D. Wray

The City of Toronto sought judicial review of a labour arbitrator's decision substituting a 30-day suspension for the discharge of a municipal standards officer.

The officer had been terminated for alleged anti-Black racism and harassment after an incident involving two Black women in a closed park.

The City argued the arbitrator erred by requiring proof of racial motivation for a finding of discrimination and by failing to transparently treat the evidence.

The Divisional Court dismissed the application, finding the arbitrator reasonably responded to the City's specific allegations that the officer had singled out the complainants, and that there were no exceptional circumstances to justify interfering with the arbitrator's factual findings.

The applicant union sought judicial review of an Ontario Labour Relations Board decision upholding the constitutionality of Bill 66, which amended the Labour Relations Act to deem municipalities as non-construction employers.

The union argued this violated section 2(d) of the Charter by nullifying their collective agreements and subcontracting protections.

The Divisional Court dismissed the application, finding the Board correctly applied binding precedent and that the amendments did not substantially interfere with the right to a meaningful process of collective bargaining.

The respondent union brought a motion to strike portions of an affidavit filed by the applicant employer in support of an application for judicial review of a labour arbitration award.

The affidavit summarized evidence and proceedings from the arbitration hearing.

The Divisional Court granted the motion, finding that the affidavit did not fall within the recognized exceptions for supplementing the record on judicial review, as it was an attempt to reframe the evidence before the arbitrator.

The affidavit was struck with leave to file a reconstituted version containing only exhibits and closing submissions.

The applicant union sought judicial review of an Ontario Labour Relations Board decision certifying a competing union to represent carpenters and carpenters' apprentices employed by the respondent construction company.

The Board had determined that the applicant's existing collective agreement did not cover carpenters and carpenters' apprentices, effectively ending the applicant's intervention in the certification application.

The Divisional Court dismissed the application for judicial review, finding that the Board's interpretation of the collective agreement was reasonable and correct based on the plain meaning of the agreement's recognition and jurisdiction clauses.

In CCAA proceedings, the court issued a supplementary costs endorsement following an earlier costs decision.

The issue concerned whether the full amount of a law firm disbursement account should be added to the cost award.

After reviewing detailed particulars, the court found the discounted account represented fair value for services rendered and that the disbursements were reasonable.

The court approved inclusion of the full amount of the account as a disbursement and revised the total costs award accordingly.

Former directors sought declarations that claims advanced in a Quebec class action concerning pension losses were barred by releases granted during Companies’ Creditors Arrangement Act proceedings.

The court held that it had jurisdiction to determine the motion because the dispute concerned the effect of orders and releases issued within the CCAA restructuring.

The contractual releases executed by the union on behalf of beneficiaries were broadly worded and applied to all claims relating to facts existing at the time of the release, whether known or unknown.

The court found that the claims process and releases extinguished any potential claims against the directors relating to the pension deficit.

Accordingly, the Quebec class action claims against the directors were fully and irrevocably released.

In CCAA proceedings, the debtor companies sought approval of a debtor-in-possession (DIP) financing facility and a super-priority DIP lenders’ charge ranking ahead of other encumbrances, including potential pension-related claims.

Two unions opposed the motion, arguing that granting super priority would undermine fiduciary duties owed to pension plan beneficiaries and that the evidentiary record was insufficient to justify the relief.

The court held that the statutory requirements under s. 11.2 of the Companies’ Creditors Arrangement Act were satisfied and that DIP financing was necessary to maintain operations and conduct a sales or restructuring process.

Applying the doctrine of federal paramountcy, the court found that the CCAA could override conflicting provincial pension legislation where necessary to avoid bankruptcy and facilitate restructuring.

The DIP facility and super-priority charge were approved.

The Ontario Labour Relations Board issued a brief decision to correct an inadvertent omission in its November 20, 2001 decision.

The Board added December 10, 2001 to the schedule of continuation dates for the hearing.

The Ontario Labour Relations Board issued a procedural decision regarding a certification application by the applicant union to displace the intervenor union, and a related unfair labour practice complaint.

The Board identified four outstanding issues and determined that it will first address the scope of the bargaining unit description and the list of eligible voters before dealing with the remaining allegations.

Continuation dates were scheduled.

The applicant union applied under section 68 of the Labour Relations Act, 1995 for a declaration that it acquired the rights, privileges, and duties of the predecessor union following a transfer of jurisdiction.

The transfer was part of a broader settlement agreement between the two unions to resolve ongoing raiding disputes, conditional upon the applicant demonstrating 40% membership support and winning a Board-supervised representation vote.

The responding employer objected, arguing the application was premature because the transfer of jurisdiction was conditional at the time of filing.

The Board rejected the employer's argument, finding that section 68 allows the Board to conduct representation votes to confirm a successorship claim.

Since the applicant satisfied the conditions and won the representation vote, the Board granted the application and declared the applicant the successor trade union.

The applicant, a key grip, filed an application alleging that his union breached its duty of fair representation under section 74 of the Labour Relations Act by refusing to advance his termination grievance to arbitration.

The applicant was terminated for leaving the set without permission and approving a false time sheet.

The union investigated the grievance and its executive board decided not to proceed to arbitration, primarily because the applicant admitted to approving the false time sheet, which the union felt undermined its relationship with the producer.

The Board dismissed the application, finding that the union's investigation was sufficient and its decision not to arbitrate was based on relevant considerations and was not arbitrary, discriminatory, or in bad faith.

The applicant filed a complaint alleging that the union breached its duty of fair representation under section 74 of the Labour Relations Act by refusing to take his termination grievance to arbitration.

The applicant was terminated for chronic attendance issues after being placed on a modified work program following a workplace injury.

The union processed the grievance, obtained a legal opinion indicating reinstatement was unlikely, and held a special membership meeting where the members voted not to proceed to arbitration.

The Board dismissed the complaint, finding that the union put its mind to the merits of the grievance, sought legal advice, and made a reasonable decision without acting arbitrarily, discriminatorily, or in bad faith.

The CAW and UFCW filed competing applications for certification regarding employees at Coca-Cola's new Brampton facility.

UFCW Local 175 claimed existing bargaining rights based on a collective agreement provision extending rights to new facilities within a 50-mile radius if staffed by its members.

The Board declined to immediately order a representation vote, finding that the fundamental issue of whether UFCW Local 175 already held bargaining rights for the facility needed to be determined first.

The matter was scheduled for further hearing.

The parties agreed to adjourn the application pending settlement discussions.

The Ontario Labour Relations Board adjourned the matter sine die for a period not exceeding one year, after which it will be deemed terminated if no party requests to proceed.

In a work assignment dispute under section 99 of the Labour Relations Act, 1995, the Ontario Labour Relations Board was asked to make a preliminary sector determination regarding the carpentry portion of concrete forming construction at the Lester B. Pearson International Airport's Central De-Icing Facility.

The work involved underground vaults, holding tanks, and the foundation and above ground base for fresh Glycol tanks.

Applying an end-use analysis, the Board determined that the construction of the underground vaults and holding tanks, which manage effluent without changing its composition, falls within the sewers and watermains sector.

However, the construction of the foundation and above ground base for the fresh Glycol tanks, which are used for the commercial activity of applying fresh Glycol to aircraft, falls within the industrial, commercial and institutional (ICI) sector.

The CAW filed displacement applications for bargaining units at three hospitals currently represented by SEIU.

SEIU objected that the applications were untimely under section 7(4) of the Labour Relations Act, arguing the collective agreements were for a term of less than three years because their effective date was determined by the date of an interest arbitration award under the Hospital Labour Disputes Arbitration Act (HLDAA).

The Board dismissed the objection, finding that the parties had agreed to a six-year term, which prevailed over the default terms in HLDAA.

Therefore, section 7(5) of the Act applied, and the applications were timely.

The applicant filed a complaint against the responding party union, with the employer intervening.

Following a consultation, the parties agreed the applicant would consider private mediation/arbitration and advise the Board.

Instead, the applicant sent multiple letters seeking to defer scheduling until another matter was resolved.

The Board adjourned the matter sine die for a period not exceeding one year and directed the applicant to clarify his legal representation.

The applicants filed an application for a declaration or direction under section 144 of the Labour Relations Act, 1995.

After a hearing, the Ontario Labour Relations Board dismissed the application, finding it was not persuaded to make the requested declarations and directions.

Reasons were to follow.

Three employers applied for judicial review of arbitration awards that reinstated employees who had been discharged following criminal convictions for sexual assault in the workplace.

In each case, the arbitrators had allowed the unions to collaterally attack the criminal convictions and had concluded the employees were innocent.

The Divisional Court granted the applications and quashed the arbitration awards, holding that a criminal conviction cannot be collaterally attacked at a subsequent arbitration.

The doctrine of abuse of process prevents an arbitrator from retrying a criminal case and treating a conviction as merely prima facie evidence.

Two unions, Local 1190 and Local 183, filed competing applications for certification regarding the respondent employer.

A representation vote was held, which Local 1190 won.

Subsequently, Local 1190 withdrew its application and membership evidence.

Local 183 argued it should be certified despite losing the vote, alleging improper collusive behaviour between the employer and Local 1190.

The Board dismissed Local 183's application, noting it did not win the representation vote and the Board had not heard all evidence regarding the allegations of improper conduct.

The Board also declined to impose the usual six-month bar on the unsuccessful unions due to the significant time that had elapsed since the vote.