Craig Flood

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 Greater Essex County District School Board appealed a Divisional Court decision upholding an Ontario Labour Relations Board (OLRB) ruling.

The OLRB found that the school board's construction management activities fell within the definition of 'construction industry' under the Ontario Labour Relations Act, and that receiving compensation for these activities constituted operating a business.

The OLRB also found the school board and other property owners were 'unrelated persons' under the 'non-construction employer' definition.

The Court of Appeal dismissed the appeal, finding the OLRB's decision reasonable and its reasons sufficient.

The moving party brought a motion before a single judge of the Divisional Court to dismiss the responding party's judicial review application on the ground of delay.

The motions judge dismissed the motion, holding that while a single judge has jurisdiction to dismiss for delay in clear cases, the equitable and discretionary nature of judicial review generally requires that the issue of delay be determined by the full panel hearing the application on its merits.

The dismissal was without prejudice to the moving party's right to raise the delay argument before the panel.

The appellant was convicted of sexual assault in 1995 based on the testimony of a single witness.

After a remand from the Supreme Court of Canada, the Court of Appeal considered the admissibility of fresh evidence.

The Court found that trial counsel provided ineffective assistance by failing to use available evidence that could have undermined the credibility of the Crown's sole witness, including evidence of a motive to lie and failure to report the incident.

The Court admitted the fresh evidence, allowed the appeal, quashed the conviction, and ordered a new trial, concluding that the ineffective assistance resulted in a miscarriage of justice.

Air Canada sought judicial review of a labour arbitration award that directed it to offer 90 denied Voluntary Separation Program (VSP) applications to eligible employees.

Air Canada argued the arbitrator exceeded his jurisdiction by modifying the collective agreement and interfering with management rights.

The Divisional Court applied the reasonableness standard of review, finding that the arbitrator was properly interpreting the quantitative language of the Memorandum of Understanding, which required the maximum number of VSPs to be granted.

The application for judicial review was dismissed.

The union brought a motion to vary an order of a single judge that permitted the employer to file affidavit evidence containing notes of a labour arbitration hearing on an application for judicial review.

The Divisional Court granted the motion and struck the affidavit evidence, finding that the motions judge erred in law by failing to properly apply the Keeprite standard.

The court held that affidavit evidence is only admissible in rare circumstances to show a complete absence of evidence on an essential point or a breach of natural justice, neither of which were established by the employer.

The applicant sought judicial review of an Ontario Labour Relations Board decision finding that the departure of a 'key man' to the applicant company constituted a sale of a business under the Labour Relations Act, 1995.

The Divisional Court applied the patent unreasonableness standard of review, noting the Board's specialized expertise and the strong privative clauses in the Act.

The Court found there was evidence to support the Board's factual findings and dismissed the application for judicial review, awarding costs to the respondent unions.

Two government employees were dismissed after being convicted of sexually assaulting people under their care.

The appellant union grieved their dismissals, and the grievance settlement board ruled that the criminal convictions were only prima facie evidence of guilt, allowing the union to lead rebuttal evidence.

The Supreme Court of Canada held that the doctrine of abuse of process bars the relitigation of the employees' guilt for the offences for which they were convicted.

The appeal was dismissed.

The employee was convicted of sexually assaulting a young boy in the course of his employment as a recreation instructor.

The employer subsequently dismissed him.

The union grieved the dismissal.

At the arbitration, the arbitrator allowed the union to relitigate the employee's culpability, ultimately finding the employee innocent and ordering his reinstatement.

The Divisional Court quashed the arbitrator's decision.

On appeal, the Court of Appeal upheld the Divisional Court's ruling, holding that the arbitrator erred in law.

The Court found that permitting the relitigation of a final criminal conviction in a grievance arbitration, where the facts and issues are identical, violates the finality principle and constitutes an abuse of process.

The appellant appealed an order of the Divisional Court.

The appeal was heard together with a companion appeal involving the City of Toronto and the Canadian Union of Public Employees.

For the reasons provided in the companion appeal, the Court of Appeal dismissed this appeal with costs.

Three employers applied for judicial review of arbitration awards that reinstated employees who had been discharged following criminal convictions for sexual assault in the workplace.

In each case, the arbitrators had allowed the unions to collaterally attack the criminal convictions and had concluded the employees were innocent.

The Divisional Court granted the applications and quashed the arbitration awards, holding that a criminal conviction cannot be collaterally attacked at a subsequent arbitration.

The doctrine of abuse of process prevents an arbitrator from retrying a criminal case and treating a conviction as merely prima facie evidence.