David Wynne Wright

The appellants, a public sector union and its officers, challenged the constitutionality of back-to-work legislation (Bill 178) that ended a five-week faculty strike at Ontario's 24 colleges of applied arts and technology in 2017.

The Court of Appeal found that the legislation limited the appellants' s. 2(d) Charter right to freedom of association by ending a lawful strike, departing from the application judge's finding of no substantial interference.

However, the court held that the limitation was justified under s. 1 of the Charter, finding that Ontario had a pressing and substantial objective of resuming classroom instruction to protect students' academic year, that the means were rationally connected and minimally impairing, and that the substitution of neutral interest arbitration for strike activity rendered the effects proportionate.

The applicant union sought judicial review of a Grievance Settlement Board decision that declined to hear four health and safety grievances related to a COVID-19 outbreak at a correctional facility.

The Arbitrator had ruled the grievances were barred by issue estoppel and collateral attack because the union had previously sought orders from Ministry of Labour inspectors under the Occupational Health and Safety Act for the same issues but failed to appeal the inspectors' decisions to the Ontario Labour Relations Board.

The Divisional Court dismissed the application, finding the Arbitrator's application of issue estoppel and collateral attack was reasonable.

The Union filed multiple grievances regarding employees at the Toronto South Detention Centre who were sent home without pay for failing to submit negative Covid-19 rapid antigen test results prior to their shifts.

The Arbitrator ruled that employees who failed to submit results due to their own fault are entitled to 50% of their wages for the missed shift.

Employees who can demonstrate they took the test and attempted to submit the results, but were prevented by technological issues, are entitled to 100% of their wages, subject to providing required documentation within 60 days.

The Ontario Public Service Employees Union (OPSEU) and two individuals applied for a declaration that the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017, which ended a five-week college strike, infringed their freedom of association rights under section 2(d) of the Canadian Charter of Rights and Freedoms, and sought damages.

The Crown in Right of Ontario and the College Employer Council argued the Act did not infringe the Charter or was justified under section 1.

The court dismissed the application, finding that the Act did not substantially interfere with meaningful collective bargaining, as the parties were at an impasse.

Alternatively, the court held that even if there was an infringement, it was justified under section 1, given the pressing and substantial objective of resuming college instruction, the rational connection of the legislation, its minimal impairment (by substituting a neutral arbitration process), and its proportionality.

The employer brought a preliminary motion to dismiss two union grievances related to COVID-19 workplace safety at a correctional institute for failing to disclose a prima facie case.

The first grievance alleged the employer violated the collective agreement and the Occupational Health and Safety Act by holding a staff appreciation drop-in event in March 2020.

The arbitrator dismissed this grievance, finding the union's particulars lacked facts showing the event was actually unsafe.

The second grievance alleged the employer circumvented the Joint Health and Safety Committee (JHSC) by shifting health and safety responsibilities to an employer-controlled committee.

The arbitrator dismissed the employer's motion regarding the second grievance, finding it arguable that the statutory duty to take every reasonable precaution could require scheduling more frequent JHSC meetings during a pandemic.

The union filed four grievances relating to health and safety concerns at a correctional facility during the early stages of the COVID-19 pandemic.

In each case, the union had previously sought an order from a Ministry of Labour inspector under the Occupational Health and Safety Act, but the inspector declined to make an order.

Instead of appealing the inspectors' decisions to the Ontario Labour Relations Board, the union filed grievances.

The employer brought a preliminary motion to dismiss the grievances.

The arbitrator granted the motion, finding that the grievances constituted an improper collateral attack on the inspectors' decisions and were barred by issue estoppel, as the union had chosen the statutory enforcement route and failed to exhaust its appeal rights.

The Grievance Settlement Board previously ordered that any grievors who did not respond to the Union's request for information by October 4, 2023, would have their grievances dismissed.

Several grievors failed to respond by the deadline.

Consequently, the arbitrator dismissed their respective grievances and remained seized of the remaining grievances.

The union grieved a one-day suspension imposed on a correctional officer for failing to wear a mandated surgical mask and coming within six feet of other staff during the COVID-19 pandemic.

The arbitrator found the employer proved the misconduct via CCTV footage showing the grievor eating without a mask in close proximity to colleagues.

Given the serious health and safety risks and the grievor's lack of remorse, the arbitrator upheld the one-day suspension as an appropriate penalty and dismissed the grievance.

The union grieved a three-day suspension imposed on a correctional officer for failing to wear safety goggles on three separate occasions during the COVID-19 pandemic.

The employer discovered the infractions incidentally while reviewing CCTV footage for contact tracing purposes.

The arbitrator held that the use of CCTV for contact tracing was a legitimate safety measure under the collective agreement, and that incidental observations of misconduct could be used for discipline.

The arbitrator rejected arguments that the employer condoned the behaviour or failed to apply progressive discipline, finding that the health and safety risks justified the penalty.

The grievance was dismissed.

The Union filed multiple grievances alleging that the Employer violated the collective agreement by failing to compensate employees for lost overtime and holiday pay opportunities while they were required to self-isolate due to COVID-19.

The Union also claimed entitlement to pandemic-related monetary payments, including Short-Term Sickness Plan top-ups and Coronavirus Leave Paid.

The Grievance Settlement Board dismissed the grievances, finding no clear language in the collective agreement requiring payment for overtime or holiday premiums when employees could not attend work.

The Board also held it lacked jurisdiction to review the Employer's administration of the Coronavirus Leave Paid program, as it was established outside the collective agreement.

The grievor, a correctional officer, was suspended and ultimately terminated for refusing to comply with the employer's COVID-19 Safe Workplace Directive, which required unvaccinated employees to undergo rapid antigen testing.

The grievor also claimed Short Term Sickness Plan benefits for a period during which he was absent due to his refusal to test, which the employer denied.

The arbitrator found that the grievor's refusal to test constituted insubordination and did not fall within the safety or privacy exceptions to the 'obey now, grieve later' rule.

The arbitrator also found that the grievor's claim for sick leave benefits was fraudulent.

The grievances challenging the suspension, the denial of sick leave benefits, and the termination were all dismissed.

The Employer requested an order that any grievors who do not respond to the Union's request for information by October 4, 2023, will have their grievances dismissed.

The Union did not oppose the request.

The Grievance Settlement Board granted the order on consent, appending a list of the affected grievances.

The parties agreed to consolidate multiple grievances under a single lead file number.

The arbitrator ordered the consolidation on consent and noted they were not seized of the matter.

The Grievance Settlement Board issued a consent order consolidating multiple grievances under a single lead file number (GSB No. 2020-0572) on the agreement of the parties.

The union filed grievances claiming compensation for employees required to self-administer rapid antigen COVID-19 tests and report the results via a mobile application outside of working hours.

The arbitrator found that the testing and reporting requirements constituted a claim on the employees' time and therefore qualified as compensable work.

However, the arbitrator dismissed the union's claim that the testing constituted a 'call back' under the collective agreement, as the provisions required either physical attendance at the workplace or direct employer contact between shifts.

The arbitrator also allowed the union's claim for reimbursement of data costs incurred to report results, limited to circumstances where free Wi-Fi was unavailable.

The Employer requested an order that any grievors who do not respond to the Union's request for information by July 6, 2022, will have their grievances dismissed.

The Union did not oppose the request.

The Grievance Settlement Board granted the order.

The applicant union sought judicial review of an arbitrator's decision interpreting the overtime provisions of a collective agreement.

The arbitrator had ruled that overtime pay was based on hours actually worked rather than scheduled hours.

The Divisional Court found the arbitrator's interpretation was logical, transparent, and justified by the wording of the collective agreement.

The court also dismissed a motion to admit fresh evidence, finding the evidence was already before the arbitrator and not essential to the decision.

The application for judicial review was dismissed.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his duty of fair representation complaint against his union as premature.

The applicant had filed the complaint while his grievance arbitration was still ongoing, alleging delay and requesting independent counsel.

The Divisional Court applied the reasonableness standard and upheld the OLRB's decision, finding that dismissing the complaint as premature before the completion of the grievance process was well within the range of acceptable outcomes and not an abuse of process.

The Union filed grievances alleging the Employer failed to reasonably accommodate a Correctional Officer with asthma and sensitivity to cigarette smoke, and breached a prior agreement regarding his General Duty Officer (GDO) assignments.

The Arbitrator found that while the Employer's enforcement of the smoking policy did not amount to a failure to accommodate during the relevant period due to a lack of actual exposures, the Employer did breach the GDO Agreement and the Human Rights Code by assigning the grievor fewer and a more limited range of duties compared to other GDOs.

The Employer's discriminatory treatment caused the grievor significant psychological harm, including PTSD.

The Arbitrator awarded $3,000 for breach of the agreement, $25,000 in general damages, and $20,000 for mental anguish.

This supplementary endorsement addresses a challenge to a sealing order granted in the Companies’ Creditors Arrangement Act (CCAA) proceedings of Laurentian University of Sudbury.

The sealing order covered confidential correspondence between the University and the Ministry of Colleges and Universities, which Laurentian University argued contained sensitive information that, if disclosed, could jeopardize its restructuring efforts.

Parties opposing the sealing order contended there was no evidentiary basis for it.

Applying the two-branch test from Sierra Club of Canada v. Canada (Minister of Finance), the court found that the disclosure posed a real and substantial risk to the University's future viability, that the "commercial" interest extended to the broader community, and that no reasonable alternatives existed given ongoing mediation.

Consequently, the court maintained the confidentiality of the exhibits and the existing sealing order.