Robert W. Little

The appellant, Wal-Mart Canada Corporation, appealed its conviction under the Occupational Health and Safety Act for failing to keep a floor free of hazards or obstructions.

An employee tripped over an empty skid in an aisle while moving merchandise backwards with a manual skid jack, fell, and hit his head.

The appeal court upheld the trial judge's finding that the empty skid constituted a hazard or obstruction under section 11 of Regulation 851.

The court also upheld the finding that the appellant failed to establish the defence of due diligence on a balance of probabilities, noting the absence of safety sweep logs for the backroom area.

The appeal was dismissed.

The defendants, the Legislative Assembly of Ontario and the Office of the Ombudsman of Ontario, sought costs on a partial indemnity scale after successfully dismissing the plaintiff's action against the Assembly for lack of jurisdiction and striking out the plaintiff's statement of claim against the Ombudsman for disclosing no reasonable cause of action.

The court awarded the Legislative Assembly $49,983.67 and the Ombudsman $18,551.81, finding their initial claims for costs to be excessive but acknowledging the legal complexity and importance of the motions.

The plaintiff's financial circumstances were considered but not determinative in the costs award.

The plaintiff, a former Ombudsman of Ontario, commenced an action against the Office of the Ombudsman and the Legislative Assembly of Ontario, seeking declaratory relief and damages for wrongful dismissal and negligent misrepresentation.

The Office of the Ombudsman moved to strike the statement of claim, arguing it disclosed no reasonable cause of action as the Office is a statutory position, not a legal entity capable of an employment contract with the Ombudsman.

The Legislative Assembly moved to dismiss or stay the action for lack of jurisdiction, asserting parliamentary privilege over the appointment and management of parliamentary officers.

The court granted both motions, finding that the Office of the Ombudsman is not a separate legal entity capable of employing the Ombudsman, and that the Assembly's decisions regarding the appointment and non-reappointment of a parliamentary officer are protected by parliamentary privilege, thus falling outside the court's jurisdiction.

The Crown charged Wal-Mart Canada Corp. with failing to ensure that measures and procedures prescribed by regulation were carried out at a workplace, specifically that the floor be kept free of obstructions and hazards.

A maintenance worker tripped over an empty pallet left on the floor in the receiving area and fell, striking his head.

The worker died two weeks later, though the Crown conceded it could not prove causation.

The court found that the empty pallet constituted an obstruction and hazard under the applicable regulation.

While Wal-Mart had training programs, policies, and safety procedures in place, the court found the defendant failed to establish the due diligence defence on a balance of probabilities, primarily due to the absence of safety sweep logs for the receiving area and insufficient evidence of implementation of safety procedures in that specific location.

The defendant was found guilty.

The applicant filed a human rights application but failed to attend the scheduled hearing on the merits.

The Tribunal found that the applicant was aware of the hearing date but chose not to attend.

Given the resources expended by the respondent and the Tribunal, and the applicant's failure to provide evidence in support of his allegations, the Tribunal dismissed the application as abandoned.

The applicant filed a human rights application alleging age discrimination in employment, specifically regarding the denial of overtime opportunities.

The respondent requested that the application be deferred because a workplace grievance dealing with the same issue had been referred to arbitration.

The Tribunal found that deferral was appropriate to avoid adjudicative duplication, given the considerable factual overlap and the arbitrator's jurisdiction to enforce human rights obligations.

The application was deferred pending the conclusion of the grievance process.

The applicant filed a human rights application alleging discrimination on the basis of disability after being required to terminate her employment to receive long-term disability benefits.

Prior to the application, she commenced a wrongful dismissal action in the Superior Court of Justice that explicitly pleaded and relied upon the Human Rights Code.

The respondent requested that the application be barred under s. 34(11) of the Code.

The Tribunal found that the civil proceeding dealt with the same allegations and subject matter, and that the omission of a specific request for an order under s. 46.1 in the civil claim did not prevent the application of the s. 34(11) bar.

The application was dismissed for lack of jurisdiction.

The Ministry of Labour appealed the acquittal of an employer charged under the Occupational Health and Safety Act after a worker suffered a serious hand injury on a cold-rolling steel mill.

The employer argued it complied with the guarding requirement in section 25 of the Industrial Establishments Regulations by using a push bar and an operating control, and that the worker's deliberate failure to follow procedures caused the accident.

The Court of Appeal allowed the appeal, holding that the push bar and operating control did not constitute a guard or 'other device' under the Regulation.

The Court further held that employee misconduct is not a defence to the strict liability offence of failing to guard a machine, and the employer failed to establish a due diligence defence.

A conviction was entered.

Two applications for judicial review were brought regarding preliminary awards by a labour arbitrator.

Solidwear sought to review the arbitrator's decision denying it party standing as a potential related employer.

Valleycroft, a bankrupt employer, sought to review the arbitrator's decision refusing to allow it to argue that the union's grievance was untimely.

The Divisional Court dismissed a preliminary motion to quash Solidwear's application for delay.

The Court dismissed Solidwear's application, finding the arbitrator's decision on standing was not patently unreasonable.

However, the Court granted Valleycroft's application, holding that the arbitrator's refusal to hear arguments on the timeliness of the grievance was a denial of natural justice and procedural fairness.

The matter was remitted to a differently constituted board of arbitration.

The Ministry of Labour sought leave to appeal an acquittal of the respondent on a charge of failing to guard a machine under section 25 of the Regulations for Industrial Establishments.

The justice of the peace had acquitted the respondent, finding that workplace procedures and enhancements precluded the need for a physical guard.

The Court of Appeal granted leave to appeal, holding that whether workplace rules can substitute for a physical guard raises a question of law and that it is essential in the public interest to determine this issue.

The appellant employer appealed a trial judgment finding that the respondent employee was constructively dismissed and awarding her damages.

The respondent, a director, had refused to accept a corporate restructuring that required her to report to a newly appointed assistant vice-president rather than the senior vice-president.

The Divisional Court allowed the appeal, holding that the trial judge erred in construing the altered reporting obligation as a transfer of responsibility.

Applying an objective test, the court found that the structural change did not constitute a fundamental breach of the employment contract, and therefore, there was no constructive dismissal.

The Crown appealed, with leave, from a summary conviction appeal decision that had reduced fines imposed on a corporate respondent convicted of two surviving workplace safety offences arising from an incident that caused an employee's death.

The Court of Appeal held that the trial judge's original sentence disclosed no error in principle and appropriately emphasized deterrence.

It found that the summary conviction appeal judge erred by diluting the importance of deterrence when treating it as only one of many sentencing factors.

The appeal was allowed and the original fines were restored.

The complainant, an observant Jewish employee, alleged discrimination on the basis of creed because she was required to use vacation time, lieu time, or unpaid leave to observe Jewish holy days.

The employer rejected her proposal to make up the time by working overtime, arguing that not all employees had overtime available.

The Board of Inquiry found that while the employer's holiday schedule was secular and not directly discriminatory, it had an adverse effect on the complainant.

The Board held that the employer failed in its duty to accommodate, as it did not establish that the proposed accommodation would cause undue hardship.

However, no damages were awarded because the complainant suffered no monetary loss and bad faith was not established.

The applicant union applied for a direction that a first collective agreement be settled by arbitration.

During the hearing, the Board ruled that evidence of discussions with a mediator and a Board Officer was inadmissible due to statutory confidentiality and settlement privilege.

The union subsequently asserted that a settlement had been reached, causing the respondent's counsel to become a potential witness.

The respondent requested an adjournment to retain new counsel.

The Board granted the adjournment, holding that the 30-day time limit in section 40a(2) of the Labour Relations Act is directory rather than mandatory, and that natural justice required the adjournment.

A dissenting Board member argued the time limits should be considered mandatory.

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.