Robert J. Atkinson

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent employee by transferring him from Vice President of Operations to Purchasing Manager.

The trial judge awarded 24 months' notice and found the employee was not required to mitigate by accepting the new role.

The Court of Appeal upheld the constructive dismissal finding and the notice period.

On mitigation, the Court held that while the principle of efficient breach might apply, the employer failed to trigger the mitigation duty because it did not offer the employee a clear opportunity to work out the notice period after he claimed constructive dismissal.

The appeal was dismissed.

A senior employee with 38 years of service was reassigned from Vice President of Operations to Purchasing Manager following an internal restructuring.

The employee refused the demotion and alleged constructive dismissal.

The court held that the unilateral reassignment involved a significant loss of status, authority, and prestige, amounting to a fundamental breach of the employment contract despite the preservation of salary.

Applying the Bardal factors, the court awarded 24 months’ reasonable notice and found the employee reasonably declined to mitigate by returning to a humiliating subordinate role.

Claims for moral damages were dismissed because the employer’s conduct was not in bad faith.

The applicant filed a human rights application alleging discrimination and reprisal on the basis of family status after being terminated following his return from parental leave.

The respondents brought preliminary requests to dismiss the application for delay, for summary hearing, and to remove one respondent for lack of an employment relationship.

The applicant sought to amend his application to add grounds of marital status and association with a person identified by a Code-ground.

The Tribunal denied the respondents' requests to dismiss and remove the party, allowed the applicant to add the ground of marital status, but denied the addition of the association ground.

A preliminary hearing was ordered to determine if the application should be dismissed under section 45.1 of the Code due to a prior Employment Standards Act decision.

The applicant filed a human rights application alleging discrimination and reprisal by her former employer.

The respondent requested summary dismissal on the basis that the applicant had previously signed a full and final release.

The applicant argued she signed the release under duress and while of unsound mind, but failed to provide medical evidence to support this claim.

The Tribunal dismissed the pre-release allegations as an abuse of process.

The Tribunal also dismissed the post-release reprisal allegations, finding them to be merely speculative with no reasonable prospect of success.

The appellant union appealed a Divisional Court decision that affirmed an arbitrator's award regarding the interpretation of s. 56(2) of the Employment Standards Act.

The Court of Appeal found that while the appellant's interpretation was reasonable, the arbitrator's interpretation was also within a range of reasonable outcomes.

The appeal was dismissed with costs fixed at $5,000.

The applicant union sought judicial review of an arbitration award concerning the interpretation of 'temporary lay-off' under s. 56(2) of the Employment Standards Act, 2000.

The union argued that the employer's lay-off of over 200 employees became a termination after 13 weeks, triggering mass termination notice requirements.

The arbitrator, applying the Court of Appeal's decision in London Machinery, held that s. 56(2)(c) applied as a stand-alone provision because the collective agreement provided recall rights, meaning the lay-off could extend up to 35 weeks without becoming a termination.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the arbitrator's interpretation was defensible and supported by binding precedent.

The applicant union sought judicial review of an arbitrator's decision dismissing a policy grievance regarding vacation pay.

The union argued that employees with 1 to 3 years of seniority who worked overtime received less than the 4% minimum vacation pay required by the Employment Standards Act.

The arbitrator found that the collective agreement's vacation package, which included guaranteed paid days regardless of actual earnings and increased entitlements with seniority, provided a greater benefit overall under s. 5(2) of the Act.

The Divisional Court held that the arbitrator's decision was reasonable, noting the value of the guaranteed paid days, and dismissed the application.

The applicant, a college professor, filed a human rights complaint alleging discrimination on the basis of handicap.

He also filed 14 grievances covering the same allegations under his collective agreement.

The Ontario Human Rights Commission exercised its discretion under s. 34(1)(a) of the Human Rights Code not to deal with the complaint, finding it could be more appropriately dealt with through the grievance and arbitration procedure.

The applicant sought judicial review, arguing the Commission's decision was patently unreasonable because it failed to investigate the efficacy of the grievance procedure.

The Divisional Court dismissed the application, holding that the Commission is not required to conduct a full-scale investigation into the efficacy of the grievance procedure and its decision was not patently unreasonable given the overlap between the grievances and the complaint.

Following a declaration of a sale of a business and an intermingling of employees, a representation vote was held between two competing union locals.

Local 774 sought to set aside the vote results, alleging unfair labour practices by Local 3264 and the employer.

The Board ruled that the appropriate bargaining unit had already been finally determined by prior agreement and decision.

The Board also dismissed Local 774's motion, finding no prima facie case that the vote did not represent the true wishes of the employees, and confirmed Local 3264 as the bargaining agent.

A hearing was scheduled for remaining issues.

The employer and an employee filed unfair labour practice complaints alleging that the Staff Association breached a settlement agreement and engaged in intimidation and coercion.

Prior to a representation vote to determine its trade union status, the Staff Association passed a resolution that it would dissolve if the vote failed.

The applicants argued this deprived employees of the option to maintain a non-union employee association.

The Board dismissed the complaints, finding no breach of the settlement's explicit terms and no intimidation or coercion under section 76 of the Act, as the right to a non-union association is not protected by the Act.

The Board also declined to order a new representation vote.

The applicant City moved to strike out the relief sought by the respondent in her response to the City's application to revoke a Review Officer's order.

The respondent sought to have her positions evaluated at a higher band than ordered by the Review Officer, along with additional compensation.

The Pay Equity Hearings Tribunal held that a response is not the appropriate pleading to seek independent relief or a variation of the Review Officer's order.

The Tribunal ordered the respondent to file a separate application if she wished to pursue the additional relief, which would then be consolidated with the City's application.

The grievor, a truck driver with two weeks of service at the site, was discharged after refusing to repair a damaged truck tire and inviting his foreman to fire him.

The union grieved the discharge, arguing the refusal was motivated by a health condition and that discharge was an excessive penalty.

The Board found the health concern was an ex-post-facto rationalization and that the true reason for the refusal was the grievor's belief that the work was unpleasant and should have been assigned to a junior employee.

The Board declined to substitute a lesser penalty, noting that progressive discipline is attenuated in the construction industry, particularly for short-term employees.

The grievance was dismissed.

The applicant union filed a construction industry grievance alleging the respondents failed to hold a mark-up meeting regarding scaffolding erection for elevator construction.

An intervening union requested the Board defer the grievance, arguing it was essentially a jurisdictional dispute over work assignment.

The Board dismissed the request to defer, directing that the grievance proceed to a hearing on whether the collective agreement was breached.

The Board held that while a jurisdictional dispute was at the root of the damages claim, it would be premature to embark on a jurisdictional dispute proceeding before a breach of the collective agreement was established.

The complainant alleged he was discharged contrary to section 24 of the Occupational Health and Safety Act for raising safety concerns and participating in a health and safety committee.

The employer maintained the discharge was solely because the complainant deliberately or recklessly struck a fellow employee's hand with a hammer, causing serious injury.

The Board found the employer's decision was not tainted by anti-safety animus and was based entirely on the complainant's violent conduct and prior disciplinary record.

The Board declined to substitute a lesser penalty and dismissed the complaint.

The complainant alleged that his union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to pursue grievances in 1978 and 1984, and by refusing to provide him with copies of those grievances.

The Board dismissed the complaint regarding the 1978 grievance due to extreme delay.

Regarding the 1984 return-to-work grievance, the Board found the union's decision not to proceed to arbitration was reasonable and not arbitrary, discriminatory, or in bad faith.

While the union's refusal to provide a copy of the grievance was arbitrary, the Board declined to grant a remedy as it caused no compensable loss and the union had since changed its policy.

The union grieved that the employer contravened the collective agreement by failing to pay an employee for the three days it took him to obtain a medical certificate confirming his fitness to work.

The employee had disclosed a shoulder problem during a pre-employment assessment.

The Board held that the employer had reasonable grounds to require medical evidence of fitness and was not obligated to compensate the employee during the interim period.

The grievance was dismissed, save for four hours' pay agreed to by the parties for the time spent on the employer's premises.

The applicant employee applied to terminate the respondent union's bargaining rights.

The Board examined the voluntariness of the petition signed by employees in support of the application.

The Board found that the applicant had misrepresented to employees that he had a confidential source indicating that previous benefits would be reinstated if the union was decertified, leading employees to perceive a link with management.

Consequently, the Board concluded the petition was not voluntary and dismissed the application.

A dissenting board member would have ordered a representation vote.

Following a finding that the respondent employer committed unfair labour practices by unlawfully reassigning an employee to a lower-paying position, the parties disputed the quantum of compensation.

The employer argued the employee failed to mitigate his damages by electing to take a layoff rather than accepting the lower-paying reassignment.

The Board held that given the employer's pattern of unlawful discrimination and the employee's reasonable expectation of quickly finding alternate employment at full pay, his decision to take a layoff was a reasonable attempt to mitigate his losses.

The employee was awarded full compensation for the period of his unemployment.