Patrick F. Milloy

A long‑term employee brought an action for wrongful dismissal and discrimination under the Human Rights Code after being terminated for making threatening remarks toward coworkers when leaving the workplace following a disciplinary meeting.

The employee argued that the threats were the result of an undisclosed mental disability and that the employer should have investigated and accommodated him rather than terminating his employment.

The court held that the employer had no knowledge of the employee’s psychiatric condition at the time and was not required to diagnose or infer a disability.

Given the seriousness of the threats, which constituted workplace violence, the employer was entitled to terminate the employee for just cause in order to protect other staff.

The court concluded that the Human Rights Code did not shield the employee from the consequences of serious misconduct unrelated to any known disability.

The applicant, a restaurant manager, was dismissed shortly after being hospitalized for a cardiac condition.

The respondents claimed the dismissal was due to poor performance and that the decision was made prior to learning of the hospitalization.

The Tribunal found that the applicant's heart disease and diabetes constituted disabilities under the Code.

The Tribunal concluded that the respondents failed to prove that performance was the sole reason for dismissal, finding that the applicant's need for a disability-related leave and his impending eligibility for benefits were factors in the decision to terminate his employment.

The Tribunal awarded $19,240 for lost wages and $30,000 for injury to dignity, feelings, and self-respect, along with public interest remedies.

The corporate respondent in a human rights application alleging discrimination on the basis of sexual orientation requested an order for the production of documents from a non-party, the City of Windsor.

The requested documents related to a municipal investigation into the applicant's complaint about the same incident.

The Tribunal found the documents to be arguably relevant and ordered the City of Windsor to produce them, subject to the right to redact personal information.

The respondents in an application for judicial review brought a motion to strike over 100 paragraphs from the applicant's affidavit.

The applicant, a suspended police officer, sought judicial review regarding the disbandment of the Leamington Police Service and related severance and disciplinary issues.

The moving parties argued the challenged paragraphs were irrelevant, contained legal argument, or expressed personal opinions.

The Divisional Court agreed that the affidavit should be confined to relevant facts and non-contentious background.

The court struck the majority of the challenged paragraphs, finding they dealt with the merits of underlying charges not directly at issue, contained legal arguments better suited for a factum, or expressed unsupported personal views.

The applicant teachers' federation sought a stay of a Minister of Labour order pending judicial review.

The order revoked a previous designation allowing a multi-site joint Health and Safety Committee, requiring the school board to establish site-based committees at each of its 94 schools.

Applying the RJR Macdonald test, the court found there was a serious issue to be tried, but the applicant failed to demonstrate clear and non-speculative irreparable harm.

The balance of convenience favoured the respondent school board, as the multi-site system was not working and impeded its ability to comply with health and safety obligations.

The motion for a stay was dismissed.

The union brought a motion to dismiss an application for termination of bargaining rights in the construction industry.

The union argued that on the date of the application, there were no individuals employed by the employer working in the construction industry.

The Board found that the employees, who were preparing their trucks at the employer's yard after a seasonal layoff, were not engaged in the construction industry on the application date because there was no nexus to a construction site.

As there were no employees in the bargaining unit on the application date, the Board granted the union's motion and dismissed the termination application.

Following a consultation, the Ontario Labour Relations Board determined that it did not require viva voce evidence to decide the application.

The Board indicated that a decision would be issued in due course.

OPSEU applied for certification to represent paramedic employees who became employees of the County of Essex following the provincial downloading of land ambulance services.

The County, along with intervenors Teamsters and CUPE, argued the application was barred because the paramedics were already covered by one of their existing collective agreements.

The Board found that the scope clauses of the Teamsters and CUPE collective agreements provided complementary, all-employee coverage with no gap for OPSEU to assert bargaining rights.

Consequently, OPSEU's application was dismissed as untimely or otherwise barred, and the Board directed the remaining parties to determine which of the two existing units the paramedics fall into.

The union applied for certification under the Agricultural Labour Relations Act.

The employer raised a preliminary objection to the Board's jurisdiction, arguing the agriculture industry division was not properly designated because the Chair did not consult the Agricultural Labour Management Advisory Committee.

The Board dismissed the objection, finding no statutory requirement for such consultation.

The Board then considered an allegation regarding a union membership card signed by an intervening employee who subsequently changed her mind and asked for the card back.

The Board held that the initial application for membership was valid and that a subsequent change of heart did not invalidate the card for the purposes of the certification application.

As the union had sufficient membership evidence, a certificate was issued.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding whether the labour relations of Transit Windsor fall under provincial or federal jurisdiction, following the union's request for a conciliation officer.

Transit Windsor operates a municipal transit system but also runs a regular and continuous extra-provincial bus service to Detroit, Michigan.

Applying constitutional principles, the Board determined that the extra-provincial services, though comprising only 3% of total working hours, constituted a continuous and regular part of an indivisible undertaking.

Consequently, the Board advised the Minister that the labour relations between the parties fall within federal jurisdiction.

The union applied for certification of a tag-end bargaining unit including Operations Supervisors at Transit Windsor.

The employer argued that the Operations Supervisors exercised managerial functions and should be excluded under section 1(3)(b) of the Act.

The majority of the Board found that the Operations Supervisors exercised significant disciplinary powers, including issuing warnings and suspensions, which created a conflict of interest with bargaining unit employees.

The Board concluded that the Operations Supervisors exercised managerial functions and excluded them from the bargaining unit.

A dissenting member would have included them, finding their disciplinary role to be merely administrative.

The applicant union applied for a direction to settle a first collective agreement by arbitration under section 40a of the Labour Relations Act.

The union alleged that the employer failed to make reasonable and expeditious efforts to conclude a collective agreement and maintained uncompromising positions without reasonable justification.

The Board found that the employer's insistence on including anti-union philosophy language from its personnel manual and an overly broad job security clause restricting the union's ability to bargain regarding outsourcing with other employers constituted uncompromising positions without reasonable justification.

The Board concluded that the collective bargaining process had been unsuccessful due to these positions and directed the settlement of a first collective agreement by arbitration.

The union applied for a direction to settle a first collective agreement by arbitration.

After the hearing concluded but before the decision issued, an application to terminate the union's bargaining rights was filed.

The Board issued its decision directing arbitration without being aware of the termination application.

Upon reconsideration, the Board determined that it was appropriate under section 40a(22) of the Labour Relations Act to consider the first contract application before the termination application, given that the first contract hearing was substantially complete.

The termination application was therefore dismissed.

The applicant union applied for certification to represent a tag-end unit of employees at Transit Windsor.

The Board first found that the applicant was a trade union within the meaning of the Labour Relations Act, given its fifty-year history of collective bargaining.

The respondent argued that operations supervisors should be excluded based on a 1979 Board decision that excluded their predecessors (transit inspectors) from another unit, and urged the Board to dismiss that part of the application without an inquiry.

The Board declined to apply res judicata or estoppel, noting the passage of ten years and a change in job titles, and appointed a Board Officer to inquire into their duties.

Finally, despite disputes over the status of more than half the proposed bargaining unit, the Board issued an interim certificate under section 6(2) of the Act, finding that the disputes were not insuperable barriers to the commencement of meaningful collective bargaining.

The applicant union applied for certification and had to establish its status as a 'trade union' under the Labour Relations Act.

The respondent employer and objecting employees argued that the applicant was not a trade union because its constitution was not properly ratified by its members.

The Board found that the applicant, as a local chartered by the Canadian Labour Congress, was formed pursuant to an existing constitution, and the founding members agreed to be bound by it upon application for the charter.

The Board concluded the applicant is a trade union and directed a representation vote.

The applicant union filed four applications for certification.

A threshold issue was whether the applicant was a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

The respondents argued that the applicant was not a trade union because its constitution allowed vessel owners (alleged to be management) to join, and because some members were not employees.

The Board rejected these arguments, holding that the phrase 'organization of employees' does not mean 'organization of employees only', and that the presence of managerial members does not automatically preclude trade union status.

The Board found that the applicant had followed the necessary steps to form a trade union and declared it to be a trade union under the Act.