James K. McDonald

The applicant sought judicial review of two decisions by the Ontario Labour Relations Board that adjourned his unfair representation complaints against the faculty association pending the outcome of a related grievance arbitration.

The applicant alleged procedural unfairness, reasonable apprehension of bias, and unreasonableness in the Board's decision to grant the adjournment and extend time for the respondents.

The Divisional Court dismissed the application, finding no denial of procedural fairness, no reasonable apprehension of bias, and that the Board's discretionary decision to adjourn the premature complaints was reasonable.

The Court also noted the application was premature as the Board had not yet determined the merits of the complaints.

The applicant filed a human rights application alleging discrimination and failure to accommodate by his employer.

The employer sought to defer the application pending the outcome of concurrent grievance arbitration proceedings.

The union, which had carriage of the grievances, indicated it would not advance the human rights claims at arbitration.

The Tribunal declined to defer the application, finding that because the human rights issues would not be adjudicated in the grievance process, deferral was not appropriate.

The union appealed a Divisional Court decision that quashed an arbitrator's award regarding holiday pay for part-time employees.

The arbitrator had found the collective agreement ambiguous and used extrinsic evidence to rule in the union's favour.

The Court of Appeal held that the arbitrator's decision was subject to a reasonableness standard of review.

Finding that the arbitrator's conclusion on ambiguity and his use of extrinsic evidence were reasonable, the Court of Appeal allowed the appeal and reinstated the arbitrator's award.

The applicant, a university professor, filed a human rights application alleging that his union and its representatives discriminated against him on the basis of ancestry and place of origin by failing to pursue grievances against his employer.

The respondents requested an early dismissal of the application.

The Tribunal found that the application, even as amended, did not set out a factual basis that could give rise to a finding that the union represented the applicant differently based on his ancestry or place of origin, or that the union became a party to the employer's alleged discrimination.

The application was dismissed.

The Association filed a grievance alleging the employer contravened the collective agreement by awarding a Health Care Coordinator position to an external candidate instead of the grievor, an internal candidate.

The arbitrator found the selection process was fundamentally flawed because the employer relied almost exclusively on interview and test scores, failing to consider the grievor's ten years of actual experience in the same position or to check her references.

The arbitrator declared the competition results null and void and ordered a new competition restricted to the grievor and the successful candidate.

The union grieved the termination of the grievor's employment.

The Grievance Settlement Board ordered that a 30-day suspension be substituted for the termination and that the grievor be reinstated to his former position.

The grievor was deemed to be on an unpaid leave of absence for the interim period, abandoned his overtime claims, and was ordered to pay $1,250 in restitution to the employer via payroll deductions.

The applicant filed a duty of fair representation complaint against the union, seeking compensation for a specific period following an arbitration award.

At the consultation hearing, the union undertook to remit the compensation issue back to the arbitrator, and the employer agreed not to object.

Based on these undertakings, the Board adjourned the application sine die for a period not exceeding one year.

The applicant ballet company sought a stay of an interim arbitral award that suspended the non-renewal of the respondent dancer's employment contract and ordered her reinstatement pending a final decision.

The applicant argued the arbitrator lacked jurisdiction to order reinstatement under the Labour Relations Act.

The court dismissed the motion for a stay, finding that while there was a serious question to be tried regarding jurisdiction, the applicant failed to establish irreparable harm.

The balance of convenience strongly favoured the respondent, as a further hiatus in dancing would likely end her career, whereas the applicant would not suffer a fatal blow if she were reinstated.

The grievors challenged the results of a job competition for the new position of Control and Risk Analyst, alleging the selection process was unfair.

The competition utilized a simulation exercise evaluated by a three-person panel using a consensus scoring method, where a single zero score eliminated a candidate.

The Public Service Grievance Board found that the consensus marking scheme was a significant and serious flaw, as it resulted in panel members surrendering their individual judgment.

The grievances were granted, and the employer was ordered to re-run the competition for the affected positions if the parties could not agree to reassess the candidates based on their individual scores.

The applicant union applied for certification to represent an all-employee bargaining unit at a newly formed Crown corporation.

The intervenor union argued that the proposed unit was inappropriate because it would dismantle pre-existing bargaining structures where the intervenor represented supervisory and professional employees.

The Board held that due to the statutory exclusion of successor rights in this privatization, there were no pre-existing bargaining structures binding the new employer.

Applying its standard test, the Board found that an all-employee bargaining unit was appropriate and that the employees shared a sufficient community of interest.

The grievor filed a grievance alleging the employer failed to provide a healthy and safe work environment, resulting in permanent bronchial damage, and sought a transfer to accommodate his medical condition.

During the course of the proceedings, the grievor obtained a permanent, full-time position at a higher classification with another Ministry.

The employer brought a motion to dismiss the grievance for mootness.

The Public Service Grievance Board granted the motion, finding that the factual underpinnings of the case had been eliminated and there was no longer a live controversy or remedy to grant.

The grievor's request for legal and relocation costs was also denied as there was no evidence of bad faith by the employer.

A group of university professors and a librarian challenged mandatory retirement policies at age 65 and the exclusion of those over 65 from employment discrimination protection under provincial human rights legislation.

The majority held that universities were not part of government for Charter purposes under s. 32, so their retirement policies were not directly subject to Charter review.

The Court further held that the statutory exclusion of workers aged 65 and over from protection against age discrimination infringed s. 15(1), but was justified under s. 1 in light of the legislature's cautious approach to complex labour market, pension, and workplace-organization concerns.

The appeal was dismissed, with dissenting judges finding the Charter applicable to universities and rejecting the statutory justification.

The union filed a complaint alleging the employer violated the statutory freeze period and interfered with the union's administration by unilaterally reducing employee hours and dealing directly with employees.

The employer, a newly acquired nursing home, implemented staffing changes resulting in reduced hours for several employees without the union's consent.

The Board found that the collective agreement did not give the employer the right to unilaterally establish new normal hours of work.

The Board held that the employer violated the statutory freeze and interfered with the union by bypassing it to deal directly with employees.

The employer was ordered to compensate affected employees.

The complainant alleged that the respondent union violated its duty of fair representation under section 68 of the Labour Relations Act by dropping his grievance at the fourth stage.

The grievance arose after the complainant was bumped from his position by a more senior employee, despite the complainant's assertion of greater ability and experience.

The union decided not to proceed to arbitration, relying on its established policy that seniority should govern when two employees are at the top rate of their classification.

The Ontario Labour Relations Board dismissed the complaint, finding that the union had directed its mind to the merits of the grievance and made a reasoned decision based on the best interests of the bargaining unit as a whole.

The Board held that the union's preference for seniority over ability in these circumstances was a cogent labour relations reason and did not constitute arbitrary, discriminatory, or bad faith conduct.