Richard J. Charney

The applicant union sought judicial review of a labour arbitration award that dismissed its grievance regarding the calculation of partial-day absences for relief letter carriers.

The arbitrator had found that the collective agreement did not require rounding up daily totals of partial absences and had considered the union's history of withdrawing similar grievances.

The Divisional Court applied the reasonableness standard of review and found that the arbitrator's interpretation of the collective agreement and use of extrinsic evidence were justified and internally coherent.

The application for judicial review was dismissed.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing its unfair labour practice complaint without a hearing.

The complaint alleged that the respondents improperly applied a local collective agreement over a provincial agreement in the construction industry.

The Divisional Court held that the application was not premature despite the applicant's failure to seek reconsideration from the Board.

However, the Court dismissed the application on the merits, finding the Board's decision reasonable.

The Board had reasonably concluded that the two collective agreements could co-exist, that inquiring into the complaint served no labour relations purpose since the affected employer did not participate, and that the declaratory relief sought was of limited practical utility.

The applicant employer sought judicial review of an arbitrator's decision regarding the calculation of pay for personal leave days taken by a locomotive engineer under the Canada Labour Code.

The arbitrator found that because the collective agreement did not specifically provide a method for calculating personal leave pay, the default calculation under s. 17(a) of the Canada Labour Standards Regulations applied, rather than the 'basic day' rate argued by the employer.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the legislation and the collective agreement was reasonable and consistent with the purpose of ensuring employees do not suffer a wage loss when taking personal leave.

This is an appeal from a Divisional Court decision that quashed an Ontario Labour Relations Board (OLRB) declaration.

The OLRB had declared Enercare Home & Commercial Services Limited Partnership, Ganeh Energy Services Ltd., and Beaver Energy Services Ltd. to be related employers under section 1(4) of the Labour Relations Act, 1995, but not Perras Mechanical Services Ltd. The Divisional Court found the OLRB's decision unreasonable for failing to consider bargaining history and collective agreements.

The Court of Appeal allowed the appeal, finding that the Divisional Court misapplied the reasonableness standard of review as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, and restored the OLRB's original decision.

The applicant brought a motion under section 21(5) of the Courts of Justice Act to set aside an order of a single judge of the Divisional Court.

The motion judge had dismissed the applicant's request to file four affidavits in support of its application for judicial review of a labour arbitration decision.

The Divisional Court dismissed the motion, finding no palpable and overriding errors of fact or errors of law.

The court agreed that the proposed affidavits, which detailed oral submissions made before the arbitrator, were an impermissible attempt to supplement the record and did not fall within the narrow exceptions for admitting affidavit evidence on judicial review.

Canada Post Corporation appealed an arbitrator's decision that reinstated Christopher Seivright, a temporary postal worker, after his dismissal for failing to demonstrate reasonable availability in accepting work assignments.

The arbitrator rejected Canada Post's use of a peer average acceptance rate (37.8% versus 49.9% peer average) as the sole basis for termination, finding it arbitrary and unreasonable.

The arbitrator considered contextual factors including the 24/7 operation of the York Distribution Centre, high parcel volume, the grievor's seniority, and the actual number of shifts worked (57 shifts, placing him in the top 25-30% of temporary employees).

The Divisional Court upheld the arbitrator's decision as reasonable despite departing from prior arbitral jurisprudence on certain points.

The Court of Appeal dismissed the appeal, finding no binding arbitral precedent for mechanical application of acceptance rate standards and confirming that reasonable availability must be assessed on a case-by-case basis considering relevant workplace circumstances.

The applicants sought judicial review of a decision of the Ontario Labour Relations Board on a Ministerial reference, arguing they were denied procedural fairness because the Minister's question was inaccurately conveyed to them.

The Divisional Court dismissed the application, holding that the Board's decision on a Ministerial reference is an advisory opinion that does not determine legal rights and is therefore not reviewable on procedural fairness grounds.

Furthermore, the court found that the procedural defect did not result in a substantial wrong or miscarriage of justice, as the applicants had ample opportunity to address the core issues and the outcome would not have been different.

Canada Post Corporation applied for judicial review of an arbitration award that reinstated a temporary employee dismissed for failing to demonstrate reasonable availability.

The arbitrator found the dismissal unjustified, introducing a requirement for corporate prejudice.

The Divisional Court held that while the arbitrator failed to follow established arbitral jurisprudence and impermissibly amended the collective agreement by requiring corporate prejudice, his ultimate conclusion that the dismissal was unreasonable remained defensible on the facts.

The application for judicial review was dismissed, with one judge dissenting.

The applicant union sought judicial review of an arbitration award that dismissed a policy grievance concerning the employer's amendment to its photo identification policy.

The amendment discontinued the practice of allowing non-management employees to bring an occasional visitor on transit vehicles without paying a fare.

The Divisional Court held that the arbitrator's interpretation of the collective agreement was reasonable, as the plain wording did not require consideration of past practice.

The Court also found that the arbitrator reasonably concluded the employer's past practice did not give rise to an estoppel, as there was no representation by the employer that the practice would continue.

The application for judicial review was dismissed.

The union and the employers' association failed to reach a new collective agreement for the residential construction sector.

An arbitrator was appointed under the Labour Relations Act, 1995.

The employers' association argued the arbitrator's jurisdiction was limited to the Greater Toronto Area (GTA), while the union argued for a province-wide award.

The arbitrator determined he had jurisdiction to make a province-wide award to avoid fracturing the bargaining unit.

The Divisional Court quashed the award for areas outside the GTA.

On appeal, the Court of Appeal held that the standard of review for the arbitrator's jurisdictional decision was reasonableness.

The Court found the arbitrator's decision was reasonable and restored the province-wide award.

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 applicant sought judicial review of an interest arbitration award that imposed a province-wide collective agreement.

The Arbitrator was appointed under the Labour Relations Act to resolve a dispute in the residential construction sector.

The applicant argued the Arbitrator's jurisdiction was statutorily limited to the Greater Toronto Area (GTA).

The Divisional Court agreed, finding that the legislation expressly restricted the Arbitrator's authority to the GTA and that he could not use a regulation to expand his jurisdiction and interfere with the parties' right to strike or lockout outside the GTA.

The non-GTA portion of the award was quashed.

The applicant sought judicial review of an arbitration award that declared pre-access alcohol and drug testing, implemented in response to Suncor's site access requirements, violated the collective agreement.

The Divisional Court applied the reasonableness standard of review and upheld the arbitrator's decision, which relied on the Supreme Court of Canada's framework in Irving Pulp & Paper.

The court found the arbitrator reasonably concluded there was no evidence of a substance abuse problem at the Sarnia worksite to justify the privacy intrusion of pre-access testing.

The application for judicial review was dismissed.

The applicant union sought judicial review of an interest arbitration award, arguing the arbitrator denied procedural fairness by failing to disclose a dispute over the cost of a step progression freeze, making a finding without evidence, and refusing to order production of certain financial source documents.

The Divisional Court dismissed the application, finding that the arbitrator's procedures and disclosure rulings were reasonable given the flexible and informal nature of interest arbitration.

The court also found there was sufficient evidence in the parties' briefs to support the arbitrator's findings on the cost of the step progression freeze.

A proposed intervenor sought leave to participate extensively in a constitutional application challenging the Restoring Mail Delivery for Canadians Act, legislation enacted to end a postal workers’ strike.

The proposed intervenor requested rights to adduce evidence, cross‑examine witnesses, and make full submissions similar to the parties.

The court applied Rule 13.02 of the Rules of Civil Procedure and the governing intervention principles, including whether the intervenor would make a useful contribution without causing injustice to the existing parties.

The court held that the proposed evidence was largely argumentative and duplicative of arguments available to existing parties, particularly Canada Post and the Attorney General.

Finding the intervention would not assist the court and could expand the record unnecessarily, the motion was dismissed.

The applicant union sought judicial review of an arbitration award that held the union was estopped from proceeding with a grievance regarding the contracting out of a position.

The arbitrator had found that the union's conduct led the company to rely on a settlement to its detriment.

The Divisional Court found the arbitrator's findings on estoppel were inconsistent with his earlier factual findings that the company's representative had merely made an assumption about the union's intentions.

The court concluded the arbitrator's decision was unreasonable, quashed the award, and remitted the grievance to a different arbitrator.

The appellant construction trade unions challenged the constitutionality of s. 127.2 of the Labour Relations Act, 1995, which allows a 'non-construction employer' to terminate collective agreements and bargaining rights in the construction industry.

The Ontario Labour Relations Board found the provision violated s. 2(d) of the Charter.

The Divisional Court reversed this decision.

On appeal, the Court of Appeal upheld the Divisional Court's ruling, finding that s. 127.2 does not substantially interfere with the process of collective bargaining because employees of non-construction employers can still organize under the general provisions of the Act.

The appeal was dismissed.

The applicant union sought judicial review of an arbitration award that denied its grievance regarding the interpretation of a contracting out provision in a collective agreement.

The union argued the arbitrator failed to answer all questions or provide sufficient reasons.

The Divisional Court dismissed the application, finding the arbitrator's decision was reasonable, consistent with his findings of fact, and sufficiently complete to allow for proper analysis.

The appellant casino appealed a decision of the Human Rights Tribunal of Ontario finding it discriminated against the respondent on the basis of sex in a hiring decision for a washroom attendant position.

The Divisional Court upheld the tribunal's finding of prima facie discrimination, agreeing that the Meiorin analysis applied rather than the Law analysis.

The court also upheld the finding that the casino failed to establish a bona fide occupational requirement.

However, the court allowed the appeal in part, finding the tribunal breached the duty of fairness by failing to allow the casino to present evidence and submissions on the appropriate remedy.

The matter was remitted to the tribunal for a rehearing on remedy only.

The appellant casino appealed a decision of the Human Rights Tribunal of Ontario finding it discriminated against the respondent on the basis of sex in a hiring decision for a washroom attendant position.

The Divisional Court upheld the tribunal's finding of prima facie discrimination and its conclusion that the casino failed to establish a bona fide occupational requirement, as it did not prove it canvassed alternatives to its discriminatory practice.

However, the court found the tribunal breached natural justice by failing to allow the casino to present evidence and submissions on the appropriate remedy.

The appeal was allowed in part, and the matter was remitted to a different tribunal member for a rehearing solely on the issue of remedy.