John Paul Wearing

The respondents requested that the human rights application alleging age discrimination be dismissed under s. 45.1 of the Human Rights Code, arguing that grievance proceedings and an internal investigation had appropriately dealt with its substance.

The Tribunal found that the arbitration awards did not address the harassment allegations and that an internal investigation is generally not a 'proceeding' within the meaning of s. 45.1.

The request to dismiss was denied and the matter was scheduled for mediation.

The applicant filed a human rights application alleging discrimination based on disability following his termination after a workplace injury.

The applicant had also commenced a civil action in the Superior Court of Justice based on the same facts, seeking damages for breach of the Human Rights Code.

The Tribunal dismissed the application under section 34(11) of the Code, which bars an application when a civil proceeding seeking remedies for the same alleged infringement has been commenced and not finally determined or withdrawn.

The applicant requested an adjournment of the hearing until February 2012 because he was deported from Canada after his refugee claim was denied, but he married a Canadian citizen and expected to receive a visa to return.

The respondents opposed the request, arguing the applicant had no standing and that a delay would prejudice their ability to call witnesses.

The Tribunal found that the applicant's deportation constituted extraordinary circumstances justifying an adjournment and that there was no concrete evidence of prejudice to the respondents.

The request for an adjournment was granted, with the rescheduled dates made peremptory to the applicant.

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent by unilaterally reducing his commission from 18% to 9%.

The trial judge awarded a 15-month notice period, 3 months of Wallace damages for a toxic work environment, and 8 years of unpaid vacation and public holiday pay.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on constructive dismissal, the Bardal factors for notice, the Wallace damages, and the respondent's entitlement to statutory holiday and vacation pay under the Employment Standards Act.

The applicant filed an application for termination of bargaining rights.

The responding party union challenged the voters list, asserting that the individuals were not at work or not performing bargaining unit work on the application date, and sought extensive document production from the employer.

The Board denied the document production request, finding the union was seeking documents to find a case rather than support one, given its prior agreement on the job site and its routine inspections.

After hearing credible testimony from the three individuals, the Board ruled they were properly on the list.

The ballots were counted, resulting in a vote against the union, and the Board declared the union no longer represented the employees.

The applicant filed a termination application naming Local 46 as the responding party.

Local 46 and the Ontario Pipe Trades Council (OPTC) argued the application should be dismissed because the OPTC, as the employee bargaining agency, was the only proper responding party and the application was not delivered to it.

The Board held that an affiliated bargaining agent like Local 46 holds bargaining rights and is a proper responding party.

The Board found the applicant complied with the delivery requirements under section 63(3) of the Labour Relations Act, 1995 and the Board's Rules by delivering the application to Local 46.

The employer applied to the Pay Equity Hearings Tribunal objecting to a Review Officer's order regarding the calculation of compensation for female job classes.

The Tribunal held that a shift premium available to male comparators must be provided to female job classes on the same terms, as the female classes' existing shift premium was illusory due to scheduling preconditions.

The Tribunal also found that a paid meal break for female job classes was not a benefit to be included in compensation, as employees remained under the employer's control.

Finally, the Tribunal ruled that the cost of maintaining pay equity and preventing the wage gap from widening cannot be included in the 1% of payroll dedicated to closing the existing wage gap.

The applicant union filed an application under section 63 of the Labour Relations Act, alleging a sale of a business from Steinberg to Ferlisi.

Steinberg had surrendered its lease for a supermarket premises, and the landlord subsequently leased the premises to Ferlisi, an operator of ethnic supermarkets.

Ferlisi also purchased unwanted equipment left by Steinberg at the landlord's insistence.

The Board found no nexus between Steinberg and Ferlisi, noting that Ferlisi's operation was targeted to a specific ethnic community and was an expansion of its own pre-existing business rather than a continuation of Steinberg's business.

The application was dismissed.

The grievor, a management employee, exercised her surplus rights to accept a new position classified as management.

Unbeknownst to her, the union had grieved the position's exclusion from the bargaining unit.

The employer later conceded the union's grievance and reclassified the position into the bargaining unit, resulting in the grievor losing management benefits and career opportunities.

The grievor alleged constructive dismissal.

The Public Service Grievance Board held that while constructive dismissal does not apply under the statutory grievance scheme, the employer violated the grievor's working conditions by failing to treat her fairly and equitably when it withheld information about the classification dispute.

The Board ordered the employer to place the grievor in a suitable management position and reimburse her for lost amounts, including union dues.

The complainant union filed an unfair labour practice complaint alleging the employer violated the statutory freeze period under section 79 of the Labour Relations Act by unilaterally opening its retail store on Sundays.

The store had never previously been open on Sundays.

The employer argued it was responding to market pressures from competitors and that Sunday shifts were strictly voluntary.

The Board found that while the employer has the right to manage its operations and respond to market pressures, opening on Sundays was not "business as usual" given the unique legal and social history of Sunday as a non-working day.

The Board concluded the employer breached the statutory freeze but declined to order remedial relief.

The applicant union sought a declaration under section 63 of the Labour Relations Act that a sale of a business occurred between Canada Safeway Limited and the respondent.

The respondent had subleased a former Safeway location and purchased some fixtures after Safeway closed the store.

The respondent extensively renovated the premises to open an ethnically-oriented supermarket.

The Board found that the respondent did not acquire Safeway's business, but merely purchased idle assets to expand its own successful, pre-existing business.

The application was dismissed.

The applicant union sought certification for a bargaining unit of drivers and warehousemen at the respondent's Hamilton location, and requested the inclusion of employees at the Oakville and St. Catharines branches, as well as two order desk dispatchers at Hamilton.

The respondent argued for separate bargaining units for each location and claimed the dispatchers were managerial.

The Board held that the geographical scope should include all three locations due to a strong community of interest and the viability of a larger unit.

The Board also found that the two dispatchers did not exercise effective control over the drivers' employment relationship and were therefore employees, not managers.

A formal certificate was issued for the combined unit.

One Board member dissented.

The applicant union alleged that the respondent company's acquisition of a sublease and certain equipment from a former Safeway store constituted a sale of a business under section 63 of the Labour Relations Act.

The respondent company, which operated ethnically-oriented supermarkets, argued it merely acquired the right to use the premises to expand its own existing business.

The Board found that the respondent did not acquire Safeway's business, but rather purchased idle assets to expand its own successful going concern that catered to a different market.

The application was dismissed.

The union filed an unfair labour practice complaint and a related employer application after Kennedy Lodge, a nursing home, announced it would contract out the work of its unionized nurse's aides to Medox, an outside agency, resulting in the termination of approximately 92 bargaining unit employees.

Kennedy Lodge cited severe financial difficulties and the need to reduce wage costs as the reasons for the decision.

The Ontario Labour Relations Board found that Kennedy Lodge would retain fundamental control over the nursing care provided by the aides, meaning Kennedy Lodge would remain the true employer of the aides supplied by Medox.

Alternatively, the Board found that Kennedy Lodge and Medox were related employers under section 1(4) of the Labour Relations Act.

The Board concluded that the arrangement was not a valid contracting out under the collective agreement and that replacing bargaining unit employees with non-union personnel to avoid collective bargaining obligations violated sections 50, 64, and 66 of the Act.

The Board issued declarations binding Kennedy Lodge and Medox to the collective agreement.

A dissenting member would have found the subcontracting valid and dismissed the complaints.

The applicant union sought a declaration that the respondent was bound by a collective agreement between the union and Dominion Stores Limited, arguing that the respondent's leasing of premises formerly operated by Dominion constituted a sale of a business under section 63 of the Labour Relations Act.

The Ontario Labour Relations Board dismissed the application, finding that the respondent's operation of an ethnically oriented supermarket at the location was an expansion of its own pre-existing business rather than a continuation of Dominion's business.

The Board noted the hiatus between operations, the extensive renovations, and the lack of transfer of goodwill or assets other than the lease.

The intervening employees requested an adjournment of the hearing because they received only seven days' notice and their counsel needed more time to prepare.

The Board granted the adjournment.

The complainant then requested that the intervening employees pay its costs for the day.

The Board denied the request, noting that it was not satisfied with the amount of notice given to the intervening employees and that it would be inappropriate to exact costs as a condition of the adjournment.

The complainant filed a section 68 complaint against the union regarding its decision not to take his discharge grievance to arbitration.

The union and the employer brought a preliminary motion to dismiss the complaint due to a nine-month delay in filing.

The Board dismissed the preliminary motion, finding that the delay was not extreme enough to cause severe prejudice to the respondents' ability to mount a defence or to their collective bargaining relationship.

The matter was directed to be relisted for a hearing on the merits.

The union filed a complaint alleging that the employer discharged the grievor due to anti-union animus, contrary to section 66(a) of the Labour Relations Act.

The grievor, who was the sole employee responsible for the union's organizing drive, walked off her shift after complaining that her section of the restaurant was unfairly overloaded.

The employer maintained that her departure constituted a resignation and refused to allow her to return to work.

The Board found that the employer was unaware of the grievor's union activities at the time of her discharge and that the decision was based entirely on her conduct of leaving customers unattended.

The complaint was dismissed.

The applicant union applied for certification in the construction industry.

The union filed membership evidence for more than fifty-five percent of the employees in the bargaining unit.

However, statements of desire opposing the certification were also filed, signed by employees who had previously signed union cards.

The Board held a hearing to determine whether the statements of desire were voluntary.

The majority of the Board concluded that the statements were signed voluntarily, as management was not involved in their origination or circulation, and the employees did not sign out of fear of employer reprisals.

A dissenting Board member found that management had created a climate that thwarted voluntary expression.

The matter was directed to continue for hearing in conjunction with a related unfair labour practice complaint.

The applicant employee sought to terminate the respondent union's bargaining rights under section 57(1) of the Labour Relations Act.

The Board found that the employer had previously paid the applicant's legal fees for a similar anti-union petition during a prior certification application.

Because this financial link between the employer and the applicant was known to other employees, the Board could not be satisfied that the current petition was signed voluntarily and without fear of employer involvement.

The application was dismissed.