James L. McDonald

Following the dismissal of the appellants' appeal of a refusal to certify a class proceeding regarding pension plan amendments, the respondents sought costs.

The appellants argued that no costs should be awarded, relying on the public interest and novel point of law provisions under the Class Proceedings Act, 1992.

The Divisional Court found no special circumstances to depart from the general rule that costs follow the event.

Applying the overriding principle of reasonableness, the court awarded costs to the respondents, including disbursements for a responding report on a fresh evidence motion.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.

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 Employer asserted that a binding settlement was reached during a mediation session on February 1, 2002, regarding two grievances filed by the grievor.

The Association argued that no settlement was reached because the handwritten Minutes of Settlement were never signed, the Association's president had not approved the terms, and the parties continued to negotiate substantive terms for months afterward.

The Grievance Settlement Board found that there was no meeting of the minds, as the parties continued to dispute substantive issues such as confidentiality and the timing of compensation payments.

The Board concluded that no settlement was reached and remained seized of the grievances.

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.

Several firefighters filed complaints alleging that their mandatory retirement at age 60 by the municipalities of St. Catharines, Waterloo, and Windsor constituted age discrimination under the Ontario Human Rights Code.

Complaints were also filed against their respective unions for complicity in the discriminatory policies.

The respondent municipalities and unions argued that being under age 60 is a bona fide occupational qualification (BFOQ) for firefighters.

The Board of Inquiry applied the Supreme Court of Canada's test from Etobicoke, requiring the respondents to prove the policy was imposed in good faith and was reasonably necessary for safe and efficient job performance.

Based on extensive medical and physiological evidence, the Board found that all or almost all individuals over 60 lack the necessary aerobic capacity for active firefighting, and that there is a significant, untestable risk of coronary artery disease.

Concluding that individualized testing is impractical and that age 60 is a valid proxy for safety-related job qualifications, the Board upheld the mandatory retirement policies as a BFOQ and dismissed all complaints against the employers and unions.

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.