Evan Schiller

The applicant sought judicial review of an Ontario Labour Relations Board decision that upheld an employment standards officer's orders for unpaid wages to the individual respondents.

The applicant argued the respondents were never employees and raised issues of procedural fairness regarding witness coaching.

The Divisional Court dismissed the application, finding the Board reasonably relied on documentary evidence due to credibility issues on both sides, and held there was no basis to interfere with the Board's factual findings or its failure to address an alternative argument not raised before it.

The Crown appealed a $7,500 fine imposed on a corporate defendant for an Occupational Health and Safety Act violation, arguing the lower courts erred in assessing the corporation's size and applying the parity principle between individual and corporate offenders.

The Court of Appeal allowed the appeal, finding that the lower courts incorrectly restricted consideration of the corporation's economic activity to the local operation and improperly relied on sentencing precedents for individuals.

The fine was increased to $40,000.

The applicant, a temporary help agency, sought judicial review of ten orders to pay approximately $2.8 million in unpaid wages under the Employment Standards Act, 2000.

The applicant bypassed the statutory review process before the Ontario Labour Relations Board, arguing exceptional circumstances due to impecuniosity, as the Act requires paying the ordered amount in trust to access the Board review.

The Divisional Court dismissed the application, finding that the applicant had an adequate alternative remedy before the Board and failed to meet the high evidentiary threshold to establish impecuniosity.

The applicant, a temporary help agency, sought judicial review of an Ontario Labour Relations Board decision affirming an order to pay unpaid wages to twelve workers.

The applicant argued the workers were employed by a subcontractor.

The Divisional Court dismissed the application, finding the Board reasonably concluded that the applicant was the employer under the Employment Standards Act, as the purported subcontractor was not a legitimate enterprise and the applicant exercised control over the workers' assignments.

The applicant employer sought judicial review of an Ontario Labour Relations Board (OLRB) decision upholding an order to pay statutory termination and severance pay to a former employee.

The employee had been terminated for off-duty, intoxicated misconduct involving threats to a co-worker.

The employer argued this constituted 'wilful misconduct' exempting the employee from statutory entitlements.

The Divisional Court applied a reasonableness standard of review and found the OLRB's contextual assessment of the misconduct—considering the employee's 14-year tenure, lack of prior discipline, and intoxication—was reasonable.

The application for judicial review was dismissed.

The applicant sought judicial review of an Ontario Labour Relations Board decision finding that its poultry service workers were not exempt from the Employment Standards Act under the farm worker exemption.

The Board had concluded that because the employees provided services to multiple farms, they were not employed 'on a farm' within the meaning of the exemption.

The Divisional Court applied the reasonableness standard of review and found that the Board's interpretation was consistent with its past decisions and struck a reasonable balance between the purposes of the Act and the exemption.

The application for judicial review was dismissed.

The applicant sought judicial review of an Ontario Labour Relations Board decision determining he was not entitled to severance pay under s. 64 of the Employment Standards Act.

The Board had concluded that the employer's payroll calculation for the $2.5 million threshold was restricted to its Ontario payroll, excluding its global payroll.

The Divisional Court found the Board's interpretation unreasonable, holding that the calculation of payroll under s. 64 is not restricted to Ontario employment and must include global payroll.

The application was allowed and the matter remitted to the Board.

Vixman Construction Ltd. was convicted of two regulatory offences under the Occupational Health and Safety Act (OHSA) following the death of worker William Dean Maguire, who fell approximately 3.6 metres from a work surface at Billy Bishop Toronto Island Airport on March 27, 2018.

The Crown alleged that the company failed to ensure proper fall arrest system configuration and failed to arrange the fall arrest system so that a worker could not hit the ground or an object below the work.

The court imposed a $125,000 fine plus a 25% Victim Fine Surcharge and an 18-month probation order with conditions requiring the company to publish safety information, produce an educational video, and implement enhanced fall protection procedures.

A worker employed by Vixman Construction Ltd. was fatally injured when he fell approximately 3.6 metres from a work surface at Billy Bishop Toronto Island Airport on March 27, 2018.

The Crown prosecuted Vixman under the Occupational Health and Safety Act for failing to ensure that prescribed fall arrest measures and procedures were carried out in the workplace.

Specifically, the Crown alleged violations of Ontario Regulation 213/91 regarding the improper anchoring of a self-retracting lifeline (SRL) and the failure to ensure that the fall arrest system was arranged so that a worker could not hit the ground or an object below the work surface.

The defendant argued a due diligence defence, claiming it had implemented comprehensive safety training, policies, and procedures.

The court found that while Vixman maintained a robust safety program, it failed to enforce critical specific requirements at the job site, including the failure to calculate fall clearances prior to work commencement and the failure to ensure the use of a safe anchoring method.

The court convicted Vixman on both counts, finding that the defendant did not discharge its burden of proving that every reasonable precaution was taken.

Lafarge Canada Inc. pleaded guilty to failing as an employer to ensure that measures and procedures prescribed under section 72 of Ontario Regulation 851 were carried out at its decommissioned cement plant in Zorra Township, Oxford County.

An operational procurement manager died after falling approximately 30 feet from a corroded exterior catwalk that lacked adequate structural integrity and safeguards.

The defendant had a troubling prior record of four workplace deaths and one critical injury since 2003.

The Crown and defence jointly submitted a fine of $400,000 plus costs and surcharges.

The court accepted the joint submission with considerable reluctance, expressing deep concerns about whether the proposed fine would provide sufficient deterrence given the corporation's history of workplace fatalities and the failure to observe obvious safety hazards.

The union filed a Request to Intervene in a human rights application alleging workplace discrimination.

Neither the applicant nor the respondent filed a response to the request.

The Tribunal granted the union intervenor status, noting that a union almost always has an interest in a human rights application involving a member, as potential remedies could impact the union's interests.

The applicant filed a human rights application alleging discriminatory discipline and harassment on the basis of disability following her return from medical leave.

The respondent requested that the Tribunal defer the application because the applicant had also filed four workplace grievances regarding the same incidents of discipline.

Finding significant overlap in the subject matter and a risk of inconsistent findings of fact, the Tribunal deferred the application pending the conclusion of the grievance process.

The applicant filed a human rights application alleging discrimination and harassment on the basis of disability following her return from medical leave.

The respondent requested that the application be dismissed under section 45.1 of the Human Rights Code or deferred pending the outcome of related union grievances.

The Tribunal granted the union intervenor status, denied the request to dismiss as no other proceeding had yet dealt with the substance of the application, and ordered the parties to provide further information regarding the status of the grievances before deciding on deferral.

The applicant sought judicial review of an Ontario Labour Relations Board decision upholding a Ministry of Labour inspector's orders.

The inspector found the applicant in violation of O.Reg. 851/90, s.48 for stacking industrial drums without parallel planks between rows.

The applicant argued its method of staggering drums was a permitted variation under s.2 of the Regulation.

The Divisional Court held that the standard of review was reasonableness and found the Board was correct in concluding that the applicant's method was not a variation but a failure to use any physical separation as required.

The application for judicial review was dismissed.