Ian J. Fellows

The Crown appealed a Superior Court decision striking down the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which eliminated TTC employees' right to strike and replaced it with binding interest arbitration.

The Court of Appeal dismissed the appeal, holding that the complete ban on strikes violates the employees' right to meaningful collective bargaining under s. 2(d) of the Charter.

The Court further found that the Crown failed to justify the infringement under s. 1, as it did not demonstrate that the complete ban was minimally impairing or that its salutary effects outweighed the deleterious effects on the workers' Charter rights.

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 employer sought judicial review of a Grievance Settlement Board arbitration award that ordered rectification of a collective agreement's recognition clause.

The Board found that exclusionary language regarding office and technical staff had been inserted by mistake.

The Divisional Court held that the standard of review for an arbitrator's application of the equitable doctrine of rectification is reasonableness.

The Court upheld the Board's decision to rectify the agreement by removing the mistakenly inserted language.

However, the Court found the Board's subsequent interpretation of the rectified clause and its order for the parties to draft new language to be unreasonable, and set aside that portion of the award.

The applicants, a mother and her son who has autism, alleged discrimination with respect to services by a GO Transit bus driver and Metrolinx.

The bus driver, believing he was being stalked by the son, requested a transit safety officer or police officer to identify him.

A police officer boarded the bus and questioned the applicants.

The Tribunal found that while the driver's actions were inappropriate and caused the applicants significant stress, there was no evidence that the driver was aware of the son's disability prior to the police intervention, or that his actions were motivated by the disability.

The applications were dismissed for having no reasonable prospect of success.

The Amalgamated Transit Union, Local 1587 requested intervenor status in two human rights applications alleging discrimination based on disability.

The individual respondent is a member of the union's bargaining unit.

The Tribunal granted the union intervenor status, noting its established practice to do so when an application involves a union member and the outcome may affect other members or the union itself.

The Tribunal issued a Notice of Intent to Defer the applicant's human rights application because of an ongoing grievance arbitration proceeding based on the same facts and human rights issues.

The applicant opposed the deferral, arguing that arbitration could take years.

The Tribunal deferred the application, finding that it is the most fair, just, and expeditious way to proceed, as grievance arbitrators have the power and responsibility to enforce human rights statutes, and concurrent proceedings could lead to contrary findings.

The applicant filed a human rights application against the corporate respondent and two personal respondents.

The union requested intervenor status, which was granted.

The respondents requested a summary hearing, which was denied.

The respondents also requested the removal of the personal respondents.

Applying the Persaud factors, the Tribunal found that the corporate respondent was vicariously liable for the actions of the personal respondents and capable of satisfying any remedial order.

The request to remove the personal respondents was granted.

The applicant, a transit operator, alleged discrimination on the basis of colour and sex against her supervisor regarding a comment about a washroom break and subsequent discipline for insubordination.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success and considered a request to dismiss under section 45.1 of the Human Rights Code.

The Tribunal dismissed the discrimination allegation regarding the comment for having no reasonable prospect of success, as there was no evidence beyond the applicant's perception linking the comment to her race or gender.

The Tribunal dismissed the allegations regarding the discipline under section 45.1, finding that the substance of the allegations had been appropriately dealt with and settled in a prior grievance process.

The employer applied for judicial review of an arbitrator's award that ordered it to repay funds to an employee.

The employee, a station collector, had erroneously credited customers' debit cards instead of debiting them, resulting in a shortage.

The arbitrator found the employee responsible for the shortage under the collective agreement but held the employer could not recover the funds because it failed to mitigate its loss.

The Divisional Court granted the application and quashed the award, finding the arbitrator's imposition of a duty to mitigate unreasonable in the context of a contractual debt and the collective agreement's clear language.

The applicant requested to reactivate her human rights application two and a half months after the conclusion of a related Ontario Labour Relations Board proceeding, missing the 60-day deadline under Rule 14.4.

The respondent and intervenor opposed the reactivation, arguing it was untimely and prejudicial.

The Tribunal found that while the applicant's reasons for the delay were not entirely reasonable, the respondent and intervenor failed to demonstrate any specific prejudice resulting from the two-and-a-half-month delay.

The Tribunal exercised its discretion to extend the time limit and allowed the request to reactivate the application.

The applicant filed a human rights application alleging discrimination in employment.

The respondent sought early dismissal on the basis that the applicant's grievance had been settled.

The applicant disputed agreeing to the settlement and filed a duty of fair representation complaint with the Labour Relations Board.

The Tribunal granted the union intervenor status and deferred the human rights proceedings pending the outcome of the Labour Relations Board proceedings.

The Crown sought leave to appeal an acquittal of a teacher charged with failing to report a suspicion of sexual abuse under the Child and Family Services Act.

The respondent, a teacher, learned of suspected abuse while acting as a volunteer director for a community basketball program, not during his professional teaching duties.

The Court of Appeal dismissed the application for leave, finding that the trial judge's conclusion that the information was not received in the course of professional duties was a question of mixed fact and law, and the Crown failed to show it was essential in the public interest to grant leave.

The Toronto Transit Commission sought judicial review of an arbitration board's decision that found a two-year lockout for employees failing safety training to be unreasonable.

The Divisional Court granted the application, holding that the board acted unreasonably by implying a duty on the employer to act reasonably without identifying any express language in the collective agreement limiting management rights, nor finding bad faith or disciplinary action.

The award was quashed and remitted to the board to consider whether the lockout intruded on seniority or working conditions provisions, or constituted a disciplinary penalty.

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 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 applicant sought judicial review of a 1997 Ontario Labour Relations Board decision dismissing his complaints against his union under sections 74 and 76 of the Labour Relations Act.

The Divisional Court dismissed the application, finding that the four-and-a-half-year delay in bringing the application was undue and inadequately explained.

Furthermore, applying the patent unreasonableness standard of review, the court held that the Board's conclusion that the union had not acted arbitrarily, discriminatorily, or in bad faith was not patently unreasonable.

The applicant also failed to exhaust alternative remedies regarding the section 76 claim.

The member, a secondary school teacher, faced allegations of professional misconduct for engaging in inappropriate conversations with a 17-year-old female student regarding her personal appearance and sexual relationship.

The member pled no contest to the facts and the Discipline Committee found him guilty of professional misconduct.

Accepting a joint submission on penalty, the Committee ordered a reprimand, a 9-month retroactive suspension, completion of a course on student-teacher boundaries, and a psychiatric assessment proving fitness to teach before returning to the classroom.

The applicant filed a duty of fair representation complaint against his union after it declined to advance his discharge grievance to arbitration.

The applicant was terminated for allegedly consuming and possessing marijuana at work, based on an undercover investigator's report.

The union investigated the allegations, interviewed witnesses, and considered the applicant's bald denial, which lacked any exculpatory explanation due to pending criminal charges.

The union concluded the grievance had poor prospects of success and posed a risk of leading to mandatory drug testing.

The Board dismissed the complaint, finding the union's investigation was thorough and its decision not to arbitrate was reasonable and not arbitrary, discriminatory, or in bad faith.

The applicant union sought certification for a bargaining unit restricted to Adult Basic Education and Adult English as a Second Language (ABESL) instructors employed by the responding party.

The responding party argued the appropriate unit should include all Continuing Education Instructors.

The Board applied the Hospital for Sick Children test and concluded that a bargaining unit restricted to ABESL instructors was not appropriate due to concerns about undue fragmentation and classification-based bargaining.

The Board found that a unit including all continuing education instructors would be appropriate and directed the parties to meet with a Labour Relations Officer to complete the certification report.

The applicant union filed a complaint alleging that the employer improperly assigned occasional teacher work to members of another union.

The employer and the responding union argued that the dispute involved interpreting the Education Act and should be left to the Minister of Education.

The Board rejected this argument, holding that it has jurisdiction under section 93 of the Labour Relations Act to resolve work assignment disputes, even if the assignment might also violate another statute.

The Board directed the parties to file lists of tasks, witnesses, and evidence in preparation for a hearing.