Michael Klug

The applicant City sought judicial review of an arbitration award declaring September 19, 2022 (the day of mourning for Queen Elizabeth II) a paid holiday under the collective agreement.

The Divisional Court found the arbitrator's decision unreasonable because he failed to consider evidence of historical collective agreements and proclamations relevant to the City's estoppel argument.

However, the arbitrator's interpretation of the bilingual statutory instruments was reasonable.

The matter of estoppel was remitted to the same arbitrator for reconsideration.

The applicant filed a human rights application alleging discrimination in employment based on disability, claiming he developed a dry cough due to environmental sensitivities at the respondent's office.

The Tribunal held a summary hearing to determine if the application had no reasonable prospect of success.

The Tribunal found that the applicant failed to provide medical evidence of a disability and dismissed that portion of the application.

However, the Tribunal allowed the application to continue on the issue of whether the respondent discriminated against the applicant based on a perceived disability, as the applicant was terminated shortly after raising air quality concerns and working remotely.

The respondent in a human rights application alleging employment discrimination based on disability filed a Request for an Order During Proceeding seeking the production of the applicant's medical and financial records.

The Tribunal ordered the applicant to produce relevant medical records.

However, because the hearing had been bifurcated, the Tribunal deferred the production of tax and income documents, noting the respondent could renew the request if the application is upheld on its merits.

During an ongoing hearing for a human rights application, the respondent moved to dismiss the application, alleging it was frivolous, vexatious, or made in bad faith, and that the applicant failed to disclose clinical notes and destroyed personal notes.

The Tribunal dismissed the motion, finding it lacked the power to dismiss an application as frivolous mid-hearing under the Statutory Powers Procedure Act.

The Tribunal also found no irremediable prejudice from the late disclosure of clinical notes and no improper motive or relevance regarding the discarded personal notes.

The Attorney General for Ontario sought judicial review of an arbitration award between CUPE Local 27 and the Greater Essex County District School Board, arguing the arbitrator erred in interpreting s. 177 of the Education Act.

The Divisional Court dismissed the application for the reasons given in a related Stated Case (2016 ONSC 2361), finding the result was the same regardless of whether the standard of review was correctness or reasonableness.

Costs of $5,000 were awarded to CUPE Local 27.

The Minister of Education brought a Stated Case asking the Divisional Court to determine whether the Education Act permits school boards to pay for life insurance and health benefits for retired employees over 65 years of age.

The Minister argued that the Act only permits payments to current employees and that specific statutory authority is required for such expenditures.

The Court held that while ss. 177(3) and 177(4) do not authorize these payments, other sections of the Act, including ss. 58.5(1), 170(1)18, 171(1)3, and 177(1), when read together and in context, provide the necessary authority.

The Court found that school boards have the power to negotiate and pay for post-retirement benefits as part of employee compensation packages.

The proposed interveners, two unions, brought motions for leave to intervene in an application for judicial review concerning the payment of post-retirement benefits by a school board.

The judicial review was scheduled to be heard immediately after a related Stated Case in which both proposed interveners were already participating.

The court dismissed one union's motion to intervene, finding it could efficiently make its arguments in the Stated Case proceeding without prolonging the judicial review.

However, the court added the other union as a responding party because it was a joint signatory to the collective agreement at issue in the underlying arbitration.

In an interim decision regarding a human rights application alleging discrimination based on disability in teacher placements, the Tribunal addressed preliminary issues in writing.

The Tribunal restricted the intervenor union's participation to matters affecting its members' interests.

The Tribunal also ordered both the respondent school board and the intervenor to produce all arguably relevant documents pertaining to the applicant's assignments for the 2012-2013 and 2013-2014 school years, noting that privacy concerns regarding third-party names in staffing documents are adequately protected by the implied undertaking rule in Rule 3.3.

The applicant filed a Request for Order During Proceeding to reactivate her human rights application, which had been deferred pending a grievance arbitration.

The grievance was subsequently withdrawn.

The Tribunal found it appropriate to reactivate the application and directed the respondent to file a Response within 35 days.

The applicant filed a Request for an Order During Proceedings seeking to reactivate her human rights application, which had been deferred pending the conclusion of a union grievance.

The applicant claimed the grievance had been withdrawn, but the respondent submitted that the union advised the grievance remained active.

The Tribunal found no proper basis to conclude the grievance had been withdrawn and denied the request to reactivate the application.

The applicant filed a human rights application alleging reprisal, poisoned environment, and discrimination based on sex and disability, stemming from a 2005 incident where she witnessed the former Executive Director sexually assault a colleague.

The Tribunal issued a Notice of Intent to Dismiss for delay, as the application was filed more than one year after the last alleged incident.

Following a preliminary hearing by teleconference, the Tribunal dismissed the allegations relating to the 2005 incident and the subsequent investigation as out of time.

The Tribunal directed an in-person preliminary hearing to determine whether the delay in filing the remaining allegations was incurred in good faith, whether the respondent would suffer substantial prejudice, and whether certain allegations have no reasonable prospect of success.

The applicant requested that the Tribunal disregard the respondent's late Response and reactivate his deferred application following the conclusion of an Ontario Labour Relations Board proceeding.

The Tribunal waived the time limit for the late Response, finding no prejudice to the applicant and noting the applicant contributed to the delay by improperly delivering an unfinalized copy of the application to the respondent.

The Tribunal granted the request to reactivate the application, as the applicant complied with the Rules and the respondent did not oppose.

The matter was directed to mediation.

The applicant requested to defer her human rights application regarding disability accommodation pending the outcome of a reconsideration request and potential judicial review of a related, previously dismissed application concerning workplace harassment.

The Tribunal refused the request to defer, finding that the issues in the two applications were distinct and emphasizing the need to resolve the matter expeditiously given the age of the allegations and the ongoing conflict between the parties.

The applicant alleged discrimination on the basis of disability, marital status, and family status by her former employer and union following her termination for innocent absenteeism.

The Tribunal held a summary hearing to determine whether the application should be dismissed.

The Tribunal dismissed the allegations relating to incidents from 2009 and 2010 as untimely.

The Tribunal also dismissed the allegations against the union, finding no reasonable prospect of success as there was no evidence the union's actions were based on discriminatory factors.

However, the Tribunal declined to dismiss the timely allegations against the employer regarding the termination, finding that a prior settlement agreement between the union and employer did not appropriately deal with the substance of the human rights claim because the applicant was not a party to it.

The applicant filed a Request for an Order During Proceedings seeking to amend his human rights application to include new allegations of discrimination.

The respondent consented to the request and filed a second amended response.

The Tribunal granted the request on consent, ordering the application and response amended, and directed the applicant to file a consolidated book of pleadings prior to the hearing.

The respondent employer requested that the Tribunal defer the human rights application pending the conclusion of outstanding grievances, and dismiss parts of the application based on a prior settlement and section 45.1 of the Human Rights Code.

The Tribunal declined to defer the application because there was no indication the grievances were proceeding to arbitration.

The Tribunal also declined to strike pre-settlement allegations as the applicant confirmed he was only complaining about post-settlement conduct, and deferred the section 45.1 request to the hearing on the merits.

The applicant filed two human rights applications alleging discrimination and reprisal in employment.

The Tribunal considered whether to consolidate the applications and whether to defer them pending a related Judicial Review.

Finding significant overlap in facts, issues, and parties, the Tribunal ordered the applications consolidated.

Given the pending Judicial Review seeking similar remedies and raising identical facts, the Tribunal deferred the consolidated applications to avoid concurrent proceedings and inconsistent results.

The employer and union disputed whether Electronic Pre-Press (EPP) operator positions constituted a single 'job class' under the Pay Equity Act.

Some operators received a negotiated wage rate, while others received higher 'gold-circled' rates protected from previous positions after a technological restructuring.

The Tribunal held that the definition of 'job class' applies to determine if a single position constitutes multiple job classes.

Because the gold-circled employees had a different compensation schedule and range of salary rates than those earning the negotiated rate, the Tribunal concluded that the EPP operator positions did not constitute a single job class.

The applicant, a security guard, alleged discrimination based on ethnic origin and accent after being transferred at the request of the LCBO.

In this interim decision, the Tribunal removed the personal respondent, as the corporate respondent accepted vicarious liability.

The Tribunal declined to add the union as a party but added the applicant's employer, G4S, as a respondent.

The Tribunal also dismissed the LCBO's requests to dismiss the application for lack of a prima facie case and as an abuse of process, finding that the broad interpretation of employment could encompass the relationship between the applicant and the LCBO.

The complainant alleged she was subjected to sexual harassment, sexual solicitation, and reprisals by the personal respondent, the owner of the corporate respondent.

The personal respondent had previously pled guilty to criminal harassment arising from the same circumstances.

The Tribunal applied the doctrine of abuse of process to preclude the respondents from relitigating the facts underlying the guilty plea.

The Tribunal found that the complainant was subjected to sexual harassment and sexual solicitation, including unwanted physical touching and uninvited visits to her home.

The reprisal allegation was dismissed for insufficient evidence.

The Tribunal awarded $25,000 in general damages and $1,166.73 in special damages for lost wages.