Nicole Butt

The applicant employer sought judicial review of an arbitrator's interlocutory decision finding that the employer engaged in prima facie discrimination by denying a creed-based exemption to its COVID-19 vaccination policy.

The Divisional Court raised the issue of prematurity, as the arbitrator had bifurcated the hearing and had not yet determined whether the employer could accommodate the grievor without undue hardship.

The Court dismissed the application for judicial review as premature, finding no exceptional or extraordinary circumstances to justify departing from the general rule against fragmenting ongoing administrative proceedings.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed her complaint against her union, the Ontario Nurses' Association (ONA).

The applicant alleged the ONA failed in its duty to accommodate her disability.

The Divisional Court held that the Tribunal's decision was reasonable and procedurally fair, as neither the employer nor the union knew of the disability prior to termination, and the employer subsequently refused to consider reinstatement.

The court confirmed that a union cannot be found to impede accommodation efforts when the employer makes no such efforts.

The applicant union sought judicial review of a labour arbitration award that upheld the termination of a registered nurse for stealing narcotics from the respondent hospital.

The nurse suffered from a drug addiction.

The Divisional Court found that the arbitrator's decision was unreasonable because he failed to properly consider whether the hospital engaged in indirect discrimination by terminating the nurse rather than accommodating her disability.

The arbitrator improperly equated the nurse's guilty plea to criminal theft with voluntary behaviour in the human rights context, applying a higher standard of causation than required.

The court set aside the arbitration award and remitted the matter back to the arbitrator to determine the issue of indirect discrimination.