Ian J. Fellows

The Crown appealed a Superior Court decision striking down the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which eliminated TTC employees' right to strike and replaced it with binding interest arbitration.

The Court of Appeal dismissed the appeal, holding that the complete ban on strikes violates the employees' right to meaningful collective bargaining under s. 2(d) of the Charter.

The Court further found that the Crown failed to justify the infringement under s. 1, as it did not demonstrate that the complete ban was minimally impairing or that its salutary effects outweighed the deleterious effects on the workers' Charter rights.

The Applicants challenged the Toronto Transit Commission Labour Disputes Resolution Act, 2011, arguing it infringed their freedom of association under s. 2(d) of the Charter by prohibiting the right to strike and replacing it with compulsory binding interest arbitration.

The court found the Act substantially interfered with meaningful collective bargaining and was not justified under s. 1 of the Charter, as the TTC was not an "essential service" in the constitutional sense, and the economic and equity concerns did not justify the complete prohibition of the right to strike.

The Act was declared unconstitutional and of no force and effect.

The union filed a policy grievance arguing that seven newly created positions should be included in the bargaining unit.

The Board found it was functus officio regarding the union's argument on the scope of the recognition clause, as that issue had been previously decided.

On the alternative argument that the positions performed bargaining unit work, the Board examined the Customer Care Coordinator (CCC) and Project Officer (PO) positions.

The Board dismissed the grievance regarding the CCC position, finding its core functions differed significantly from the Station Attendant position.

However, the Board upheld the grievance regarding the PO position, finding its duties were substantially similar to the bargaining unit Project Coordinator position, thereby drawing it into the bargaining unit.

The union requested that the Grievance Settlement Board order the employer to recall two witnesses who had already completed their testimony.

The union argued that the witnesses had given contradictory testimony in a separate proceeding before a different arbitrator regarding their use of an internal document to determine whether positions were excluded from the bargaining unit.

The employer opposed the request, arguing that the document related only to statutory exclusions for confidential duties, which was not the basis of the union's claim.

The Arbitrator dismissed the union's request, finding that the witnesses' prior testimony was not strictly contradictory and that recalling them for cross-examination on the document would not serve a useful purpose, as the union's claim relied on similarity to existing bargaining unit positions rather than statutory exclusions.

The applicants' motion for leave to appeal an order denying an interlocutory injunction was previously dismissed on jurisdictional grounds.

The respondent sought costs on a substantial indemnity scale, arguing the applicants unnecessarily ran up costs by pursuing the motion despite being warned the appeal route was to the Court of Appeal.

The court declined to award substantial indemnity costs, finding the jurisdictional issue was not straightforward.

Costs were fixed at $20,000 on a partial indemnity basis, reflecting the complexity of the jurisdictional issue and the need for the respondent to address the merits of the leave motion.

The applicants sought leave to appeal an order denying their application for an interlocutory injunction to prevent the respondent from implementing random drug and alcohol testing pending a grievance arbitration.

The respondent argued the Divisional Court lacked jurisdiction because the order was final, not interlocutory.

The court agreed, finding that because the injunction was sought by way of an application, the dismissal of that application finally determined the proceeding.

Consequently, the order was final and any appeal lies to the Court of Appeal.

The motion for leave to appeal was dismissed for want of jurisdiction.

The applicants sought an interlocutory injunction to restrain the Toronto Transit Commission from implementing random drug and alcohol testing for safety-sensitive employees pending the outcome of a policy grievance arbitration.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicants failed to demonstrate irreparable harm, as any privacy breaches or wrongful dismissals could be compensated with damages.

Furthermore, the balance of convenience favoured the respondent due to the significant public interest in transit safety and evidence of a workplace drug and alcohol problem.

The motion for an injunction was dismissed.

The employer requested to bifurcate the proceeding to hear a preliminary legal argument regarding the scope of the bargaining unit.

The Grievance Settlement Board had previously denied a similar request.

The employer argued that changed circumstances, specifically particulars provided by the union and the filing of two new policy grievances, warranted reconsideration.

The Board declined to exercise its discretion to bifurcate, citing policy concerns about halting proceedings midstream for reconsideration based on changed circumstances, and finding that the criteria for bifurcation were not substantially met as a favorable decision for the employer would not dispose of the entire grievance.

The employer brought a preliminary motion to bifurcate the proceeding, arguing that the Board should first determine its motion that the Board was functus officio regarding the scope of the bargaining unit before hearing the merits of the grievance relating to the inclusion/exclusion of seven specific positions.

The union opposed bifurcation.

The Board reviewed the arbitral jurisprudence on bifurcation and concluded that while the preliminary issue was separate and distinct from the merits, bifurcating the proceeding would not result in any saving of time or resources, nor would it dispose of the entire grievance.

The Board declined to exercise its discretion to bifurcate the proceeding and directed that all issues be heard together.

The applicant employer sought judicial review of a Grievance Settlement Board arbitration award that ordered rectification of a collective agreement's recognition clause.

The Board found that exclusionary language regarding office and technical staff had been inserted by mistake.

The Divisional Court held that the standard of review for an arbitrator's application of the equitable doctrine of rectification is reasonableness.

The Court upheld the Board's decision to rectify the agreement by removing the mistakenly inserted language.

However, the Court found the Board's subsequent interpretation of the rectified clause and its order for the parties to draft new language to be unreasonable, and set aside that portion of the award.

The applicants, a mother and her son who has autism, alleged discrimination with respect to services by a GO Transit bus driver and Metrolinx.

The bus driver, believing he was being stalked by the son, requested a transit safety officer or police officer to identify him.

A police officer boarded the bus and questioned the applicants.

The Tribunal found that while the driver's actions were inappropriate and caused the applicants significant stress, there was no evidence that the driver was aware of the son's disability prior to the police intervention, or that his actions were motivated by the disability.

The applications were dismissed for having no reasonable prospect of success.

The Amalgamated Transit Union, Local 1587 requested intervenor status in two human rights applications alleging discrimination based on disability.

The individual respondent is a member of the union's bargaining unit.

The Tribunal granted the union intervenor status, noting its established practice to do so when an application involves a union member and the outcome may affect other members or the union itself.

The union filed a policy grievance alleging the employer failed to recognize certain positions as falling within the bargaining unit.

The parties asked the Board to interpret the recognition clause.

The Board held that the recognition clause did not create an 'all employee' bargaining unit, but was limited to the classifications specified in the schedules or developed under article 9.

However, the Board found that the general exclusion of 'office and technical staff' was inserted by mistake during drafting and did not reflect the parties' agreement.

The Board applied the doctrine of rectification to remove the general exclusion of office and technical staff from the collective agreement.

The Tribunal issued a Notice of Intent to Defer the applicant's human rights application because of an ongoing grievance arbitration proceeding based on the same facts and human rights issues.

The applicant opposed the deferral, arguing that arbitration could take years.

The Tribunal deferred the application, finding that it is the most fair, just, and expeditious way to proceed, as grievance arbitrators have the power and responsibility to enforce human rights statutes, and concurrent proceedings could lead to contrary findings.

The applicant filed a human rights application against the corporate respondent and two personal respondents.

The union requested intervenor status, which was granted.

The respondents requested a summary hearing, which was denied.

The respondents also requested the removal of the personal respondents.

Applying the Persaud factors, the Tribunal found that the corporate respondent was vicariously liable for the actions of the personal respondents and capable of satisfying any remedial order.

The request to remove the personal respondents was granted.

The applicant filed human rights applications against her employer, the Toronto Transit Commission, and her union, alleging discrimination in employment on the basis of disability.

The respondents requested a summary hearing to dismiss the applications for having no reasonable prospect of success.

The Tribunal dismissed the allegations regarding the termination of the applicant's employment and all allegations against the union, finding no evidence linking the respondents' actions to the applicant's disability.

However, the Tribunal allowed the allegation regarding a delayed wage increase to continue in the Tribunal process.

The respondent employer filed a Request for Order During Proceedings seeking the production of the applicant's unredacted medical records dating back to 1997.

The applicant opposed the request, arguing the redacted information was not arguably relevant and production would violate her privacy.

The Tribunal found that the applicant had made her health arguably relevant through her testimony.

The Tribunal ordered the production of unredacted medical records, but limited the temporal scope to the period from September 2004, when the applicant first referenced her health, to February 2013, her last day of testimony.

The applicant, a transit operator, alleged discrimination on the basis of colour and sex against her supervisor regarding a comment about a washroom break and subsequent discipline for insubordination.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success and considered a request to dismiss under section 45.1 of the Human Rights Code.

The Tribunal dismissed the discrimination allegation regarding the comment for having no reasonable prospect of success, as there was no evidence beyond the applicant's perception linking the comment to her race or gender.

The Tribunal dismissed the allegations regarding the discipline under section 45.1, finding that the substance of the allegations had been appropriately dealt with and settled in a prior grievance process.

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 union filed a policy grievance regarding the employer's failure to recognize certain positions as bargaining unit positions.

The employer brought a preliminary motion arguing the Board lacked jurisdiction because the union referred the grievance to arbitration outside the mandatory time limits.

The union conceded the referral was late but argued the employer waived its right to object.

The Board found that the employer continued to discuss the merits of the grievance with the union for over two years without ever raising the timeliness issue, only objecting on the eve of the arbitration hearing.

The Board concluded the employer's conduct amounted to a waiver of the time limits and dismissed the employer's motion.