Nadine Blum

In a grievance arbitration concerning a job posting for a Senior Economist position, the parties engaged in settlement discussions but did not resolve the grievance.

The arbitrator issued an interim order requiring all parties, including the grievor and the incumbent, to keep all information relating to the grievance, including the Association's book of documents, strictly confidential and to use it only for the proceeding before the Board.

The Association filed a grievance alleging the grievor was subjected to anti-Black racism, harassment, and discrimination.

The Employer brought a preliminary motion to strike numerous paragraphs of the Union's particulars on the basis that they were untimely or precluded by the 'three-year rule'.

The arbitrator found that the Employer had not waived its right to object to timeliness and declined to exercise discretion under s. 48(16) of the Labour Relations Act to extend the time limits, noting the lack of explanation for the delay.

Applying the three-year rule, the arbitrator struck most of the historical particulars, finding they were not probative of the timely allegations and could not serve to demonstrate a violation of the collective agreement.

The employer brought a motion for pre-hearing disclosure of the grievor's complete medical file in a dispute regarding the duty to accommodate.

The employer argued that by seeking accommodation, the grievor put her health in issue, entitling the employer to full medical disclosure.

The Association opposed the request, arguing the employer already had sufficient medical information detailing the grievor's restrictions and that the request was a fishing expedition.

The Arbitrator applied the West Park Hospital factors and dismissed the motion, finding no nexus between the request for the entire medical file and the issue in dispute, as the employer had already accepted the grievor's medical restrictions and did not allege bad faith.

The Association filed a grievance alleging the Employer violated the collective agreement by denying the grievor's request for an alternative work arrangement to work from home four days a week.

The manager denied the request based on Secretary of Cabinet memos requiring employees to be in the office three days a week, interpreting the memos as prohibiting work from home arrangements of more than two days absent exceptional circumstances.

The Grievance Settlement Board found the dispute was not moot despite the grievor later receiving a three-day arrangement.

On the merits, the Board held the manager fettered her discretion and narrowed the scope of the collective agreement by applying a blanket rule rather than considering the individual request and operational viability in good faith.

The grievance was allowed and a violation of the collective agreement was declared.

The parties agreed to remit the issue of whether the complainant should have been converted into a Youth Justice Trainer position effective July 31, 2022, for an expedited determination without reasons.

The arbitrator directed the employer to place the complainant into the position on a permanent basis retroactive to that date, with all commensurate compensation and benefits, and deemed the probationary period completed.

The applicant union sought judicial review of an arbitrator's decision regarding a workplace investigation into an incident between a Black grievor and a white colleague.

While the arbitrator found the investigation procedurally flawed, he dismissed the claim that it was tainted by anti-Black racism or unconscious bias.

The Divisional Court granted the application, finding that the proper articulation of the test for prima facie discrimination is a question of central importance subject to a correctness standard of review.

The court held that the arbitrator misapprehended the test by requiring racism to be the 'dominant possibility' and by misapplying the shifting evidential burdens.

The discrimination claim was remitted to the arbitrator.

In the context of a grievance arbitration, the Employer sought production of treatment records from a third-party wellness clinic, XR Wellness.

A representative of the clinic indicated they possessed the documents but required an order from the Grievance Settlement Board to produce them.

The Arbitrator ordered the clinic to produce all documentation regarding treatments provided to the grievor and another individual between July 2015 and February 2019 to counsel for the Employer.

The Association filed a grievance on behalf of an employee who was screened out of a job competition.

The Arbitrator found the Employer violated the Collective Agreement by considering factors outside the selection criteria during the screening process, but declined to order a rerun of the competition.

During the arbitration, it was discovered that the Employer's hiring manager had created a false score sheet after the fact and presented it as having been created contemporaneously.

The Arbitrator found this conduct violated the Collective Agreement's disclosure requirements and the duty of honest performance, awarding the grievor $2,000 in general damages and $5,000 in punitive damages.

The Association grieved the Employer's decision to declare a long-service employee to have abandoned her position after she failed to provide updated medical information to substantiate her ongoing absence.

The arbitrator found that, given the unique facts including the nature of the disability and the medical information already provided, the Employer should have placed the employee on an approved unpaid leave of absence rather than declaring job abandonment.

The grievance was allowed, and the employee was reinstated to an unpaid leave of absence until her intended retirement date.

The Association sought production of Excel spreadsheets and related emails regarding the screening of a job competition.

The Arbitrator ordered the Employer to produce the requested documents in their original format, subject to an implied undertaking that they only be used for the present grievance and be destroyed at the conclusion of the matter.

The grievor, a Black woman, alleged that a White co-worker deliberately shoved her in a narrow hallway.

The employer appointed an internal investigator who concluded the contact was accidental and that the grievor had exaggerated her claim to extract a financial settlement.

The arbitrator found insufficient evidence to determine whether the contact was an assault or an accident.

However, the arbitrator found the employer's investigation was deeply flawed, unfair, and failed to meet the required standards under the Occupational Health and Safety Act and the collective agreement.

While the union argued the investigator's conclusions were tainted by implicit anti-Black bias, the arbitrator found insufficient evidence to prove unconscious bias on a balance of probabilities.

The arbitrator ordered the investigator's report removed from the employees' files and remitted the matter to the parties to determine monetary damages for the unfair investigation.

The plaintiff brought a proposed class action against the defendant employer for unpaid overtime, initially claiming $100 million.

The parties reached a pre-certification settlement of $7 million, which included a new time-tracking system.

The court certified the action for settlement purposes and approved the settlement, finding it fair and reasonable given the adjusted actual loss, comparable settlements, and the significant litigation risk posed by the COVID-19 pandemic's impact on the travel industry.

The court also approved a $10,000 honorarium for the representative plaintiff due to retaliatory employment consequences, and approved class counsel's 25% contingency fee.

The representative plaintiff brought a motion for approval of a $17 million settlement, a distribution protocol, and class counsel fees in a certified class action regarding prepaid payment cards.

The action alleged the defendants breached gift card regulations under the Consumer Protection Act by seizing expired balances and charging unauthorized fees.

After a summary judgment was granted in part and appealed by both parties, a settlement was reached.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class.

The court also approved the distribution protocol and class counsel's fee request of 30% of the settlement amount.

In a grievance arbitration, the employer sought to lead its evidence in chief by way of a 'will say' statement.

The union objected.

The arbitrator noted that while the Grievance Settlement Board has the authority to allow 'will say' statements, the practice is to encourage them only with the agreement of the parties.

Given the complicated and heavily disputed facts of the case, the arbitrator ruled it was not appropriate to permit the employer to use a 'will say' statement for its main witness against the union's wishes.

The Association requested the production of all documentation in a Workplace Discrimination and Harassment Prevention (WDHP) file regarding an investigation into the Complainant.

The Association alleged the investigation was initiated as a reprisal for the Complainant enforcing his collective agreement rights.

The Employer resisted production, arguing it was premature and would prejudice the discipline process.

The Arbitrator ordered the production of the documents, finding them arguably relevant to the Association's reprisal allegations.

The Grievance Settlement Board ordered the Employer's WSIB Advisor to disclose documents relating to the grievor's WSIB claim to counsel for both the Employer and the Association.

During a grievance arbitration regarding a workplace incident between two employees represented by different unions, the employer and the grieving union agreed to proceed with an expert witness's testimony via videoconference due to the COVID-19 pandemic.

The intervener union objected.

The arbitrator held that there is jurisdiction to compel a videoconference hearing and that, balancing the interests, it was appropriate to proceed by video for the short testimony of the expert witness, subject to adjournment if technical issues arise.

The union sought production of a job application submitted by another employee who had been temporarily appointed to the Dispute Resolution Officer position that the grievor sought to bump into.

The union argued the document was relevant to show the employer acted arbitrarily in finding the grievor unqualified, as it believed the other employee lacked the same qualifications.

The arbitrator denied the request for production, finding that the application alone would not establish the other employee's qualifications without evidence of the entire hiring process.

The arbitrator concluded that ordering production would lead to a collateral inquiry into the other employee's qualifications, which would have minimal probative value for the grievor's case.

The parties agreed to a Consent Order governing the disclosure and use of medical documentation in the proceeding.

The Arbitrator issued the order, which included conditions restricting access to the documents, requiring their secure destruction at the close of the proceeding, and reserving the right to challenge the medical evidence.

The Arbitrator also noted that the parties would discuss how medical evidence would be described in the final award to protect privacy.

The third party, a Dispute Resolution Officer, brought a motion arguing that she should not be considered the least senior employee at risk of being bumped by the complainant.

She argued that a more recently hired employee should be displaced instead, and that the current seniority list should be used rather than the list from when the bumping rights crystallized.

The Arbitrator dismissed the motion, holding that arbitral jurisprudence and the collective agreement require bumping rights to be assessed based on the circumstances frozen at the time the alleged violation crystallized, not on a moving seniority list.