Employment and Labour Law - ODC

Following a successful appeal regarding entitlements under the Employment Standards Act, the appellant sought substantial indemnity costs of approximately $31,000 for the entire action.

The respondent argued for no costs or partial indemnity costs of $5,000.

The Divisional Court rejected the request for substantial indemnity costs, noting the offers to settle did not strictly comply with Rule 49.

Applying principles of proportionality and reasonable expectations, the court awarded the appellant partial indemnity costs fixed at $4,500 for the motion and $6,000 for the appeal, plus disbursements.

The applicant, which operates both a nursing home and a retirement home, sought judicial review of a Pay Equity Hearings Tribunal decision.

The Tribunal had ruled that because the applicant held a nursing home license, its entire operation, including the private retirement home, was a 'public sector employer' subject to the proxy method of comparison under the Pay Equity Act.

The Divisional Court quashed the Tribunal's decision, finding that a literal interpretation of the statute led to absurd and unfair results, such as forcing a private, unfunded retirement home to use a public sector pay equity method simply because of common ownership with a nursing home.

The Court held that the definition must be read to apply only to the extent of the nursing home operations.

The appellant, a staff sergeant, appealed a decision of the Ontario Civilian Commission on Police Services upholding his conviction for discreditable conduct.

The charge arose from a meeting with a constable who had previously filed a racial harassment complaint against him.

The hearing officer found the appellant's conduct constituted a reprisal based on the constable's subjective perception, despite accepting the appellant's evidence denying any reprisal intent.

The Divisional Court allowed the appeal, finding the hearing officer and Commission erred by focusing on the constable's subjective perception rather than the appellant's intent, and by failing to consider whether the conduct was likely to bring discredit upon the police force.

The conviction was set aside.

The applicant union sought judicial review of an arbitrator's decision regarding a job posting following municipal amalgamation.

The Divisional Court held that the arbitrator erred in interpreting s. 33(3) of the Public Sector Labour Relations Transition Act, 1997, as that section only applies after notice to bargain a first collective agreement has been given.

The court found that the incumbent was not a member of the bargaining unit and his employment was governed by his contract of employment.

The application for judicial review was granted, the arbitrator's decision was quashed, and the matter was remitted to a newly constituted board of arbitration.

The appellant, a former teacher, appealed a decision of the Discipline Committee of the Ontario College of Teachers finding him guilty of professional misconduct for writing offensive letters in 1989.

He argued the College lacked jurisdiction over conduct occurring before its creation and that the delay in processing the complaint amounted to an abuse of process.

The Divisional Court dismissed the appeal, finding the College had jurisdiction to protect the public interest and that the delay, while inexcusable, did not impair the fairness of the hearing or cause significant prejudice.

The applicant union sought judicial review of a labour arbitrator's decision.

The arbitrator had to determine the meaning of 'without prejudice' in a prior arbitration decision and whether the current case was essentially the same as the prior one.

The Divisional Court applied the pragmatic and functional approach, determined the standard of review was reasonableness, and found the arbitrator correctly applied labour arbitration principles rather than strict common law concepts.

The application for judicial review was dismissed with costs.

The appellant appealed the dismissal of his wrongful dismissal claim.

The trial judge had found that a mutual release signed by the appellant was a complete defence to the action, as there was no evidence of coercion or unconscionability.

The appellant also appealed the trial judge's decision to allow an amendment to the statement of defence at the opening of the trial.

The Divisional Court found no merit in either ground of appeal and dismissed the appeal.

The respondent/defendant brought a cross-appeal regarding costs following a wrongful dismissal action under the Simplified Procedure Rule where the plaintiff sought $25,000.

The defendant had made a Rule 49 offer of one month's salary which the plaintiff did not accept.

The Divisional Court allowed the cross-appeal, finding no reason to deny the successful party its costs.

The court fixed costs for the trial, appeal, and cross-appeal at $10,000 all-inclusive, payable by the appellant/plaintiff to the respondent/defendant.

The Chief of Police appealed a decision of the Ontario Civilian Commission on Police Services that set aside a Hearing Officer's finding of discreditable conduct against a police officer.

The officer had been accused of sexually assaulting a woman while off-duty in the Dominican Republic.

The Hearing Officer found the complainant credible and ordered the officer dismissed.

The Commission overturned this decision, finding the complainant's evidence incredible.

The Divisional Court allowed the appeal, holding that the Commission failed to apply the correct standard of review (reasonableness) and improperly substituted its own credibility findings for those of the Hearing Officer.

The Hearing Officer's decision and penalty of dismissal were restored.

Seneca College brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order dismissing its application to dismiss the union's judicial review for undue delay.

The Divisional Court found that the motion judge did not err in exercising his discretion to allow the judicial review to proceed despite a 19-month delay, as there was no actual prejudice to the college.

The motion was dismissed.

The applicant employer sought judicial review of an Ontario Labour Relations Board (OLRB) decision finding it bound by a provincial collective agreement with the respondent union.

The OLRB had determined that a 1998 memorandum of agreement signed by the employer ratified earlier agreements and waived any right to challenge their validity.

The Divisional Court dismissed the application, holding that the OLRB's determination of union representation rights fell within its specialized jurisdiction and was protected by privative clauses.

Applying the patently unreasonable standard of review, the court found no basis to interfere with the OLRB's decision.

The applicant, a college professor, filed a human rights complaint alleging discrimination on the basis of handicap.

He also filed 14 grievances covering the same allegations under his collective agreement.

The Ontario Human Rights Commission exercised its discretion under s. 34(1)(a) of the Human Rights Code not to deal with the complaint, finding it could be more appropriately dealt with through the grievance and arbitration procedure.

The applicant sought judicial review, arguing the Commission's decision was patently unreasonable because it failed to investigate the efficacy of the grievance procedure.

The Divisional Court dismissed the application, holding that the Commission is not required to conduct a full-scale investigation into the efficacy of the grievance procedure and its decision was not patently unreasonable given the overlap between the grievances and the complaint.

The applicant employer sought judicial review of an arbitration award finding that its continued use of freelance columnists and reporters violated the collective agreement to the financial detriment of a laid-off editorial employee who had bumped into a lower-paying reporter position.

The Divisional Court applied the patent unreasonableness standard of review.

While acknowledging the employer's argument that the arbitrator's broad interpretation could lead to absurd results in other contexts, the court held that the interpretation was based on the plain meaning of the words and was not clearly irrational.

The application for judicial review was dismissed.

The applicant employer sought judicial review of an arbitrator's award which found that the employer could not discharge a grievor for events that were already known and covered by a prior one-day suspension.

The Divisional Court dismissed the application, finding that the arbitrator's conclusion was entirely reasonable on the record and not patently unreasonable.

Costs of $4,500 were awarded to the respondent union.

The applicant, a teacher with multiple sclerosis, sought judicial review of the Human Rights Commission's decisions refusing to refer her complaints of discrimination and reprisal to a Board of Inquiry.

The Divisional Court dismissed the application, finding that the Commission's decisions were not patently unreasonable as there was ample evidence to support its conclusions regarding the school board's accommodation efforts and the union's representation.

The Court also rejected the applicant's claims of procedural unfairness, including an argument based on the doctrine of legitimate expectations.

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 appellants appealed a trial judgment regarding the wrongful dismissal of a legal assistant who had worked for the appellant lawyer for 17 years.

The appellants argued the trial judge erred by not drawing an adverse inference from the respondent's refusal to waive solicitor-client privilege, by finding the respondent reasonably mitigated her damages, and by dismissing a claim for assigned disbursements.

The Divisional Court dismissed the appeal, finding no error in the trial judge's treatment of privilege, mitigation, or the lack of notice for the assigned disbursements.

The appellant employer appealed a trial judgment awarding a wrongfully dismissed employee three months' notice, an additional two months' notice for bad faith (Wallace damages), and substantial indemnity costs.

The employee, a 47-year-old single mother, was given two weeks' working notice and required to train her replacement, who had already started working before she was notified of her termination.

When she objected, the employer threatened to report her as having resigned to deny her employment insurance.

The Divisional Court dismissed the appeal, finding the notice period reasonable and upholding the bad faith damages due to the employer's insensitive and misleading conduct.

The applicant sought judicial review of two decisions by the Ontario Human Rights Commission refusing to deal with his age discrimination complaint on the basis that it was filed outside the six-month limitation period.

The applicant argued that the Commission breached the rules of natural justice by providing insufficient reasons and that its decision was patently unreasonable.

The Divisional Court dismissed the application, finding that the Commission's screening function attracts a standard of patent unreasonableness, the reasons provided were adequate for an administrative screening decision, and the decision to dismiss the complaint for untimeliness was supported by the evidence.

The applicant union sought judicial review of an Arbitration Board's decision regarding whether the union was entitled to grieve a matter as a union grievance.

The Divisional Court dismissed the application, finding that the Board's disposition of the issue was not patently unreasonable and reflected a careful analysis of the collective agreement.