Bonnea Channe

The Grievor, a Plant Service Person, was terminated after a baggie containing marijuana flakes and a strong odour of marijuana were discovered in the employer-issued vehicle he had just finished using.

The Employer relied entirely on circumstantial evidence, as no drug test was administered and the baggie's contents were not tested.

The Union grieved the termination, arguing the investigation was flawed and the evidence insufficient.

The Arbitrator dismissed the grievance, finding that on a balance of probabilities, the circumstantial evidence established the Grievor possessed and consumed marijuana at work.

Given the safety-sensitive nature of the position and the Grievor's failure to acknowledge wrongdoing, termination was deemed an appropriate penalty.

The applicant employer sought judicial review of an arbitrator's decision regarding the calculation of a terminated employee's separation allowance under a collective agreement.

The employer argued the arbitrator's findings on the start date, leaves of absence, and part-time pro-rating were unreasonable, and that the refusal to allow viva voce evidence breached procedural fairness.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the collective agreement was reasonable and entitled to deference.

The court also held that the employer was afforded procedural fairness, as the parties had agreed to proceed by written submissions and the proposed viva voce evidence would not have affected the outcome.

In an ongoing arbitration regarding the reasonableness of the Employer's Fitness for Duty Policy following the legalization of cannabis, the Union sought production of a Senior Management Team briefing note and related email exchanges.

The Employer claimed these documents were exempt from disclosure based on solicitor-client privilege.

The Arbitrator found that the briefing note, co-authored by in-house legal counsel, and the email exchanges, which sought legal advice regarding a potential ban on recreational cannabis use, were protected by solicitor-client privilege.

The Arbitrator also rejected the Union's argument that the Employer had waived privilege by failing to identify the documents earlier in the proceedings.

The documents were ordered not to be produced.

The Canadian Broadcasting Corporation (CBC) applied for judicial review of a Grievance Procedure Arbitrator's (GPA) decision ordering the disclosure of a redacted workplace harassment investigation report to the union's Local Grievance Committee.

The CBC argued the GPA's decision was not reviewable, that the GPA lacked jurisdiction, and that the CBC was denied procedural fairness.

The Divisional Court held that the GPA's decision was reviewable because the GPA exercised a statutory power of decision under the Canada Labour Code.

The Court found the disclosure order was reasonable and within the GPA's broad jurisdiction to resolve disputes over the exchange of relevant information.

The Court also dismissed the procedural fairness arguments, finding the CBC had ample opportunity to make submissions.

The application for judicial review was dismissed.

The Peel District School Board (PDSB) brought a motion to dismiss the plaintiffs' action for delay, approximately eight years after its commencement.

The action had not progressed beyond the pleadings stage.

The court applied the test for dismissal for delay, finding the delay inordinate and inexcusable.

Despite the plaintiffs' assertion that the delay was due to their former lawyer's misconduct, they failed to provide direct evidence to support this claim or rebut the presumption of prejudice.

The court found that the delay created a substantial risk that a fair trial would not be possible, and consequently, granted the PDSB's motion, dismissing the action.

In a policy grievance challenging the employer's absolute prohibition on off-duty cannabis use for safety-sensitive positions, the union sought an order limiting the employer's evidence due to an alleged failure to provide full particulars.

The arbitrator declined to make an order limiting evidence at this stage, noting the union could object at the hearing.

The arbitrator directed the employer to provide written submissions on why it should not be ordered to file its expert report before the union.

The arbitrator also ordered the employer to produce drafts of the impugned policy provisions, finding them arguably relevant to the policy's reasonableness, subject to any claim of solicitor-client privilege.

The Union filed policy and individual grievances challenging the Employer's amended Fitness for Duty Policy, which prohibited all recreational use of cannabis for employees in safety-sensitive positions and required disclosure of medical cannabis prescriptions.

In an interim decision, the arbitrator addressed the order of proceeding and production of medical records.

The arbitrator directed the Union to proceed first, as it bore the legal onus to establish its allegations of unreasonableness and discrimination, and there was no compelling reason to depart from the usual order.

Regarding production, the arbitrator ordered third-party health providers to disclose the grievors' files to Union counsel first to vet for arguably relevant material relating to cannabis use, with the Employer to bear the costs of disclosure from its occupational health management providers.

The Union sought an order to consolidate two policy grievances and five individual grievances regarding the Employer's Fitness for Duty Policy, specifically its provisions on cannabis use and impairment testing.

The Employer opposed the consolidation, arguing the grievances raised distinct issues.

The Arbitrator found that while there was a continuum of issues, hearing all grievances together would be unwieldy.

The Arbitrator directed that the prohibition policy grievance and three related individual grievances be heard together, while the impairment testing policy grievance and a related individual grievance be heard separately.

The Union grieved the Employer's decision to remove the grievor from his job as a transit bus driver after a drug test revealed his use of medical cannabis.

During the hearing, the Employer sought to call Dr. Neal Sutton as an expert witness to opine on the safety of a daily medical cannabis user driving a bus.

The Union objected, arguing Dr. Sutton lacked the requisite expertise and objectivity, given his prior involvement in advising the Employer on the grievor's drug test.

The Arbitrator held a voir dire and determined that Dr. Sutton, as a physician who prescribes cannabis and advises employers on its effects, is qualified to give expert evidence.

The Arbitrator also found that Dr. Sutton's relationship with the Employer goes to the weight of his evidence rather than its admissibility, applying the threshold test from White Burgess.

The union grieved the employer's failure to offer Tier 1 overtime opportunities to Tier 3 employees, specifically the grievor.

The employer admitted the breach of the collective agreement but argued the grievor was not qualified to perform the work and would not have accepted the shifts anyway.

The arbitrator found that the grievor was capable of performing the Tier 1 work.

However, based on the evidence, the arbitrator concluded that the grievor would not have accepted the overtime shifts had they been offered.

Therefore, no monetary remedy was awarded.

The union filed a grievance alleging the employer violated the collective agreement by failing to offer overtime to Tier 3 employees.

At step 1 of the grievance procedure, the employer acknowledged the error and committed to posting overtime for both classifications in the future, but declined to pay the requested compensation.

The union advanced the grievance to step 2, where the employer denied the grievance, stating it was unfeasible for Tier 3 employees to perform the work.

The union raised a preliminary issue, arguing the step 1 response was a binding concession on liability.

The arbitrator agreed, finding the employer's step 1 response was a clear and unequivocal admission of a breach, leaving only the issue of remedy to be determined.

The applicant, a provincially incorporated company that installs and maintains fibre optic cable for telecommunications networks, sought judicial review of an Ontario Labour Relations Board decision certifying its bargaining unit under provincial law.

The applicant argued its operations were vital, essential, or integral to federally regulated telecommunications companies and thus subject to federal jurisdiction.

The Divisional Court agreed, finding the applicant's work was highly integrated with and integral to the ongoing operations of federal telecommunications undertakings.

The application for judicial review was allowed and the OLRB decision was quashed.

The applicants' motion for leave to appeal an order denying an interlocutory injunction was previously dismissed on jurisdictional grounds.

The respondent sought costs on a substantial indemnity scale, arguing the applicants unnecessarily ran up costs by pursuing the motion despite being warned the appeal route was to the Court of Appeal.

The court declined to award substantial indemnity costs, finding the jurisdictional issue was not straightforward.

Costs were fixed at $20,000 on a partial indemnity basis, reflecting the complexity of the jurisdictional issue and the need for the respondent to address the merits of the leave motion.

The applicants sought leave to appeal an order denying their application for an interlocutory injunction to prevent the respondent from implementing random drug and alcohol testing pending a grievance arbitration.

The respondent argued the Divisional Court lacked jurisdiction because the order was final, not interlocutory.

The court agreed, finding that because the injunction was sought by way of an application, the dismissal of that application finally determined the proceeding.

Consequently, the order was final and any appeal lies to the Court of Appeal.

The motion for leave to appeal was dismissed for want of jurisdiction.

The applicants sought an interlocutory injunction to restrain the Toronto Transit Commission from implementing random drug and alcohol testing for safety-sensitive employees pending the outcome of a policy grievance arbitration.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicants failed to demonstrate irreparable harm, as any privacy breaches or wrongful dismissals could be compensated with damages.

Furthermore, the balance of convenience favoured the respondent due to the significant public interest in transit safety and evidence of a workplace drug and alcohol problem.

The motion for an injunction was dismissed.

The applicant filed a human rights application alleging discrimination in employment based on sex, race, and ethnic origin.

The allegations stemmed from his supervisor's emails regarding his attendance, a written warning for his conduct during a meeting, and the employer's handling of his grievance.

The Tribunal held a summary hearing to determine if the application should be dismissed for delay or having no reasonable prospect of success.

The Tribunal found that while the 2012 allegations were timely as part of a series of incidents, the application had no reasonable prospect of success because the applicant could not establish that he was disadvantaged or that the employer's actions were linked to a prohibited ground under the Code.

The application was dismissed.

The applicant filed a human rights application against his employer and two individuals.

The applicant's union, CUPE Local 1883, filed a request to intervene.

A summary hearing was scheduled but the Tribunal failed to provide notice to the union.

On consent of the parties, the summary hearing was adjourned to allow notice to be given to the union.

The Tribunal also granted the union's unopposed request to intervene, consistent with its practice of granting intervention status to bargaining agents.

The plaintiff brought a motion to set aside a registrar's order dismissing his wrongful dismissal action for delay.

The action was dismissed after the plaintiff failed to respond to a status notice.

The plaintiff's counsel argued the delay was due to the plaintiff's diagnosis with a brain tumour and subsequent death, which made obtaining instructions difficult.

The court applied the Reid factors and found that while the medical condition explained some delay, it did not excuse the failure to request a status hearing or the 11-month delay in bringing the motion to set aside.

Furthermore, the plaintiff failed to rebut the presumption of prejudice to the defendant, and actual prejudice was found due to the plaintiff's death and the loss of evidence regarding mitigation.

The motion was dismissed.