Michael Andrew Hines

The Ontario Human Rights Commission brought a motion to amend a human rights complaint to add three new allegations of harassment in employment and the ground of reprisal.

The respondent, Dofasco Inc., opposed the motion, arguing that the Commission's failure to investigate or conciliate these allegations prior to referral deprived it of statutory protections and that the late notice caused prejudice amounting to an abuse of process.

The Board of Inquiry granted the motion, holding that it has jurisdiction to hear a matter de novo and amend complaints, provided natural justice is respected.

The Board found that Dofasco failed to demonstrate actual prejudice of such magnitude as to impact the fairness of the hearing, noting that Dofasco would have ample time to prepare its defence before the hearing on the merits commenced.

The Ontario Human Rights Commission brought a motion to amend a human rights complaint to add three new allegations of harassment and the ground of reprisal.

The respondent, Dofasco Inc., opposed the motion, arguing that the late notice of the new allegations caused prejudice amounting to an abuse of process and a denial of natural justice.

The Board of Inquiry granted the motion, finding that the Board has the jurisdiction to amend a complaint and that the respondent failed to demonstrate actual prejudice of such magnitude as to impact the fairness of the hearing.

The employer applied for a declaration of an unlawful strike and a direction prohibiting picketing at its Timmins facility by employees from its Chapleau facility.

The parties agreed to adjourn the matter on consent terms, including an undertaking by the union and individual respondents not to picket any Domtar mill in Ontario (except Chapleau) pending the hearing and decision.

The Board granted the adjournment on the agreed terms.

Dofasco brought a motion for the production of the complainant's medical files, WSIB file, CPP file, and income tax returns in a human rights proceeding.

The Commission opposed the motion, arguing it was overly broad and a fishing expedition.

The adjudicator granted the motion in part, finding that the documents were arguably relevant to Dofasco's accommodation defence under section 17 of the Code and to the quantum of damages.

The complainant was ordered to provide consents for the release of the requested files and to produce edited income tax returns.

The applicant police association applied under section 116 of the Police Services Act to determine whether seven individuals in five positions (Licencing Enforcement Officer, Licencing Clerk, Board Clerk, Confidential Board Secretary, and Board Manager) were members of the police force.

The Commission held that the board's power to contract under section 30(1) allows it to directly employ individuals for clerical, secretarial, and administrative functions relating to its governance duties.

Therefore, the Board Clerk and Confidential Secretary are not members of the police force.

However, by-law enforcement functions must be performed by members of the police force under the operational direction of the chief of police.

Thus, the Licencing Enforcement Officers and Licencing Clerk must be members of the police force, and the Board Manager must also be a member unless the by-law enforcement responsibilities are divested.

Following the dismissal of a human rights complaint alleging discrimination in employment on the basis of handicap, the respondents sought costs against the Ontario Human Rights Commission under s. 41(4) of the Human Rights Code.

The respondents argued that the complaint was vexatious and that the Commission acted irresponsibly in pursuing it given the clear superiority of the successful candidate's qualifications.

The Board of Inquiry dismissed the application for costs, finding that while the Commission's investigation may have had technical shortcomings, the complaint was pursued in good faith and was not vexatious.

The respondents brought a preliminary motion to stay the human rights complaint on the grounds of abuse of process, and sought disclosure of various Commission documents relevant to that motion.

The Board of Inquiry held that it had jurisdiction to stay or dismiss proceedings for abuse of process.

Applying the test of arguable relevance, the Board ordered the Commission to disclose specific documents, including instructions regarding the winding down of a Special Task Force, the investigation file of a related complaint, and certain employment details of Commission staff involved in the investigation.

The Board declined to order the issuance of summonses duces tecum to prove the authenticity of documents from the Commission's investigation file.

Several firefighters filed complaints alleging that their mandatory retirement at age 60 by the municipalities of St. Catharines, Waterloo, and Windsor constituted age discrimination under the Ontario Human Rights Code.

Complaints were also filed against their respective unions for complicity in the discriminatory policies.

The respondent municipalities and unions argued that being under age 60 is a bona fide occupational qualification (BFOQ) for firefighters.

The Board of Inquiry applied the Supreme Court of Canada's test from Etobicoke, requiring the respondents to prove the policy was imposed in good faith and was reasonably necessary for safe and efficient job performance.

Based on extensive medical and physiological evidence, the Board found that all or almost all individuals over 60 lack the necessary aerobic capacity for active firefighting, and that there is a significant, untestable risk of coronary artery disease.

Concluding that individualized testing is impractical and that age 60 is a valid proxy for safety-related job qualifications, the Board upheld the mandatory retirement policies as a BFOQ and dismissed all complaints against the employers and unions.

The applicant union applied for certification.

A high percentage of employees signed union cards, but a similarly high percentage subsequently signed a petition opposing certification.

The Board heard evidence regarding the circumstances of the petition's circulation to determine if it represented a voluntary change of mind.

Despite some management inquiries, the Board found the change of mind was spontaneous and not initiated by management.

The Board exercised its discretion under section 7(2) of the Act to order a representation vote.

The Ontario Labour Relations Board considered applications arising from the franchising of former Dominion stores to Mr. Grocer franchisees.

The union sought a related employer declaration under s. 1(4) of the Labour Relations Act, arguing that Dominion, its subsidiary Willett Foods, and the franchisee Penmarkay Foods were under common control and direction.

Penmarkay sought to terminate the union's bargaining rights under s. 63(5), claiming a substantial change in the business.

The Board dismissed the s. 63(5) application, finding no fundamental change in the work performed.

The Board granted the s. 1(4) declaration, finding that Willett exercised real economic control over Penmarkay through the franchise agreement, which dictated margins, rent, and other costs, effectively controlling labour relations.

The declaration preserved the consolidated bargaining structure.

The Windsor Grain Processor's Union filed a complaint alleging that the employer committed unfair labour practices by interfering in a proposed merger with the U.A.W. and by penalizing the union president and other employees.

The union president was suspended following a physical altercation in the locker room, and the employer posted a notice regarding the merger vote.

The Board found that the employer's actions were not motivated by anti-union animus and that the notice was protected by the free speech proviso.

The complaint was dismissed.

The applicant union referred two grievances to the Ontario Labour Relations Board under section 124 of the Labour Relations Act regarding the discharge and lay-off of the grievor.

The respondent employer raised a preliminary objection, arguing that the grievances had been settled orally prior to the hearing.

The evidence showed that the union and employer had reached an oral agreement on all substantive terms, which the grievor initially accepted but later repudiated by refusing to sign the written minutes of settlement.

The Board held that a binding oral settlement had been reached and that the execution of written minutes was merely procedural.

Consequently, the Board found the grievances were no longer arbitrable and dismissed them.

The complainant filed a duty of fair representation complaint against his union, alleging arbitrary conduct during a 1980 arbitration hearing regarding his discharge.

The Board declined to inquire into the complaint due to substantial undue delay, noting the events occurred three years prior and the complainant failed to provide an adequate explanation for the delay.

Furthermore, the Board found the complaint did not make out a prima facie case, as the union had provided an experienced grievance officer and subsequently sought judicial review of the unfavourable arbitration award.