Katherine Ferreira

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.

The union filed a grievance on behalf of a fixed-term Correctional Officer, alleging the employer violated the collective agreement by failing to convert her to the Regular Service after she performed the same work for over eighteen months.

The union argued the employer's obligation under article 31A.15.1.1 was triggered.

The employer argued there was no continuing need for the specific work to be performed on a full-time basis.

The arbitrator found that the union failed to establish a continuing need for the work of the posted position to be performed on a full-time basis, and dismissed the grievance.

The parties attended before the Divisional Court to advise that a conditional resolution had been reached in the application for judicial review.

On consent, the court adjourned the application to the next available date, to proceed only if the resolution is not completed.

No costs were ordered for the attendance.

The Registrar proposed to refuse to renew the appellant's licence as a vendor and builder under the New Home Construction Licensing Act, 2017.

The appellant appealed the proposal.

The Tribunal found that the past and present conduct of the appellant's directors and officers, which included multiple convictions for building unregistered homes and failing to enroll homes with Tarion, did not afford reasonable grounds for belief that the business would be carried on in accordance with the law and with integrity and honesty.

The Tribunal ordered the Registrar to renew the licence subject to strict conditions, allowing it to remain valid only for homes already under construction and to be revoked immediately upon their completion or after one year.

The applicant employer sought judicial review of an arbitrator's decision finding it breached the collective agreement by permitting a third-party hotel to use non-union workers for stage events.

The employer argued the arbitrator unreasonably extended the union's jurisdiction beyond theatrical events and misconstrued the prohibition on contracting out.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement, including the use of extrinsic evidence and the broad interpretation of the word 'permit', was internally coherent, logical, and reasonable.

The applicant sought judicial review of an Ontario Labour Relations Board (OLRB) decision dismissing her duty of fair representation complaint against her union due to unreasonable delay.

The applicant had delayed filing her complaint for 11.5 months after learning the union would not pursue her grievance to arbitration.

The Divisional Court found the OLRB's decision to dismiss the complaint summarily was reasonable, as the delay was excessive, inadequately explained, and prejudicial to the union.

The application for judicial review was dismissed.

In an ongoing grievance arbitration under the Crown Employees Collective Bargaining Act, the parties failed to meet a previously established timetable regarding amounts the employer asserted were owing.

Following a hearing, the arbitrator ordered a new timetable, requiring the union to advise the employer of its position on amounts owing for the 2015-2019 period by November 20, 2020, and for the pre-2015 period by January 29, 2021.

The Union filed grievances alleging that the Employer violated the Unified and Correctional Collective Agreements in its method of resuming salary progression after a two-year freeze.

The Union argued that employees should immediately recover the steps they missed during the freeze.

The Employer maintained that employees should simply resume progression from their current step on their anniversary date.

The Arbitrator dismissed the grievances, finding no language in the collective agreements to support the Union's position that employees were entitled to immediately recover suspended steps, and held that the Employer's approach was consistent with the nature of a salary progression freeze.

The Employer applied for judicial review of an Ontario Labour Relations Board decision certifying the Union as the bargaining agent for heavy equipment operators.

The Employer argued it was denied procedural fairness when the Board found its pleadings deficient regarding the status of 18 employees and refused to allow amendments.

The Divisional Court dismissed the application, finding no denial of procedural fairness as the Board applied established pleading standards for construction industry status disputes.

The Court also held the Board's refusal to allow amendments was reasonable due to the prejudice the delay would cause the Union.

The applicant union sought judicial review of an arbitration award upholding the layoff of two unionized employees.

The union argued the arbitrator unreasonably applied the wrong standard of review by deferring to the employer's assessment of the employees' relative abilities rather than determining correctness.

The Divisional Court dismissed the application, finding the arbitrator's approach was consistent with established arbitral consensus and reasonable.

The court also rejected arguments regarding the arbitrator's delay in issuing the decision.

The applicant employer sought judicial review of the Ontario Labour Relations Board's decision to certify a union for a bargaining unit of employees at a specific hotel location.

The employer argued the bargaining unit was inappropriate due to employee interchange across multiple locations and that the Board denied procedural fairness by excluding certain casual employees without an oral hearing.

The Divisional Court dismissed the application, finding the Board's determination of the bargaining unit and employee status was reasonable and fell within its core expertise.

The Court also found no denial of procedural fairness, as the Board provided ample opportunity for written submissions.

The applicant employer sought a stay of an Ontario Labour Relations Board decision certifying the respondent union as the exclusive bargaining agent for a group of its employees, pending judicial review.

The employer argued it would suffer irreparable harm by being forced to choose between pursuing judicial review or complying with its obligation to bargain in good faith, and by expending unrecoverable resources on collective bargaining.

The Divisional Court dismissed the motion, finding that the employer could bargain in good faith while reserving its rights pending judicial review, and that mutual, unremarkable process costs do not constitute irreparable harm.

The union grieved that a store manager performed bargaining unit work, such as facing up stock and bagging purchases, contrary to a Letter of Understanding in the collective agreement.

The arbitrator found that while the tasks were typically performed by bargaining unit employees, they were also historically performed by managers as overlapping duties.

Given the brief duration and infrequency of the manager's activities over a six-month period, the arbitrator applied the de minimis principle and concluded there was no practice or intention to avoid scheduling bargaining unit employees.

The grievance was dismissed.

In a grievance arbitration, the arbitrator ordered the grievor to obtain her complete medical file from the Centre for Addiction and Mental Health (CAMH) and produce it to union counsel.

Union counsel was directed to produce the arguably relevant portions to employer counsel.

The disclosure was made subject to strict confidentiality conditions, limiting dissemination to key advisors on a need-to-know basis, prohibiting advisors from making copies, and requiring the destruction of all but one copy of the documents at the conclusion of the proceedings.

The Union filed grievances challenging the Employer's decision to withhold pay and impose discipline on correctional officers who engaged in a work refusal at the Hamilton-Wentworth Detention Centre.

The work refusal was triggered by a missing metal electrical cover plate, which the officers feared could be weaponized.

The officers refused to work unless they were permitted to wear protective vests and a Level 2 search of the entire institution was conducted.

The Ministry of Labour determined that the officers did not have the right to refuse work under section 43 of the Occupational Health and Safety Act.

The Arbitrator agreed, finding that the danger of homemade weapons is inherent in a correctional officer's work and that the Employer's search protocol and vest policy were normal conditions of employment.

The Arbitrator also dismissed the Union's claims that the Employer's actions constituted a reprisal or a lock-out, concluding that the Employer was justified in withholding pay and imposing discipline for the unlawful work refusal.

The employer brought a motion to strike portions of the grievor's Will Say Statement in an arbitration concerning workplace accommodation and termination.

The employer argued the evidence was irrelevant, unparticularized, and included privileged mediation discussions.

The union also requested that the grievor remain anonymous due to the personal medical information involved.

The Grievance Settlement Board granted the anonymity request and allowed the employer's motion in part, striking evidence regarding other employees, pre-disability events, post-grievance Stage 2 meetings, and confidential mediation discussions, while permitting some evidence of alleged differential treatment.

The applicant sought judicial review of a Grievance Settlement Board decision dismissing a grievance that sought to hold the employer vicariously liable for a fellow employee's tort of intrusion upon seclusion.

The fellow employee had used the employer's equipment to access the grievor's Employment Insurance records.

The Divisional Court held that the applicable standard of review was reasonableness.

Applying the principles from Bazley v Curry, the court found the Tribunal's conclusion that the wrongful act was not sufficiently related to conduct authorized by the employer to be reasonable.

The application for judicial review was dismissed.

The applicant, a former employee of the respondent hospital, alleged discrimination and harassment on the basis of race, colour, ancestry, ethnic origin, disability, sex, and reprisal.

After hearing the applicant's evidence, the Tribunal found that the applicant failed to establish a link between the adverse treatment she experienced—including exclusion by co-workers, discipline, and termination—and any protected grounds under the Human Rights Code.

The Tribunal noted issues with the applicant's credibility and perception of events, and found no evidence that the employer's actions were discriminatory or constituted reprisal for enforcing Code rights.

The application was dismissed.

The applicant hospital sought judicial review of an interim order made by the Ontario Labour Relations Board requiring the provision of properly trained security personnel in a forensic psychiatric unit.

The respondents argued that reviewing the interim order before the Board had completed its proceedings would be an inappropriate, fragmented approach.

The Divisional Court agreed, finding the application premature as the Board's proceedings were still ongoing and the impugned order was only one aspect of a broader safety regime being considered.

The application was dismissed with costs awarded to the respondent unions.

The Employer brought preliminary motions to bifurcate the proceedings and to strike certain particulars provided by the Union.

The grievances alleged a failure to accommodate the grievor's physical and psychological restrictions, leading to her refusal to return to an unsafe workplace and her subsequent termination for job abandonment.

The Grievance Settlement Board dismissed the motion to bifurcate, finding that the issues were intertwined and bifurcation would not increase efficiency.

The Board allowed the motion to strike particulars regarding the OPSEU Pension Trust as being too remote, but permitted the remaining particulars, including those pre-dating May 1, 2013, as they were relevant to establishing a pattern of harassment and the ongoing accommodation process.