Paul J.J. Cavalluzzo

The respondents, former employees and officers of a union local, brought an application before the Ontario Labour Relations Board alleging unfair labour practices.

They requested the vice-chair recuse himself because he had previously acted for one of the respondents in an employment dispute.

The vice-chair declined and dismissed the application for serving no labour relations purpose.

The Divisional Court quashed the decisions, finding a conflict of interest.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by applying the test for a lawyer's conflict of interest rather than the test for reasonable apprehension of bias by an adjudicator.

The Court found the presumption of impartiality was not rebutted and reinstated the vice-chair's decisions.

The appellants challenged a regulatory decision reducing a power generator's proposed revenue requirements for nuclear compensation costs during a forward test period.

The Court of Appeal held that future compensation costs mandated by existing collective agreements were committed costs, not forecast costs that could simply be managed downward.

The Board acted unreasonably by relying on hindsight and current benchmarking information unavailable when the collective agreements were made, and by failing to conduct a prudence review based on what was known or ought to have been known at the time of the commitments.

The matter was remitted to the Board for rehearing in accordance with those principles.

Public sector unions and individual employees brought constitutional challenges to two federal statutes enacted through omnibus budget legislation: the Expenditure Restraint Act and the Public Sector Equitable Compensation Act.

The applicants moved to sever the combined challenges or, alternatively, amend their applications to retain only the Expenditure Restraint Act challenge and pursue the pay equity challenge later.

The respondent opposed severance, arguing the evidence and pleadings were already intertwined.

The court held that although the Rules of Civil Procedure do not expressly provide for severance of an application, leave to amend under Rule 26.01 was appropriate because no non-compensable prejudice would result.

Leave was granted to amend the notices of application to proceed only with the Expenditure Restraint Act challenge, without prejudice to commencing fresh applications challenging the Public Sector Equitable Compensation Act.

Applicants in two related constitutional applications sought procedural relief to separate challenges to two different federal statutes enacted within the same budget legislation: the Expenditure Restraint Act and the Public Sector Equitable Compensation Act.

They requested severance of the combined challenges or, alternatively, leave to amend the applications to pursue only the wage restraint challenge while preserving the right to challenge the pay equity legislation later.

The court held that although the Rules of Civil Procedure contain no explicit severance mechanism for applications, the requested relief could be granted through amendment principles under Rule 26.01 where no non-compensable prejudice arises.

The court granted leave to amend the notices of application to retain only the Expenditure Restraint Act challenge and permitted the applicants to commence a future application concerning the Public Sector Equitable Compensation Act.

No costs were awarded, and the parties were encouraged to seek case management.

The appellants, including Ontario Power Generation Inc. (OPG) and two unions, appealed a decision of the Ontario Energy Board (OEB) that disallowed $145 million of OPG's forecast nuclear compensation costs for the 2011-2012 test period.

The appellants argued the OEB was required to presume the collective agreements were prudent when entered into and could not use hindsight to assess their reasonableness.

The Divisional Court dismissed the appeal, holding that the OEB was not restricted to a retrospective prudence review for forecast costs and was entitled to consider current market comparators to ensure rates were just and reasonable for consumers.

The court also found the OEB's reasons were adequate and its decision did not violate section 2(d) of the Charter.

The appellants, representing federal public servants, RCMP, and Canadian Forces personnel, appealed the dismissal of their actions seeking the return of over $28 billion to their pension plans.

The Government had amortized and later withdrawn actuarial surpluses from the Superannuation Accounts.

The Court of Appeal dismissed the appeal, finding that the Superannuation Accounts were merely legislated ledgers containing no actual assets, as employee contributions were deposited into the Consolidated Revenue Fund.

The Court held that the Government did not owe a fiduciary duty to the plan members regarding the surplus, nor was it unjustly enriched.

Furthermore, the 2000 amendments to the governing statutes clearly authorized the Government to withdraw the actuarial surplus.

The applicant police officers sought judicial review of a Human Rights Tribunal of Ontario decision ordering the production of their personnel files in relation to a human rights complaint.

After the police service confirmed no responsive records existed, the respondents argued the application was moot.

The Divisional Court agreed, finding no live controversy remained.

The Court declined to exercise its discretion to hear the moot case, noting that recent Supreme Court of Canada jurisprudence regarding police disciplinary records should be applied in a genuine adversarial context.

The appellants challenged the constitutionality of the Agricultural Employees Protection Act, 2002, arguing it violated their rights under sections 2(d) and 15 of the Charter by excluding agricultural workers from the Labour Relations Act and failing to provide statutory protections for collective bargaining.

The Court of Appeal held that the Act violates section 2(d) by substantially impairing the ability of agricultural workers to engage in meaningful collective bargaining, as it lacks a duty to bargain in good faith, recognition of majoritarian exclusivity, and dispute resolution mechanisms.

The court dismissed the section 15 claim, finding no discrimination on an analogous ground.

The section 2(d) violation was not saved under section 1, as the wholesale exclusion of agricultural workers was not rationally connected to the objective of protecting the family farm and did not minimally impair the right.

The Act was declared invalid, with the declaration suspended for 12 months.

Canada Post sought judicial review of an arbitrator's decision to change the cut-off date for calculating damages in a prior award, arguing the arbitrator was functus officio.

The arbitrator had initially set the date without hearing submissions, leading to a mistaken belief of facts.

The Divisional Court dismissed the application, holding that the arbitrator's initial failure to allow submissions amounted to a denial of natural justice.

Therefore, the arbitrator had the power and duty to revisit the issue and correct the error, falling within a recognized exception to the functus officio doctrine.

The appellant employer appealed a Divisional Court decision dismissing its application for judicial review of an arbitral award.

The arbitrator had ruled that the employer was obligated under the collective agreement to reimburse employees for the newly enacted Ontario Health Premium.

The Court of Appeal held that the standard of review for the arbitrator's decision was patent unreasonableness, even though the arbitrator interpreted a statute of general application, because the statutory interpretation was secondary to interpreting the collective agreement.

The Court found the arbitrator's award was not patently unreasonable and dismissed the appeal.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his complaint that his union breached its duty of fair representation.

The union had negotiated mid-term amendments to a collective agreement with Loblaws to address competition from Wal-Mart, without holding a ratification vote by the general membership.

The Divisional Court held that the standard of review was patent unreasonableness and found that the Board's interpretation of the Labour Relations Act and its conclusion that the union acted fairly and reasonably were not patently unreasonable.

The application for judicial review was dismissed.

The applicant union sought judicial review of an arbitrator's decision dismissing an employee's discharge grievance.

The employee was terminated following a workplace altercation where he verbally and physically confronted a more senior employee.

The applicant argued the arbitrator breached natural justice, made findings without evidence, and improperly failed to substitute a lesser penalty.

The Divisional Court dismissed the application, finding no breach of fairness, sufficient evidence to support the arbitrator's findings, and no improper considerations in the penalty assessment.

Canada Post conducted a covert video surveillance investigation into mail theft by employees.

After the investigation concluded and criminal charges were laid, Canada Post dismissed the employees caught on tape.

The union grieved the dismissals.

The arbitrator ruled that under article 10.02 of the collective agreement, Canada Post was required to give notice of alleged misconduct within ten days of identifying an employee on the videotape, and failure to do so precluded reliance on the misconduct for dismissal.

The Divisional Court dismissed Canada Post's application for judicial review.

On appeal, the Court of Appeal held that the arbitrator's interpretation of the collective agreement and his factual finding on when the notice period commenced were not patently unreasonable.

The appeal was dismissed.

The appellant teachers' union appealed a Divisional Court decision that quashed an arbitrator's award regarding the interpretation of a wage freeze provision under the Social Contract Act.

The Divisional Court had held that the arbitrator was bound by a previous Court of Appeal decision that upheld a different arbitrator's conflicting interpretation.

The Court of Appeal allowed the appeal, holding that its previous decision only determined that the prior arbitrator's interpretation was not patently unreasonable, not that it was the only correct interpretation.

The Court found that the current arbitrator's interpretation was also not patently unreasonable and reinstated the award.

On an employer's appeal from the dismissal of its appeal from a Board of Inquiry decision, the court considered the legality under the Human Rights Code of a workplace alcohol and drug testing policy for employees in safety-sensitive positions.

The court held that substance abuse, including perceived substance abuse, is a handicap and applied the unified three-step BFOR analysis from Meiorin to assess whether the impugned rules were justified.

Random drug testing, pre-employment drug testing, and mandatory disclosure, reassignment and reinstatement rules were discriminatory and not justified, but random alcohol testing could be justified as a BFOR if sanctions for a positive result were individually tailored.

The court also held that the Board lacked jurisdiction to inquire into the policy's drug-testing provisions, set aside the finding of a s. 13(1) breach, upheld the mental anguish award, and otherwise dismissed the appeal.

The appellant union appealed from the dismissal of an application for judicial review of a labour arbitration award.

The dispute concerned whether an employee’s claim for weekly indemnity benefits under an insurance policy required by a collective agreement fell within the exclusive jurisdiction of a labour arbitrator where the employer had complied with its obligation to provide and pay for the policy.

The court, relying on its reasons in a companion appeal, held that the claim against the insurer was not arbitrable in those circumstances.

Applying curial deference on a patent unreasonableness standard, the court found the arbitrator’s interpretation of the collective agreement was open to him and upheld the dismissal of the grievance.

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 appellants challenged amendments to Bill 160 that removed principals and vice-principals from teacher bargaining units, excluded them from the provincial labour relations regime, and ended their statutory membership in teachers' organizations.

They argued the amendments were a reprisal for participation in a province-wide protest against education reform legislation and therefore infringed freedom of expression and freedom of association under ss. 2(b) and 2(d) of the Charter.

The court held that the appellants failed to prove, on a balance of probabilities, that the legislative purpose was punitive rather than corrective, and further held that exclusion from a statutory collective bargaining scheme and removal of mandatory statutory union membership did not violate s. 2(d).

The appeal was dismissed with costs.

The appellant employer was found by a three-member panel of the Ontario Labour Relations Board to have failed to bargain in good faith by not disclosing an impending plant closure.

Before the decision was finalized, the panel discussed the policy implications of the case at a full board meeting.

The appellant challenged the decision, arguing the full board meeting violated the rules of natural justice, specifically the principles of 'he who decides must hear' and 'audi alteram partem'.

The Supreme Court of Canada dismissed the appeal, holding that institutional consultation processes like full board meetings do not violate natural justice provided they are limited to policy discussions, facts are taken as given, no votes are taken, and parties are given an opportunity to respond if new grounds are raised.