Employment and Labour Law - ODC

The applicant sought judicial review of two decisions by the Human Rights Tribunal of Ontario (HRTO) dismissing her discrimination complaint due to delay and denying reconsideration.

The applicant, who was on sick leave for breast cancer, received a notice in 2014 that her position was eliminated and she would be laid off upon her return to work.

She filed her HRTO application in 2018.

The HRTO found the triggering event for the one-year limitation period was the 2014 notice, not her future return to work.

The Divisional Court held that the HRTO's decisions were reasonable and dismissed the application for judicial review.

The applicant, a city councillor, sought judicial review of a decision by the city council to suspend his remuneration for 270 days based on a report by the integrity commissioner finding he engaged in sexual harassment.

The applicant alleged bias against both the commissioner and the council.

The Divisional Court dismissed the claims against the commissioner, finding he acted fairly and reasonably accommodated the applicant's health issues.

However, the court found a reasonable apprehension of bias against the city council due to public statements and conduct by members before the investigation concluded.

The court quashed the council's sanction decision but, rather than remitting it, imposed the same 270-day suspension itself due to the severity of the misconduct and the lack of an unbiased decision-maker.

The employer appealed a decision finding its employment contract's termination clause void for breaching the Employment Standards Act, 2000.

The application judge had awarded the employee ten months' common law notice.

The Divisional Court dismissed the appeal, upholding the finding that the 'for cause' provision illegally contracted out of the ESA by applying a common law 'just cause' standard rather than the statutory 'wilful misconduct' standard.

The Court also found no error in the application judge's assessment of the ten-month notice period, which appropriately considered the Bardal factors and the economic uncertainty at the onset of the COVID-19 pandemic.

The applicant police officer sought a stay of his dismissal from the police service pending judicial review of an Ontario Civilian Police Commission decision that confirmed his termination for discreditable conduct, neglect of duty, and deceit.

The court dismissed the motion for a stay, finding that the balance of convenience and irreparable harm did not favor the applicant.

The court noted that the applicant's losses were primarily financial and could be remedied with back pay if his judicial review application succeeded, whereas granting routine stays would contravene legislative policy.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his duty of fair representation complaint against his union due to extreme delay.

The applicant had waited 32 months after the union withdrew his grievances before filing the complaint, having pursued parallel proceedings at the Human Rights Tribunal and Superior Court in the interim.

The Divisional Court applied the reasonableness standard of review and upheld the Board's decision, finding that the Board reasonably concluded the delay was excessive, the explanation insufficient, and the prejudice to the union significant.

The applicants sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that barred their civil action against the respondents for constructive dismissal and assault.

The Tribunal had found that the underlying incident was a workplace accident, not an intentional assault, and that the civil claims were inextricably linked to the workplace injury, thus barred by section 28 of the Workplace Safety and Insurance Act.

The Divisional Court dismissed the application, holding that the Tribunal's factual findings were reasonable, the barring of the constructive dismissal claim was justified as a disguised tort claim, and there was no denial of procedural fairness.

The applicant brought an application for judicial review of an arbitrator's interpretation of schedules to two expired collective agreements.

Prior to the hearing, the parties ratified new collective agreements.

The Divisional Court dismissed the application, finding the matter moot as there was no longer a live controversy between the parties.

The court declined to exercise its discretion to hear the moot case, emphasizing that it does not provide advisory opinions and that the applicant had an obligation to bargain scheduling issues rather than await a court decision on expired agreements.

The applicant sought judicial review of an Ontario Labour Relations Board decision which dismissed her complaint that her former employer terminated her as a reprisal under the Occupational Health and Safety Act.

The Board had found she was terminated for cause.

The Divisional Court dismissed the application, finding no breach of procedural fairness or reasonable apprehension of bias by the Board's Vice-Chair.

Applying the reasonableness standard from Vavilov, the Court held that the Board's decision was logical, well-reasoned, and based on an extensive review of the evidence.

The appellant employer appealed a summary judgment decision awarding the respondent employee five months' reasonable notice for wrongful dismissal.

The respondent was terminated without cause after four and a half months of employment while five months pregnant.

The Divisional Court dismissed the appeal, holding that the motion judge did not err in considering the respondent's pregnancy as a factor under the Bardal framework when determining the reasonable notice period, nor did the motion judge err in the costs award.

The applicants sought judicial review of an adjudicator's decision finding them to be related employers under section 12 of the Employment Standards Act, making them liable for termination and severance pay to employees of One + One Fashions Inc. The Divisional Court applied a reasonableness standard of review.

The court found that the adjudicator reasonably applied the established criteria, concluding that the applicants had significant operational and financial control over the related business, and that the arrangement had the effect of defeating the true intent and purpose of the Act.

The application for judicial review was dismissed.

The applicants sought judicial review of an adjudicator's decision finding them liable as related employers for termination and severance pay owed to employees of a related business under the Employment Standards Act.

Applying a reasonableness standard of review, the Divisional Court upheld the adjudicator's decision.

The Court found that the adjudicator reasonably applied the established criteria for related employer liability, noting the applicants' significant financial and operational control over the related business.

The application for judicial review was dismissed.

The applicant, a First Nations Constable, sought judicial review of the termination of his appointment by the Commissioner of the Ontario Provincial Police.

The Commissioner had terminated the appointment on the basis that the applicant's employment as a Band Constable had been terminated by the Band Council, without providing details of the alleged misconduct or consulting further.

The Divisional Court found that the Commissioner failed to comply with the statutory duties under subsections 54(4) and (7) of the Police Services Act, which require consultation and the provision of reasonable information regarding the reasons for termination.

The court quashed the termination and remitted the matter to the Commissioner to be dealt with according to procedural fairness.

The applicant's request for a declaration of entitlement to wages was deferred to a separate civil action.

The applicant school board sought judicial review of an arbitrator's award regarding the scheduling of lunch breaks for teachers and pupils.

The arbitrator had found that the collective agreement, which incorporated Regulation 298 under the Education Act, required teachers and students to have a 40-minute lunch break at the same time.

The Divisional Court held that the standard of review for the arbitrator's interpretation of outside legislation was correctness.

The Court found the arbitrator erred in reading 'at the same time' into the regulation, allowed the application, set aside the awards, and dismissed the grievance.

The applicant, the Régie des rentes du Québec, brought an application for judicial review of a decision by the respondent, the Pension Commission of Ontario, which had approved the withdrawal of a pension surplus by an employer.

The pension plan had members in both Ontario and Québec.

The respondent, acting as the major authority under a reciprocal agreement, applied Ontario law exclusively to the surplus application.

The Divisional Court found the respondent's decision unreasonable because it failed to consider or apply Québec law to the Québec members, despite the plan's terms and the lack of an express exemption.

The decision was quashed as it affected Québec members and remitted for reconsideration.

Canada Post applied for judicial review of an arbitrator's decision reinstating 29 employees dismissed for theft.

The arbitrator ruled that evidence of the thefts was inadmissible because Canada Post failed to provide the employees with a report of their infractions within ten days, as required by the collective agreement.

Canada Post argued this interpretation was patently unreasonable because it prevented covert investigations of widespread criminal activity.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation was not patently unreasonable as it was consistent with 20 years of arbitral jurisprudence and the collective agreement's stare decisis clause.

The Commissioner of the Ontario Provincial Police applied for judicial review to quash a penalty imposed on a police officer by a retired superintendent following a disciplinary hearing.

The Commissioner argued that while the superintendent had delegated authority to conduct the hearing, he lacked jurisdiction to impose the penalty.

The Divisional Court dismissed the application, finding that the Police Services Act contemplates the person conducting the hearing also imposing the penalty.

Furthermore, the court exercised its discretion to refuse judicial review because the Commissioner had fully participated in the penalty hearing and invited the superintendent to exercise the very jurisdiction she later challenged.

Three employers applied for judicial review of arbitration awards that reinstated employees who had been discharged following criminal convictions for sexual assault in the workplace.

In each case, the arbitrators had allowed the unions to collaterally attack the criminal convictions and had concluded the employees were innocent.

The Divisional Court granted the applications and quashed the arbitration awards, holding that a criminal conviction cannot be collaterally attacked at a subsequent arbitration.

The doctrine of abuse of process prevents an arbitrator from retrying a criminal case and treating a conviction as merely prima facie evidence.

The applicant ballet company sought a stay of an interim arbitral award that suspended the non-renewal of the respondent dancer's employment contract and ordered her reinstatement pending a final decision.

The applicant argued the arbitrator lacked jurisdiction to order reinstatement under the Labour Relations Act.

The court dismissed the motion for a stay, finding that while there was a serious question to be tried regarding jurisdiction, the applicant failed to establish irreparable harm.

The balance of convenience strongly favoured the respondent, as a further hiatus in dancing would likely end her career, whereas the applicant would not suffer a fatal blow if she were reinstated.

The appellant, a corrections officer who was severely injured by an inmate, appealed a decision of the Criminal Injuries Compensation Board.

The Board had awarded the maximum amount for pain and suffering but deducted a $12,000 Non-Economic Loss (NEL) award received from the Workers' Compensation Board, pursuant to s. 17(3) of the Compensation for Victims of Crime Act.

The appellant argued this resulted in a double deduction because his long-term disability insurance also deducted the NEL award.

The Divisional Court dismissed the appeal, finding the Board properly exercised its discretion and that any dispute regarding insurance deductions was a matter between the appellant and his insurer.

The appellant teacher appealed a decision of the Fitness to Practise Committee of the Ontario College of Teachers.

The Committee had found the appellant incapacitated due to a mental condition that led to serious boundary violations with a student.

The Committee rejected a joint submission on penalty and imposed more stringent conditions, including a requirement for therapy and a psychiatric assessment before returning to teaching.

The Divisional Court dismissed the appeal, finding that the Committee properly followed procedural fairness when rejecting the joint submission and reasonably exercised its statutory duty to protect the public interest.