Douglas K. Gray

The appellant employer appealed a Divisional Court decision upholding an arbitral award.

The arbitrator found that the employer was required under the collective agreement to pay the Ontario Health Premium on behalf of its employees.

The Court of Appeal dismissed the appeal, finding that the standard of review was patent unreasonableness and that the arbitrator's interpretation of the collective agreement was reasonable.

The court held that the reference to 'cost' in the agreement embraced the Ontario Health Premium, regardless of whether it represented 100 per cent of the cost of medicare.

The appellant employer appealed a Divisional Court decision dismissing its application for judicial review of an arbitral award.

The arbitrator had ruled that the employer was obligated under the collective agreement to reimburse employees for the newly enacted Ontario Health Premium.

The Court of Appeal held that the standard of review for the arbitrator's decision was patent unreasonableness, even though the arbitrator interpreted a statute of general application, because the statutory interpretation was secondary to interpreting the collective agreement.

The Court found the arbitrator's award was not patently unreasonable and dismissed the appeal.

The applicant municipality sought judicial review of a labour arbitration award that granted part-time nurses overtime pay for regularly scheduled Saturday shifts.

The arbitrator had found that Saturday work fell outside the normal work week defined in the collective agreement.

The Divisional Court applied the patent unreasonableness standard of review and concluded that the arbitrator's interpretation was rationally supported by the language of the agreement.

The application for judicial review was dismissed.

The City of Hamilton applied for judicial review of an arbitrator's award which found that the City was required to pay the Ontario Health Premium on behalf of its employees under the collective bargaining agreement.

The Divisional Court determined that the appropriate standard of review was patent unreasonableness, as the arbitrator was interpreting the collective agreement, not the legislation.

The Court found the arbitrator's conclusion that the premium constituted a 'cost' of the medicare plan under the agreement was not patently unreasonable, and would have been upheld even on a correctness standard.

The application for judicial review was dismissed.

The grievor, a nurse, was dismissed for innocent absenteeism after a non-work-related injury frustrated her employment contract.

The employer refused to pay severance pay, relying on s. 58(5)(c) of the Employment Standards Act, which exempts employers from paying severance to employees whose contracts are frustrated due to illness or injury.

The union grieved the denial as a violation of s. 15 of the Charter.

The Court of Appeal upheld the Divisional Court's finding that the provision discriminates against disabled employees by perpetuating the stereotype that they will not return to the workforce, and declared the provision unconstitutional.

The applicant union sought judicial review of an arbitrator's decision upholding the termination of a grievor for innocent absenteeism.

The Divisional Court applied the pragmatic and functional approach, determining that the standard of review for whether the grievor suffered from a disability was reasonableness.

The court found the arbitrator reasonably concluded the grievor was not disabled, given the lack of medical evidence regarding his absences.

The court also upheld the arbitrator's finding of just cause for dismissal based on the grievor's attendance record.

The application for judicial review was dismissed.

The employee filed a reprisal complaint with the Ontario Labour Relations Board alleging he was dismissed for raising health and safety concerns.

The employer subsequently brought a motion asking the Board to state a case for contempt to the Divisional Court, alleging the employee improperly distributed documents.

The Board consolidated the two proceedings over the employee's objection.

The employee did not testify, and the Board dismissed both the reprisal complaint and the contempt motion.

The Divisional Court quashed the Board's decision, finding the consolidation breached the employee's right to a fair hearing.

The Court of Appeal allowed the employer's appeal, holding that the consolidation was not patently unreasonable and did not breach the duty of fairness, as the evidence would have been admissible in the reprisal complaint regardless, and the employee was not 'charged with an offence' under section 11 of the Charter during the Board stage of the contempt proceedings.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing her complaint that her union breached its duty of fair representation under s. 74 of the Labour Relations Act.

The Divisional Court applied the patent unreasonableness standard of review.

The Court found that the Board was fully cognizant of the relevant facts and legal principles, and its decision was not patently unreasonable.

The application for judicial review was dismissed with no order as to costs.

The Crown appealed a decision declaring that Regulvar Ontario was not a 'person resident in a designated jurisdiction' under the Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999.

The Act restricted access to construction jobs in Ontario for persons resident in Quebec.

Regulvar Ontario's head office was in Ontario, but 30% of its shares were held by Regulvar Quebec.

The Court of Appeal upheld the application judge's use of the de jure control test from Duha Printers, finding that Regulvar Quebec did not control Regulvar Ontario directly or indirectly.

The appeal was dismissed.

The appellant Crown appealed a declaration that the respondent, Regulvar Ontario, was not a 'person resident in a designated jurisdiction' under the Fairness is a Two-Way Street Act.

The Act restricts construction access for corporations controlled directly or indirectly by residents of Quebec.

Regulvar Quebec owned 30% of Regulvar Ontario's shares, with the rest held by individuals who were directors or officers of Regulvar Quebec.

The Court of Appeal upheld the application judge's use of the de jure control test, finding that Regulvar Quebec did not have the ability to elect the majority of the board of directors.

The appeal was dismissed.

The applicant sought judicial review of an Ontario Labour Relations Board (OLRB) decision finding that the union engaged in bad faith bargaining and imposing a remedy that affected the applicant's 'Me Too' collective agreement.

The Divisional Court applied the pragmatic and functional approach, determined the standard of review was patent unreasonableness, and found that the OLRB had ample evidence and authority to fashion the remedy.

The application for judicial review was dismissed.

The applicant union sought judicial review of a labour arbitrator's decision.

The arbitrator had to determine the meaning of 'without prejudice' in a prior arbitration decision and whether the current case was essentially the same as the prior one.

The Divisional Court applied the pragmatic and functional approach, determined the standard of review was reasonableness, and found the arbitrator correctly applied labour arbitration principles rather than strict common law concepts.

The application for judicial review was dismissed with costs.

The applicant employer sought judicial review of an arbitrator's award which found that the employer could not discharge a grievor for events that were already known and covered by a prior one-day suspension.

The Divisional Court dismissed the application, finding that the arbitrator's conclusion was entirely reasonable on the record and not patently unreasonable.

Costs of $4,500 were awarded to the respondent union.

The employer, Great Blue Heron Gaming Company, and the Mississaugas of Scugog Island First Nation brought motions to stay a decision of the Ontario Labour Relations Board (OLRB) pending judicial review.

The OLRB had determined that the Ontario Labour Relations Act applied to the employer's casino operations on the reserve, rejecting the First Nation's argument that its own Labour Code applied pursuant to aboriginal rights under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the stay motions, finding that while there was a serious issue to be tried, the applicants failed to demonstrate irreparable harm, and the balance of convenience favoured allowing collective bargaining to proceed for the 800 employees who had voted for union representation over a year prior.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his reprisal complaint against his employer, the TTC.

The Board had consolidated the hearing of the applicant's reprisal complaint with a motion brought by the TTC to state a case for contempt against the applicant.

The Divisional Court held that consolidating the two proceedings violated the principles of fundamental justice and procedural fairness, as it forced the applicant to defend against quasi-criminal contempt allegations while pursuing his reprisal claim, leading to adverse inferences when he chose not to testify.

The application for judicial review was allowed and the matter remitted to a differently-constituted panel.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission not to deal with his complaint under s. 34 of the Human Rights Code.

The Divisional Court dismissed the application, finding no error in the Commissioner's conclusion that the complaint could be more appropriately dealt with under the Labour Relations Act and that the applicant had already engaged in mediation during the arbitration process.

The court held that the Commissioner's decision was not patently unreasonable and awarded costs to the respondents.

The applicant moved to strike an affidavit and attachments filed by the respondent on an application for judicial review.

The materials were not before the Commissioner.

The Divisional Court granted the motion, holding that the record on judicial review should essentially be the material before the decision-maker, and the affidavit improperly sought to expand the record regarding the applicant's conduct rather than addressing jurisdictional error.

The applicant union sought judicial review of an Arbitration Board's decision regarding whether the union was entitled to grieve a matter as a union grievance.

The Divisional Court dismissed the application, finding that the Board's disposition of the issue was not patently unreasonable and reflected a careful analysis of the collective agreement.

The union and the employer had a collective agreement providing for a 5% wage increase on October 1, 1993.

The Social Contract Act, 1993 froze public sector compensation but allowed unions to preserve certain increases under s. 24(5), provided they were not merit, cost-of-living, or grid-based increases.

The union elected to preserve the increase.

An arbitrator ruled the increase could not be preserved.

The Divisional Court quashed the award, finding the increase was a simple pay increase that could be preserved, and ordered it paid.

The Court of Appeal upheld the Divisional Court's interpretation on a correctness standard but allowed the appeal in part to remit the matter to a new arbitrator to determine the appropriate remedy.

In an addendum on costs following an appeal, the Court of Appeal applied Rule 49.10(2) of the Rules of Civil Procedure.

The appellant (defendant at trial) had made a pre-trial offer to settle that exceeded the quantum of damages ultimately awarded by the court.

Consequently, the respondent (plaintiff) was awarded party-and-party costs up to the date of the offer, and the appellant was awarded party-and-party costs from that date to the conclusion of the trial, as well as the costs of the appeal.