Employment and Labour Law - ONSCDC

The applicant sought judicial review of several Ontario Labour Relations Board (OLRB) decisions arising from her layoff and a letter of expectation.

The respondents argued the application was premature because one of the applicant's four OLRB applications was still ongoing following a successful reconsideration request.

The Divisional Court agreed that proceeding with the judicial review while related OLRB proceedings were ongoing would risk fragmentation and inconsistent findings.

The court adjourned the application for judicial review until the final decision on the outstanding OLRB application.

The applicant union sought judicial review of an arbitrator's decision dismissing a 2021 group grievance as an abuse of process.

The arbitrator had concluded the grievance was identical in substance to a 2017 grievance that was settled by a consent award.

In doing so, the arbitrator relied on her own notes and recollections from the without-prejudice mediation of the 2017 grievance, without notice to the union.

The Divisional Court allowed the application, finding the arbitrator's decision unreasonable as she failed to analyze the actual settlement agreement to determine if the union had impliedly accepted the employer's position.

The matter was remitted to a different arbitrator.

The applicant employer sought judicial review of an arbitrator's decision confirming his jurisdiction over certain conductor-only grievances.

The Divisional Court dismissed the application as premature, finding that the arbitrator had only determined he remained seized of the process to decide the scope of his authority, but had not yet ruled on whether the specific lead grievances were arbitrable.

The court noted that any challenge to the arbitrator's general jurisdiction should have been brought after his initial 2018 interlocutory order.

The employer and seven employees sought judicial review of two decisions of the Ontario Labour Relations Board: a decision certifying the union as the bargaining agent for a unit of carpenters, and a decision dismissing requests for reconsideration.

The applicants argued the decisions were procedurally unfair because they were made without a hearing, and unreasonable because the Board failed to properly consider allegations that the union organizer used misrepresentation to obtain signed membership cards.

The Divisional Court dismissed the applications, finding that the Board's specialized procedures permitted it to decide the matter without a hearing, and that its decisions were rational, logical, and tenable based on the evidence and submissions.

The applicant union sought judicial review of a labour arbitration award.

The arbitrator found that the respondent nursing home breached the collective agreement by hiring non-unionized agency workers but declined to order any remedy beyond a declaration, citing the home's severe staffing shortages and regulatory obligations.

Applying the reasonableness standard of review, the Divisional Court held that the arbitrator's decision was justified, transparent, and intelligible.

The court noted that while the situation was problematic, the arbitrator reasonably concluded that other remedies would exacerbate the staffing crisis.

The application for judicial review was dismissed.

The City of Toronto sought judicial review of a labour arbitrator's decision substituting a 30-day suspension for the discharge of a municipal standards officer.

The officer had been terminated for alleged anti-Black racism and harassment after an incident involving two Black women in a closed park.

The City argued the arbitrator erred by requiring proof of racial motivation for a finding of discrimination and by failing to transparently treat the evidence.

The Divisional Court dismissed the application, finding the arbitrator reasonably responded to the City's specific allegations that the officer had singled out the complainants, and that there were no exceptional circumstances to justify interfering with the arbitrator's factual findings.

The appellant employer appealed a summary judgment decision awarding the respondent employee damages for wrongful dismissal.

The appellant argued the motion judge erred in finding the respondent made reasonable efforts to mitigate, alleging she fabricated records of online job applications.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the appellant failed to meet its onus to prove a failure to mitigate or fabrication of evidence.

The court also upheld the motion judge's determination that summary judgment was appropriate.

The applicant union sought judicial review of an interest arbitration award that set the terms of a renewal collective agreement for employees of a long-term care home.

The union argued that the wage adjustments awarded were unreasonable and that the arbitration board failed to provide adequate reasons, placed too much reliance on a master agreement, and failed to properly apply the statutory criteria under the Hospital Labour Disputes Arbitration Act.

The Divisional Court dismissed the application, finding that the board's decision was reasonable, adequately explained, and fell within the range of acceptable outcomes given the legislative nature of interest arbitration and the deference owed to such awards.

The applicant school board applied for judicial review of a labour arbitration award that upheld two grievances filed by the union on behalf of an employee with mental health disabilities.

The arbitrator had found that the employee was entitled to a sick leave refresh and that his return to work plan should have been accommodated through remote work.

Applying the Vavilov reasonableness standard, the Divisional Court found that the arbitrator's interpretations of the collective agreement and conclusions regarding medical evidence were internally coherent, justified, and reasonable.

The application for judicial review was dismissed.

The parties attended before the Divisional Court to advise that a conditional resolution had been reached in the application for judicial review.

On consent, the court adjourned the application to the next available date, to proceed only if the resolution is not completed.

No costs were ordered for the attendance.

The applicant sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing his application for lack of jurisdiction.

The applicant alleged he was assaulted by a coworker and subsequently terminated from his temporary assignment, claiming discrimination on various grounds.

The HRTO dismissed the application because the applicant failed to allege any nexus between a protected ground under the Human Rights Code and the alleged discriminatory conduct.

The Divisional Court found the HRTO's decision reasonable and concluded there was no denial of procedural fairness, as the HRTO acted in accordance with its rules.

The application for judicial review was dismissed.

The plaintiff, a federal penitentiary warden, commenced a civil action against a subordinate employee for defamation and harassment.

The defendant moved to strike the claim, arguing the court lacked jurisdiction under section 236 of the Federal Public Service Labour Relations Act because the matter was a workplace dispute subject to the statutory grievance process.

The motion judge allowed the action to proceed against the individual defendant and added the Attorney General as a party.

On appeal, the Divisional Court reversed the decision, holding that the broad scope of the grievance process ousted the court's jurisdiction over both the Crown and the individual employee.

The appeal was granted and the action dismissed.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision finding that it lacked just cause to dismiss a Black employee and that the dismissal was tainted by anti-Black racism.

The Divisional Court applied the reasonableness standard of review, deferring to the Board's factual findings and credibility assessments.

The Court upheld the Board's reliance on expert evidence regarding implicit bias and circumstantial evidence to conclude that race was a factor in the termination.

The application for judicial review was dismissed.

The College of Early Childhood Educators appealed a penalty order imposing a four-month suspension and conditions on an early childhood educator for failing to supervise a child and breaching professional standards.

The College sought revocation of the educator's license, arguing the penalty was clearly unfit and inconsistent with the misconduct findings.

The Divisional Court dismissed the appeal, finding the Discipline Committee properly considered mitigating factors, including a five-year period where the educator could not work due to unproven abuse allegations, and did not err in applying the principle of proportionality.

The applicant employer sought judicial review of an arbitration award that reinstated a grievor who had been discharged for fraudulent misconduct, substituting a ten-day suspension.

The arbitrator found the employer engaged in discriminatory treatment because other employees who committed similar misconduct received significantly lighter penalties.

The Divisional Court dismissed the application, finding the arbitrator reasonably shifted the evidentiary onus to the employer after the union established a prima facie case of discriminatory discipline, and reasonably concluded the penalty was appropriate.

The applicant union sought judicial review of an arbitration award that dismissed its grievance regarding the employer's use of key performance indicators (KPIs) to determine eligibility for a telework program during the COVID-19 pandemic.

The arbitrator had found that Letter of Understanding No. 11 (LOU 11) of the collective agreement, which governed monitoring and measurement, did not apply.

The Divisional Court held that the arbitrator's interpretation was unreasonable, as it failed to account for the plain wording of LOU 11 and the fact that KPIs are a form of measurement.

The award was quashed and the matter remitted for a new hearing before a different arbitrator.

The applicants sought judicial review of two decisions by the Ontario Labour Relations Board regarding the layoff of a foreman.

The Board had determined that the employer violated the collective agreement by laying off the foreman without regard to seniority rights.

Applying the reasonableness standard of review, the Divisional Court found that the Board's interpretation of the collective agreement was transparent, intelligible, and justified.

The application for judicial review was dismissed.

The applicant sought judicial review of two decisions of the Human Rights Tribunal of Ontario, which denied his request to amend his application and dismissed his application alleging discrimination in employment on the basis of age, race, and colour by the Toronto Transit Commission.

The Divisional Court applied the reasonableness standard of review and found that the Tribunal reasonably concluded the application had no reasonable prospect of success, as there was no evidence linking the failure to hire with the applicant's age, race, or colour.

The court also found the Tribunal reasonably denied the request to amend the application.

The application for judicial review was dismissed.

The self-represented appellant appealed an application judge's order enforcing an arbitral award that expelled him from the respondent union.

The Divisional Court issued a notice under Rule 2.1 considering dismissing the appeal as frivolous, vexatious, and an abuse of process.

The court found that it lacked jurisdiction, as appeals under the Arbitration Act lie to the Court of Appeal.

Furthermore, the appeal constituted an impermissible collateral attack on the underlying arbitral award, which the appellant had failed to challenge within the statutory timeframe.

The appeal was dismissed under Rule 2.1.01.

The applicant employer sought judicial review of an arbitrator's award finding it had violated a collective agreement by ceasing to produce engine blocks at its Windsor plant.

The arbitrator had interpreted a 'sole source' clause in a Memorandum of Settlement, concluding the employer could not move the work simply because production volumes fell below projections.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation was reasonable, properly considered the context of the negotiations, and did not violate the parol evidence rule.