to the nature of the crimes, the grievor's disruptive behaviour at work, and resistance from co-workers.

The Grievance Settlement Board found that while the grievor's crimes were repugnant and his workplace behaviour difficult, the employer failed to apply progressive discipline for his workplace misconduct.

The Board ordered the grievor reinstated without compensation, subject to strict conditions including ongoing psychiatric treatment and placement in a non-field position.

The complainant, a dairy farmer and member of the Free Presbyterian Church of Scotland, objected to shipping milk on Sundays for religious reasons.

The Ontario Milk Marketing Board (OMMB) accommodated 'no Sunday shippers' by providing alternate pickup days but charged them an extra transportation fee.

The Board of Inquiry found that the complainant's religious beliefs were sincerely held and protected under the Code.

The Board held that the OMMB's policy of assessing special transportation charges to 'no Sunday shippers' constituted constructive discrimination and that absorbing the costs would not cause undue hardship.

The OMMB was ordered to cease charging the extra fees prospectively.

The employer applied for a declaration and direction under section 92 of the Labour Relations Act, alleging that union members engaged in an unlawful strike through a concerted refusal to work overtime.

The parties reached a written agreement to resolve the matter.

The Board issued a consent order declaring the overtime ban an unlawful strike, directing the union and its officers to cease and desist from encouraging the ban, and requiring the posting of a notice to employees.

The Board also provided commentary emphasizing that concerted refusals to work overtime, even when overtime is voluntary under a collective agreement, constitute unlawful strikes.

The applicant employee association applied for certification.

The intervener union challenged the application, alleging improprieties in the membership evidence and the Form 9 declaration, as well as employer interference.

The Board found that the Form 9 declarant did not make the necessary reasonable inquiries and that the amended Form 9 contained material misrepresentations regarding the collection of membership cards and fees.

Consequently, the Board rejected the Form 9 declarations as improper and unreliable.

Without a valid Form 9, the membership evidence was given no weight, and the application for certification was dismissed.

In an application for certification, the intervener union filed allegations of misconduct.

The respondent employer brought a preliminary motion demanding further particulars of the allegations.

The Board reviewed the legal and labour relations considerations for requiring particulars, noting the need for natural justice and avoiding prejudicial delay.

The Board directed the intervener to provide specific particulars regarding dates, times, places, and persons involved in the alleged meetings and incidents, and adjourned the hearing on the merits.

The applicant union sought to terminate the bargaining rights of the incumbent union and apply for certification to represent employees at food-service outlets at Pearson International Airport.

The incumbent union had entered into voluntary recognition agreements with a new concession operator, which were ratified by the employees.

The applicant argued these agreements should be set aside under section 60(1) and section 46(4) of the Labour Relations Act.

The Board dismissed the applications, finding that the employees had freely ratified the agreements and that the incumbent union had established it represented a majority of the employees at the time the agreements were entered into.

The applicant union sought to terminate the bargaining rights of the incumbent union, Local 1000A, and to certify itself as the bargaining agent for employees of a food-service contractor at Pearson International Airport.

The incumbent union had negotiated a new collective agreement with the successor employer, York County Foods, which was ratified by the employees.

The applicant argued the agreement should be set aside under section 60(1) of the Labour Relations Act because it contained a compulsory membership clause and the union had not established majority support.

The Board dismissed the applications, finding that the incumbent union had fairly established its majority support and that the employees had freely ratified the agreement.

The applicant trade union applied for certification of a part-time office and clerical bargaining unit at the respondent university.

The respondent argued for a tag-end or standard office, clerical, and technical unit.

The Board found that the proposed unit, which mirrored the long-established full-time bargaining structure, was appropriate.

The Board excluded 23 students working in the Kinetic Centre, finding they had a stronger affinity with technical employees.

Due to a significant increase in the number of part-time employees shortly after the application date, the Board ordered a representation vote rather than automatic certification.

The applicant union applied for certification.

A group of employees filed a petition opposing certification, but the union subsequently filed counter-petitions reaffirming support for the union.

The Board found the counter-petitions to be a voluntary expression of employee wishes, despite a gap in the evidence regarding their custody prior to mailing.

The Board declined to order a representation vote and certified the union, with one Board member dissenting.