Mark D. Contini

The applicant union sought judicial review of an Ontario Labour Relations Board decision dismissing its application for a related employer declaration under s. 1(4) of the Labour Relations Act.

The Board had found the statutory prerequisites were met but declined to exercise its discretion to grant the declaration, reasoning it would improperly expand the union's bargaining rights without any actual erosion of existing rights.

The Divisional Court dismissed the application, finding the Board's exercise of discretion was reasonable, intelligible, and entitled to deference.

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 sought judicial review of an Ontario Labour Relations Board decision certifying the respondent union as the bargaining agent for four construction workers.

The applicant challenged the Board's evidentiary ruling that prevented its site superintendent from testifying about his relationship with other on-site workers not subject to the certification application.

The Divisional Court dismissed the application, finding the Board's decision to exclude the evidence as irrelevant was reasonable, as the applicant had expressly confirmed it was not challenging the size of the bargaining unit.

The applicant union sought judicial review of an Ontario Labour Relations Board decision that allowed an employee to participate in a representation vote on a displacement application.

The applicant argued the employee should have been excluded under the April Waterproofing doctrine because he was not assigned to work by the incumbent union.

The Divisional Court dismissed the application, finding the Board reasonably interpreted 'in the bargaining unit' based on the work being done and reasonably applied its current, more nuanced approach to the April Waterproofing doctrine.

The applicant union sought judicial review of an arbitral award that dismissed a grievance regarding the calculation of retirement gratuities for employees working less than 12 months per year.

The arbitrator found the employer's method of dividing yearly earnings in half to determine the six-month cap was reasonable and consistent with the Municipal Act paradigm referenced in the collective agreement.

The Divisional Court applied the reasonableness standard of review and concluded that the arbitrator's interpretation fell within the range of acceptable outcomes.

The application for judicial review was dismissed.

The Cornwall Community Police Services Board sought judicial review of an arbitrator's decision that required a 12% payment in lieu of benefits to all part-time employees, including retirees, and awarded retroactive payments back to 2007 covering expired collective agreements.

The Divisional Court dismissed the application, finding that the arbitrator's interpretation of the collective agreement was reasonable.

The Court also held that the arbitrator's determination of his own jurisdiction to grant retroactive remedies under expired agreements was reviewable on a reasonableness standard and was reasonable based on the Police Services Act and arbitral jurisprudence.

The applicant union sought judicial review of an Ontario Labour Relations Board decision granting bargaining rights to a competing union.

The applicant argued that a voluntary recognition agreement between the employer and the competing union constituted unlawful employer support under s. 53 of the Labour Relations Act.

The Divisional Court dismissed the application, finding the Board's conclusion that the agreement was a bona fide settlement of an outstanding application, rather than unlawful support, was reasonable and entitled to deference.

The applicant union sought judicial review of an Ontario Labour Relations Board decision.

The Board found that the respondent employer breached the collective agreement by subcontracting work to a non-unionized contractor, but denied an award of damages because the union suffered no loss, as only a non-union contractor was capable of performing the specialized work.

The Divisional Court dismissed the application, holding that the Board's decision on remedy was owed deference and was not outside the range of reasonable outcomes.

The applicant union sought judicial review of an arbitration award dismissing a grievance for unjust termination and denial of benefits.

The grievor, who was off work on workers' compensation, claimed ongoing benefits from the predecessor employer after the entire business was sold to a successor employer.

The arbitrator held that the predecessor employer had no ongoing liability under the collective agreement except for crystallized entitlements.

The Divisional Court dismissed the application, finding the arbitrator's conclusion that the successor employer replaced the predecessor employer for ongoing benefits was reasonable and consistent with labour relations jurisprudence.

In an addendum to a previous decision allowing the appeal and restoring the Ontario Labour Relations Board's decision, the Court of Appeal clarified the timeline for an estoppel period.

Responding to a letter from the respondent's counsel, the court confirmed its intention that the new two-year estoppel period originally set by the OLRB would start again on the date of the court's decision.

The appellant unions appealed a Divisional Court decision that quashed an Ontario Labour Relations Board ruling.

The Board had admitted a photocopy of the 1958 Sarnia Working Agreement into evidence as a business record and ancient document, finding it created province-wide bargaining rights binding the respondent employer.

The Board also found the unions were estopped from enforcing the agreement for two years due to representations made in 2000.

The Divisional Court ruled the document inadmissible and substituted a permanent estoppel.

The Court of Appeal allowed the appeal, holding that the Divisional Court failed to show deference to the Board's evidentiary rulings and remedial discretion, restoring the Board's original decision.

The applicant Union sought judicial review of an arbitrator's decision dismissing a grievance concerning the discharge of a disabled worker.

The Union argued it was denied natural justice because the arbitrator refused its counsel access to the employer's plant to observe jobs, and refused to admit Physical Demands Analysis documents as exhibits.

The Divisional Court dismissed the application, finding the arbitrator's discretionary rulings were reasonable, caused no prejudice, and did not result in procedural unfairness.

The appellant, a plaintiff in a wrongful dismissal action, appealed a Superior Court decision that dismissed her action for delay under Rule 48.14.

The appeal judge had overturned a Master's decision allowing the action to proceed, reasoning that the appellant failed to meet her onus by not filing affidavit evidence at the status hearing.

The Court of Appeal allowed the appeal, holding that initial status hearings ordinarily proceed on oral submissions and affidavit evidence is not strictly required unless a full hearing is ordered.

The Court further found that the delay was sufficiently explained and partially attributable to the respondent's conduct, permitting the action to proceed.

The Greater Toronto Airports Authority sought judicial review of an arbitration award that found it had unjustly dismissed a long-term employee and awarded significant damages, including past and future economic loss, $50,000 for mental distress, and $50,000 in punitive damages.

The Divisional Court upheld the arbitrator's decision to award economic loss and mental distress damages in lieu of reinstatement, finding it reasonable given the employer's bad faith in the manner of dismissal.

However, the Court set aside the quantum of mental distress damages because it improperly included unsupported damages for physical pain and suffering.

The Court also set aside the punitive damages award due to a denial of natural justice and the arbitrator's failure to identify an independent actionable wrong or address proportionality.

The issues of quantum for mental distress and punitive damages were remitted to the arbitrator.

The applicants sought judicial review of two Ontario Labour Relations Board decisions which found that a 1965 Working Agreement did not confer bargaining rights on them.

Applying the reasonableness standard of review, the Divisional Court upheld the Board's interpretation that the agreement merely bound the employer to abide by the provisions of the collective agreements, rather than binding the employer to the collective agreements themselves.

The court also dismissed arguments regarding a denial of natural justice due to delay, finding no prejudice was demonstrated.

Both applications were dismissed.

The applicant hospital sought judicial review of two interest arbitration awards that ordered retroactive wage increases for employees who were no longer actively employed.

The hospital argued that retroactivity was not a matter in dispute between the parties and that the arbitration board exceeded its jurisdiction and denied procedural fairness by deciding the issue without giving the parties an opportunity to make submissions.

The Divisional Court held that the board's decision was unreasonable because it failed to explain why it was necessary to deal with retroactivity when the parties had agreed it was not in dispute.

The Court also found a denial of procedural fairness and set aside the portion of the awards dealing with retroactivity.

The Crown in an Occupational Health and Safety Act prosecution came into possession of a defence investigation report protected by solicitor-client and litigation privilege.

The justice of the peace stayed the charges, finding a breach of the defendants' Charter rights.

The summary appeal judge set aside the stay, holding that excluding the report from evidence was a sufficient remedy.

The Court of Appeal allowed the appeal and restored the stay of proceedings, holding that prejudice is presumed when the Crown obtains privileged defence documents, and the Crown failed to rebut this presumption.

The applicant union sought judicial review of an Ontario Labour Relations Board decision resolving a work jurisdiction dispute over stone masonry work on a construction project.

The Board had ordered the subcontractor to assign the work to the respondent union based on collective bargaining agreement obligations.

The Divisional Court applied the patent unreasonableness standard of review, finding that the Board's consideration of the employer's identity, local area practices, and the general contractor's non-party status was rational and supported by evidence.

The application for judicial review was dismissed.

The applicant union sought judicial review of an arbitrator's award upholding the discharge of an employee for sleeping on the job.

The employee was subject to a Last Chance Agreement that permitted immediate discharge for sleeping at work.

The union argued the arbitrator unreasonably disregarded medical evidence suggesting the employee suffered from sleep apnea and circadian rhythm disorder.

The Divisional Court dismissed the application, finding the arbitrator carefully considered the evidence and reasonably concluded the sleep apnea only became significant after termination.

The arbitrator's decision was not patently unreasonable.

The applicant ballet company sought a stay of an interim arbitral award that suspended the non-renewal of the respondent dancer's employment contract and ordered her reinstatement pending a final decision.

The applicant argued the arbitrator lacked jurisdiction to order reinstatement under the Labour Relations Act.

The court dismissed the motion for a stay, finding that while there was a serious question to be tried regarding jurisdiction, the applicant failed to establish irreparable harm.

The balance of convenience strongly favoured the respondent, as a further hiatus in dancing would likely end her career, whereas the applicant would not suffer a fatal blow if she were reinstated.