Frank Cesario

The applicant union sought judicial review of an arbitrator's decision upholding an employee's termination for failing to maintain equipment and falsifying records.

The union argued it was denied procedural fairness because the arbitrator based the decision on willful neglect rather than deliberate sabotage.

The Divisional Court dismissed the application, finding that the employer had clearly argued willful neglect before the arbitrator and the union had ample opportunity to respond.

The applicant union sought judicial review of an arbitrator's award upholding the respondent hospital's method for calculating Early Retirement Allowances and Voluntary Exit options for part-time employees.

The union argued the hospital's approach, which prorated both years of service and salary, produced absurd results and penalized part-time employees compared to full-time employees.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the collective agreement was reasonable and within the range of acceptable outcomes, as the arbitrator was not required to assume part-time employees must be treated identically to full-time employees under a different agreement.

The appellant and the deceased entered into a separation agreement in which the deceased represented that the appellant was solely entitled to his pension survivor benefits.

The agreement also provided that if the deceased remarried, he would make all possible efforts to have his new spouse release her claims to his pension.

The deceased remarried and subsequently died before retiring.

The appellant brought an action claiming entitlement to the pre-retirement death benefit, arguing the separation agreement constituted an assignment under the Pension Benefits Standards Act, 1985.

The Court of Appeal dismissed the appeal, holding that the separation agreement did not amount to a clear and unequivocal assignment of the pre-retirement death benefit, particularly given the express recognition that a subsequent spouse might not release her rights.

The applicant, a former employee, sought judicial review of a Pay Equity Hearings Tribunal decision that dismissed her application under the Pay Equity Act for failing to establish a prima facie case.

She argued the Tribunal made findings of fact without evidence and denied her procedural fairness by refusing an adjournment to retain counsel.

The Divisional Court found the Tribunal's decision reasonable, noting the applicant failed to plead material facts challenging the pay equity plan and had ample notice that her application could be dismissed early.

The application for judicial review was dismissed with costs.

The applicant employer sought judicial review of a Grievance Settlement Board decision reinstating a probationary employee.

The employee had been terminated for performance issues shortly after disclosing a struggle with depression.

The Board found the termination was arbitrary and discriminatory.

The Divisional Court quashed the Board's decision, holding that the employer had repeatedly communicated performance expectations and the termination was based on legitimate performance concerns, making the Board's findings of arbitrariness and discrimination unreasonable.

The applicant, TVO, sought judicial review of a labour arbitration award which found it breached a collective agreement by allowing a non-bargaining unit member to record interviews that were later posted online as podcasts.

The Divisional Court quashed the award, finding the arbitrator's decision unreasonable because the recordings were originally made for research purposes, a permitted activity for non-bargaining unit members.

The court also found the arbitrator breached procedural fairness by refusing to consider the intervener union's de minimis argument.

Following an appeal with mixed success, the court issued a brief endorsement ordering that no costs be awarded to either party.

The applicant school board sought judicial review of a labour arbitration award that reinstated a teacher who had been dismissed for alleged misconduct involving students.

The board argued the arbitrator applied an incorrectly high standard of proof, drew an unreasonable adverse inference, and improperly excluded similar fact evidence.

The Divisional Court majority dismissed the application, finding that although the arbitrator misstated the law by referencing an intermediate standard of proof, a reading of the award as a whole demonstrated he actually applied the correct civil standard of a balance of probabilities.

The majority also found the arbitrator's treatment of the adverse inference and similar fact evidence was reasonable.

The dissenting judge would have allowed the application, concluding the arbitrator's misstatement of the standard of proof was a fatal error of law.

The employer appealed a Small Claims Court judgment awarding the plaintiff $25,000 for wrongful dismissal.

The plaintiff, a casino dealer, was terminated after an altercation with a co-worker where he used profanity, followed by insubordination during the investigative suspension.

The Divisional Court allowed the appeal and ordered a new trial on liability, finding that the trial judge failed to apply the McKinley proportionality test and misapprehended material evidence regarding the plaintiff's prior disciplinary history.

The court upheld the trial judge's assessment of damages at eight months' notice.

Following an earlier decision striking the plaintiff’s statement of claim as disclosing no reasonable cause of action and finding the action frivolous and vexatious, the court addressed the issue of costs.

The defendant sought $10,367.59 on a partial indemnity basis.

Applying s. 131(1) of the Courts of Justice Act and the factors under Rule 57.01 of the Rules of Civil Procedure, the court held that a successful party is generally entitled to costs unless strong reasons exist otherwise.

Although the plaintiff asserted an inability to pay, the court found that the defendant had incurred additional unnecessary expense due to the plaintiff’s conduct and that the motion’s outcome was reasonably predictable in light of related prior litigation.

The court fixed costs at $7,500 as a fair and reasonable amount.

The applicant college sought judicial review of an arbitration award that allowed two individual grievances, finding that two sessional employees had worked enough 'full months' to qualify for a rollover to probationary regular employees.

The Divisional Court found the arbitration board's reasons to be unintelligible and incomprehensible, failing the minimum requirements for deference.

The court quashed the award regarding the individual grievances and remitted them to a newly constituted Board of Arbitration.

The defendant brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the plaintiff’s statement of claim on the basis that it disclosed no reasonable cause of action and was frivolous, vexatious, and an abuse of process.

The self-represented plaintiff alleged retaliation, defamation, statutory breaches, and breach of an implied employment contract following a workplace incident while placed through a temporary employment agency.

The court held that alleged breaches of regulatory statutes such as the Occupational Health and Safety Act and the Employment Standards Act do not independently create civil causes of action absent express statutory authorization.

The pleading also failed to properly plead defamation and could not support an implied employment contract claim against the defendant because the plaintiff’s employer was the temporary help agency.

The court found the allegations speculative and unsupported by facts and struck the claim, dismissing the action.

The moving party sought summary judgment requiring a pension plan administrator to pay her a pre‑retirement death benefit under a federally regulated pension plan following the death of her former spouse.

The claim relied on a separation agreement stating that she would receive survivor benefits from the pension.

The court considered whether s. 25(4) of the Pension Benefits Standards Act permitted assignment of a pre‑retirement death benefit to a former spouse and whether the language of the parties’ separation agreement and related documents constituted an effective assignment.

Although the court held that the statute permits assignment of such benefits, it concluded the wording of the separation agreement and related direction did not clearly and unambiguously effect an assignment.

The statutory priority of the surviving spouse therefore prevailed and the death benefit was payable to the deceased member’s later spouse.

The employer applied for judicial review of an arbitrator's award that ordered it to repay funds to an employee.

The employee, a station collector, had erroneously credited customers' debit cards instead of debiting them, resulting in a shortage.

The arbitrator found the employee responsible for the shortage under the collective agreement but held the employer could not recover the funds because it failed to mitigate its loss.

The Divisional Court granted the application and quashed the award, finding the arbitrator's imposition of a duty to mitigate unreasonable in the context of a contractual debt and the collective agreement's clear language.

The applicant, a former unionized employee discharged for cause, sought to set aside a single judge's order quashing her application for judicial review of a labour arbitration award.

The single judge had quashed the application on the basis that an individual unionized employee lacks standing to seek judicial review of an arbitration award absent exceptional circumstances.

The Divisional Court panel found that the single judge correctly applied the law and that there was no evidence of deficiency in the union's representation to warrant an exception.

The motion was dismissed with costs awarded to the respondent on a partial indemnity scale.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his complaint of discrimination against a Children's Aid Society and its employees, as well as the Tribunal's refusal to reconsider the decision.

The applicant alleged discrimination based on sex, family status, and disability (Multiple Sclerosis) arising from a child access dispute and a request for a mental health assessment.

The Divisional Court dismissed the application, finding the Tribunal's decisions were reasonable, there was no denial of procedural fairness, and no reasonable apprehension of bias was established.

The applicant, a nursing student on academic probation, sought judicial review of a decision by the Dean of Nursing suspending her from a clinical placement, which effectively required her withdrawal from the program.

She alleged a reasonable apprehension of bias, failure to apply the professional suitability policy, and procedural unfairness.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias, substantial compliance with the policy, and that the subsequent appeal hearing was a hearing de novo that cured any alleged procedural defects.

The applicant employer sought judicial review to quash an arbitration award concerning a retiring employee's entitlement to vacation pay.

The employee retired in April after taking five weeks of his six-week annual vacation entitlement.

The employer argued that under the collective agreement, the vacation entitlement should be prorated to the time worked in the year of retirement, and sought recovery of the extra vacation pay.

The arbitrator found the collective agreement language clear and unambiguous, holding that proration only applied to unused earned vacation, and the employee owed no repayment.

The Divisional Court held that the arbitrator's interpretation was reasonable and dismissed the application for judicial review.

The applicant sought judicial review to quash ongoing proceedings before the Ontario Labour Relations Board, arguing that the Board's mid-hearing decision to require will-say statements and limit examination-in-chief to thirty minutes was procedurally unfair.

The Divisional Court dismissed the application, finding no prospect of real unfairness on the record and noting that judicial review of administrative action during a pending hearing should generally be avoided until the hearing is completed.

The applicant City sought judicial review of an arbitration award regarding the promotion rights of a firefighter.

The arbitrator had ruled that the firefighter was not qualified for promotion to Lieutenant because he did not have fifteen years of continuous service in the Fire Fighting Division, interpreting 'service' as synonymous with 'seniority'.

The Divisional Court quashed the award, finding the arbitrator's interpretation unreasonable.

The Court held that the collective agreement clearly distinguished between 'service' and 'seniority', and the arbitrator improperly inserted the word 'continuous' into the provision, contrary to the parties' expressed intent.