Joohyung Lee

The applicant union sought judicial review of an arbitrator's decision dismissing a grievance regarding workplace health and safety following an offender's suicide in a probation office.

An MOL inspector had investigated and issued orders concerning the incident.

The arbitrator found the grievance was barred by issue estoppel, as it raised the same issues as the MOL inspection and the union could have appealed the inspector's orders.

The Divisional Court dismissed the application for judicial review, finding the arbitrator's application of the issue estoppel test and her exercise of residual discretion were reasonable.

Following an award reinstating the grievor with full compensation, the union brought a motion for a partial payment of compensation pending the final calculation of the total amount owed.

The employer opposed the motion, arguing it was an improper request for interim relief that failed to follow the Grievance Settlement Board's procedural rules.

The Arbitrator found that the motion was a procedural step in implementing the merits award, not a pre-merits interim relief application.

Balancing the harm to the grievor from ongoing financial loss against the unlikely risk of overpayment, the Arbitrator ordered the employer to make a partial payment of $75,000 plus interest.

The Association filed a grievance alleging the grievor was subjected to anti-Black racism, harassment, and discrimination.

The Employer brought a preliminary motion to strike numerous paragraphs of the Union's particulars on the basis that they were untimely or precluded by the 'three-year rule'.

The arbitrator found that the Employer had not waived its right to object to timeliness and declined to exercise discretion under s. 48(16) of the Labour Relations Act to extend the time limits, noting the lack of explanation for the delay.

Applying the three-year rule, the arbitrator struck most of the historical particulars, finding they were not probative of the timely allegations and could not serve to demonstrate a violation of the collective agreement.

In a grievance alleging harassment and failure to accommodate, both parties brought preliminary motions regarding the production of the grievor's medical records.

The Employer sought full disclosure of the treating physician's file, while the Union sought strict restrictions on the dissemination of the records, including prohibiting the Employer's instructing client from viewing them.

The Arbitrator ordered the Union to produce the complete medical file to its external counsel for vetting and redaction of irrelevant information, rather than allowing the grievor to vet the records herself.

The Arbitrator also ordered strict safeguards limiting the dissemination of the medical records to specific Employer representatives and requiring their destruction at the conclusion of the proceedings.

The Employer brought a motion to strike paragraphs from the Union's statement of particulars in a harassment grievance, seeking to limit evidence to the three years prior to the filing of the grievance.

The Arbitrator applied the Board's three-year rule, finding no unique or exceptional circumstances to justify a departure.

The motion was granted, striking the impugned paragraphs and limiting the evidence to events within three years of the grievance, subject to the admission of basic background facts.

The Association filed a grievance alleging that the Employer and Canada Life imposed an unreasonable precondition on members receiving negotiated health benefits by requiring blanket consent to obtain personal health information.

The Employer raised a preliminary objection to the Board's jurisdiction over Canada Life's administration of the provision.

The Arbitrator issued procedural directions, ordering the exchange of will-say statements and documentary production prior to the continuation of the hearing on the preliminary issue.

The Employer brought preliminary motions to dismiss a union grievance concerning a workplace fatality at a probation and parole office.

The Employer argued the grievance was barred by issue estoppel, abuse of process, or collateral attack because a Ministry of Labour Inspector had already investigated the incident and issued orders under the Occupational Health and Safety Act, which the Union did not appeal.

The Arbitrator found that the preconditions for issue estoppel were met, as the grievance and the Inspector's orders addressed the same legal and factual questions between the same parties.

The Arbitrator declined to exercise discretion to bypass issue estoppel, concluding that the grievance was barred and dismissing it.

In a production dispute regarding the calculation of damages following a successful discharge grievance, the employer sought documentation relating to the grievor's alternate employment during the mitigation period.

The employer requested Records of Employment (ROEs), letters of offer, and documentation regarding the termination of any jobs held during the mitigation period.

The arbitrator ordered the union to produce the ROEs and letters of offer, as they were arguably relevant to the grievor's duty to mitigate.

However, the arbitrator denied the request for termination documentation, finding that litigating the reasons for the grievor's departure from third-party employers would be disproportionate, potentially prejudicial, and inconsistent with the Board's mandate to resolve disputes efficiently.

The grievor, a correctional officer, was terminated for allegedly watching a female inmate masturbate while on constant watch and making inappropriate comments, as well as for sending an insubordinate email to his manager regarding a payroll error.

The arbitrator found the employer failed to prove the allegations of sexual misconduct, noting the investigation was flawed and the video evidence corroborated the grievor's version of events.

However, the arbitrator found the grievor's email was insubordinate and warranted discipline.

The grievance was upheld, the termination was set aside, and a 3-day suspension was substituted for the insubordination.

The grievor was reinstated with full compensation.

The Employer brought a motion to dismiss the Union's grievance for failing to establish a prima facie case.

The grievance alleged that the Employer arbitrarily denied the grievor an opportunity to participate in a job competition interview after he failed to confirm his attendance by the stated deadline.

The Arbitrator dismissed the Employer's motion, finding that the Union's pleadings provided a legal theory capable of supporting a violation of the Collective Agreement, as it was plausible that Management's decision not to interview the grievor was unreasonable or arbitrary given the circumstances.

The employer brought a motion to dismiss a group grievance for failing to disclose a prima facie case.

The grievance alleged that the employer violated the collective agreement, privacy rights, and various policies by investigating an off-duty altercation between an employee and an off-duty police officer at a bar, which included a manager viewing and recording surveillance video of the incident.

Following the release of the Supreme Court of Canada's decision in York Region, which emphasized the need for arbitrators to explicitly engage in a Charter analysis where constitutional questions arise, the arbitrator concluded that the grievance could not be dismissed at a preliminary stage.

The motion was dismissed, and the matter was directed to proceed to a full hearing on the merits.

The Union filed grievances seeking compensation for missed meal breaks at the Toronto South Detention Centre.

The parties resolved the issue of compensation for meal breaks missed while on escort duties, but disputed whether the remedy should be retroactive beyond thirty days prior to the grievance filing.

The Arbitrator applied the Board's thirty-day rule, finding no exceptional circumstances to extend the remedy further back.

On the second issue, the Arbitrator found that employees who miss a meal break within the institution are entitled to overtime pay for the thirty minutes worked, pursuant to the collective agreement, regardless of the one hour of straight time already paid by the Employer.

The Union brought grievances on behalf of the grievor.

During the hearing, the Employer objected to the Union's cross-examination of a witness regarding the medical impact of the grievor's alleged conduct on the witness's mental health.

The Union also requested the disclosure of the witness's medical records and further production of emails.

The Arbitrator ruled that the medical impact on the witness's mental health was not relevant to the issues in dispute, precluding the line of questioning and denying the request for medical records.

The Arbitrator also declined to order the production of the requested emails, finding them not arguably relevant.

The Union grieved the termination of the Claimant's long-term disability benefits.

The Claimant, who had previously experienced a major depressive episode attributed to workplace harassment, refused to participate in a gradual return-to-work plan at her home position, citing fears of a relapse.

The Arbitrator found that the medical evidence indicated the Claimant's condition was in full remission and she was capable of performing the essential duties of her occupation.

The Arbitrator concluded that the rehabilitation plan proposed by the insurer was reasonable and that the Claimant was not totally disabled at the time her benefits were terminated.

The grievance was dismissed.

The Grievance Settlement Board issued case management directions for an arbitration proceeding between the Union and the Employer.

The Arbitrator set deadlines for the initial production of documents, the exchange of witness declarations, and the filing of a Joint Book.

The directions also outlined the procedure for cross-examining declarants and scheduled a further case management call.

The arbitrator held a case conference to address the grievor's failure to provide a list of disputed facts and repeated breaches of a prior order prohibiting direct contact with the arbitrator.

As the grievor failed to provide the list of disputed facts, the factual allegations in the discipline letters were deemed accepted.

Furthermore, because the grievor violated the order against direct contact six times without apology, the arbitrator dismissed three of the six active grievances as a sanction.

The remaining three grievances (including a discharge grievance) were scheduled for hearing.

The grievor challenged the Employer's calculation of her continuous service date and severance credit date, arguing that a four-month unpaid leave of absence in 2010 should have been paid and counted as service due to alleged discriminatory treatment by her manager.

The Employer argued the grievance was untimely.

The Arbitrator agreed with the Employer, finding the delay of over ten years to be extreme and that there was no proper basis to extend the time limits.

The grievance was dismissed.

The Union filed grievances against the Employer.

In a previous case conference, the arbitrator ordered the Union to provide particulars regarding the allegation that the Employer failed to accommodate the grievor's alleged disability.

The Union failed to provide the particulars because the grievor failed to communicate with the Union.

Consequently, the arbitrator dismissed all grievances and defences relating to the failure to accommodate.

The remaining matters were scheduled to proceed, with a warning that failure by the grievor to attend could result in the dismissal of the remaining grievances.

The employer raised preliminary objections to several grievances filed by the union on behalf of a terminated employee.

The employer argued that grievances relating to a breach of privacy and a delayed Record of Employment (ROE) were inarbitrable because the events occurred after the grievor's termination.

The arbitrator deferred these grievances, noting their arbitrability depends on whether the grievor is reinstated following the hearing of his termination grievance.

The employer also objected to a grievance claiming PTSD injuries, arguing it was untimely and barred by res judicata.

The arbitrator dismissed the PTSD grievance as untimely, finding an extreme delay of over three years without a reasonable explanation.

Finally, the arbitrator declined to strike portions of the union's statement of particulars, noting they are not evidence.

The Union filed a grievance alleging the Employer failed to accommodate the Grievor's permanent medical restrictions by not offering him a temporary or permanent Rehabilitation Officer position.

The Employer brought preliminary motions arguing the accommodation claim did not disclose a prima facie breach of the collective agreement or the Human Rights Code, and that the job posting claim was untimely.

The Arbitrator granted the Employer's motions, finding that the Grievor had already been reasonably accommodated in a temporary control module position, and that the grievance regarding the May 2018 job posting was filed out of time without compelling reasons to extend the time limits.