Karen Ensslen

The applicant employer sought a hearing before the Pay Equity Hearings Tribunal regarding a Review Officer's order concerning the maintenance of pay equity using the proxy method of comparison.

The Tribunal was tasked with specifying procedures to ensure employees who established pay equity through the proxy method continue to have access to male comparators for maintenance, following a Court of Appeal decision.

The Tribunal held that an organization that established its pay equity plan using the proxy method must continue to use it for maintenance unless changed circumstances under section 14.1 of the Pay Equity Act permit another method.

The Tribunal directed the parties to identify a proxy employer, request information, evaluate key female job classes, and determine whether any pay equity gaps have re-emerged, noting that arguments regarding non-discriminatory factors for pay differentials should be addressed under section 8 of the Act.

In CCAA proceedings involving a major Canadian retailer in insolvency, Employee Representative Counsel brought a motion to approve a Hardship Programs Term Sheet providing three programs to alleviate hardships for vulnerable non-unionized former employees: a Trust Program extending and settling long-term disability benefits for approximately 157 former employees funded through a pre-existing trust, a Woodwards Replacement Policy funded through a company reserve fund, and an Employee Hardship Program funded by $250,000 in foregone secured lender payments.

The court approved the Term Sheet as fair, reasonable, beneficial to stakeholders, and consistent with the purpose and spirit of the CCAA.

Ancillary relief including releases, declaratory relief characterizing Employee Hardship Fund payments as non-earnings for EI purposes, and a sealing order protecting personal information of LTD recipients and trustees were also granted.

An unsupported objection by one individual was dismissed as lacking credible basis.

The Ontario College of Teachers brought disciplinary proceedings against the member for professional misconduct.

The member admitted to making inappropriate social media posts containing sexual innuendo, engaging in inappropriate text message conversations with a former student shortly after her graduation, and failing to report the student's disclosures regarding another teacher's inappropriate conduct.

The Discipline Committee accepted the member's guilty plea, finding that his actions constituted disgraceful, dishonourable, and unprofessional conduct, as well as conduct unbecoming a member.

Accepting a joint submission on penalty, the Committee ordered a reprimand, a 12-month suspension of the member's certificate of qualification and registration, and the successful completion of a course on professional ethics and boundary violations.

The Court of Appeal for Ontario dismissed the appeal of the Amalgamated Transit Union, Local 1587, upholding the Divisional Court’s decision to quash an arbitration award that reinstated five employees dismissed by Metrolinx for sexual harassment.

The Court found that the arbitrator made legal and factual errors, including failing to recognize Metrolinx’s statutory duty to investigate workplace harassment even in the absence of a formal complaint, and improperly relying on myths and stereotypes about victim behaviour.

The matter was remitted to a new arbitrator for reconsideration.

The applicant employer sought judicial review of an arbitrator's decision reinstating five employees who were terminated for engaging in a sexually harassing WhatsApp group chat.

The arbitrator had found the investigation flawed because the targeted employee refused to file a formal complaint and the conduct occurred off-duty.

The Divisional Court quashed the decision, holding that the arbitrator's reasoning was unreasonable as it failed to recognize the employer's statutory duty under the Occupational Health and Safety Act to investigate incidents of workplace harassment regardless of whether a formal complaint is filed.

The matter was remitted to a different arbitrator.

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

The Applicants, Nordstrom Canada Retail, Inc. and related entities, sought an Amended and Restated Initial Order (AIRO) under the Companies’ Creditors Arrangement Act (CCAA).

The motion, unopposed and supported by the Monitor, requested an extension of the stay period, approval of a Key Employee Retention Plan (KERP) and its associated charge, and increases to the Administration and Directors' Charges.

The court granted the AIRO, finding the stay extension appropriate given the applicants' good faith and diligence in pursuing an orderly wind-down, the KERP reasonable and necessary for restructuring, and the charge increases modest and well-supported.

The applicants, Nordstrom Canada Retail, Inc., Nordstrom Canada Holdings Inc., LLC, and Nordstrom Canada Holdings II, LLC, sought an initial order under the Companies’ Creditors Arrangement Act (CCAA) for a stay of proceedings to facilitate an orderly wind-down of their Canadian operations.

Nordstrom Canada, a subsidiary of Nordstrom US, had incurred significant losses and Nordstrom US had ceased financial support.

The court granted the requested relief, including a 10-day stay of proceedings, extension of the stay to Nordstrom Canada Leasing LP and, for limited purposes, to Nordstrom US (Parent Stay), approval of an Employee Trust funded by Nordstrom US, appointment of Employee Representative Counsel, and authorization for certain pre-filing payments to critical suppliers.

The court also approved Administration and Directors' and Officers' charges.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

The employer applied for judicial review of a Grievance Settlement Board decision regarding its sick leave administration practices.

The employer had retained a third-party administrator and required employees to communicate with it, complete comprehensive medical forms for absences over five days, and use a specific form for return-to-work accommodations.

The Arbitrator found these practices violated the collective agreement, which specified communication with supervisors and limited the scope of medical information required.

The Divisional Court dismissed the application, finding the Arbitrator's interpretation of the collective agreement to be reasonable and consistent with arbitral jurisprudence protecting employee privacy.

The Applicants, under CCAA protection, brought a motion seeking an order to authorize and approve the Revised Fourth DIP Amendment.

The motion was opposed by the USW and GIP.

The court granted the motion, finding that the DIP solicitation process was competitive, robust, and fair, and that the Revised Fourth DIP Amendment was the best available proposal.

The amendment addressed previous concerns by providing a maturity date past the winter build period, a sufficient commitment amount, and minimal conditions on covenants.

The applicants (Algoma) sought two declarations: (i) that amounts owing under a promissory note from Portco to Algoma had been set off against amounts Algoma owed to Portco under a Cargo Handling Agreement; and (ii) that Algoma's right to terminate related Port Agreements was not subject to Portco's payment of the GIP Loan, which was tied to the set-off amounts.

The court granted the first declaration, finding that equitable set-off applied given the close connection between the parties and transactions, and the manifest inequity of requiring Algoma to pay Portco while the parent company (EGFL) failed to pay the promissory note.

However, the court denied the second declaration, holding that it would contradict a prior oppression judgment and an assignment agreement which explicitly required the GIP Loan to be paid in full in cash before Algoma could terminate the Port Agreements.

The applicant union sought judicial review of an arbitration award that dismissed a policy grievance concerning the employer's amendment to its photo identification policy.

The amendment discontinued the practice of allowing non-management employees to bring an occasional visitor on transit vehicles without paying a fare.

The Divisional Court held that the arbitrator's interpretation of the collective agreement was reasonable, as the plain wording did not require consideration of past practice.

The Court also found that the arbitrator reasonably concluded the employer's past practice did not give rise to an estoppel, as there was no representation by the employer that the practice would continue.

The application for judicial review was dismissed.

Essar Capital Limited and USW Local 2251 brought motions within a Companies’ Creditors Arrangement Act (CCAA) proceeding.

Essar Capital sought to re-open the Sale and Investment Solicitation Process (SISP) and compel the disclosure of information to Essar Global for a potential bid.

Local 2251 sought court advice on engaging in discussions with Ontario Steel Investments Ltd. regarding potential transactions.

The court dismissed both motions, finding no basis to interfere with the established SISP, noting Essar Global's prior failure to demonstrate financial capability and the lack of a formal bid from Ontario Steel.

The court emphasized the need to maintain the integrity of the court-ordered process and avoid delays detrimental to the restructuring.

The applicant, a police sergeant, brought an application for judicial review of a hearing officer's decision declining to recuse himself for alleged bias during a disciplinary hearing.

The Divisional Court dismissed the application as premature, finding that the applicant had an automatic right of appeal to the Ontario Civilian Police Commission once the penalty phase concluded.

The court reiterated that exceptional circumstances are required to justify early intervention by judicial review when an administrative appeal route exists.

The Ontario College of Teachers brought a motion seeking leave to withdraw allegations of professional misconduct and incompetence against the member.

The withdrawal was sought in exchange for the member entering into an Undertaking and Acknowledgment, which required the member to complete an Additional Qualification course prior to returning to teaching and to provide a copy of his next performance appraisal to the Registrar.

The Discipline Committee found the withdrawal reasonable and in the public interest, and granted the motion.

The Member, a teacher, pleaded guilty to professional misconduct for making inappropriate racial comments, swearing, and crossing professional boundaries with students, including asking a student to buy him something and making a reference letter contingent on a student completing a personal task for him.

Despite previous warnings and training from his school board, the misconduct continued.

The Discipline Committee accepted a joint submission on penalty, ordering a reprimand and coursework on professional boundaries.

The Committee also ordered publication of the decision with the Member's name, emphasizing the need for specific and general deterrence and transparency.

The Member pleaded guilty to professional misconduct relating to a failure to maintain professional boundaries with students.

The Discipline Committee accepted the Agreed Statement of Facts and Guilty Plea, finding the Member committed acts of professional misconduct.

The Committee ordered a reprimand and imposed terms on the Member's Certificate of Qualification and Registration, requiring the successful completion of a pre-approved course on professional boundaries.

The Member, a teacher, pleaded no contest to professional misconduct after instructing three students to remove damaged drywall in a school mezzanine to install a rack.

The Member was aware that the school contained asbestos drywall but believed the mezzanine area was safe, despite warnings and a school asbestos management plan.

The students were exposed to potential asbestos without proper safety procedures.

The Discipline Committee accepted a joint submission on penalty, ordering a reprimand and completion of a safety course.

The Committee also ordered publication of the decision with the Member's name, finding that the serious nature of the health and safety violation warranted transparency and deterrence.

The self-represented appellant sought costs of $9,000 following an appeal, which included fees for counsel who assisted in preparing materials.

The respondent argued for costs of $2,728 on a partial indemnity basis, noting its success on a motion to admit fresh evidence.

The Divisional Court awarded the appellant $3,000 inclusive of disbursements and HST, compensating for disbursements and partial indemnity for counsel assistance, offset by the respondent's successful motion.