Peter Charles Engelmann

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

The applicant, a CRA criminal investigator, brought an application for judicial review of the CRA's decision to deny her grievance regarding a transfer out of the Criminal Investigation Division.

The transfer was based on McNeil concerns stemming from a past disciplinary incident involving the copying of workplace CDs containing taxpayer information.

The Federal Court found the dispute was not moot.

The Court held the grievance decision was unreasonable because the decision maker relied solely on the PPSC's legal opinions regarding the applicant's credibility without justifying that reliance in light of contradictory considerations, including prior tribunal decisions reducing her discipline and the CRA's own policies on serious misconduct.

The application for judicial review was allowed and the matter remitted for redetermination.

The Member, a registered nurse, admitted to professional misconduct for engaging in a personal, romantic, and sexual relationship with a vulnerable patient from a supervised consumption site shortly after the therapeutic relationship ended.

The Discipline Committee accepted an Agreed Statement of Facts and a Joint Submission on Order, finding the Member committed professional misconduct including sexual abuse.

The Member was reprimanded, her certificate of registration was suspended for 6 months, and terms, conditions, and limitations were imposed.

The representative plaintiff brought a motion for summary judgment on the liability common issues in a class action for unpaid overtime on behalf of customer service employees of the defendant bank.

The court found that the bank's overtime policies, which required pre-approval, and its failure to record actual hours worked, violated the Canada Labour Code.

The court concluded that the bank permitted uncompensated overtime by failing to prevent it, thereby breaching its statutory and contractual duties to the class members.

In an unpaid overtime class action, the defendant bank inadvertently produced three employee survey theme reports and brought a motion seeking their return on the basis of solicitor-client and litigation privilege.

The court dismissed the motion, finding that the reports were factual summaries created by a third-party vendor for business purposes, did not contain legal advice, and were not created with the dominant purpose of litigation preparation.

The documents were ordered to remain produced.

The Crown and co-defendants moved to strike a crossclaim filed by a former correctional officer, John Barbro, which included claims for malicious prosecution, defamation, and bad faith wrongful dismissal.

The moving parties argued that the essential character of these claims arose from a collective agreement and thus fell within the exclusive jurisdiction of the Grievance Settlement Board (GSB).

The court applied the Weber framework, finding that the dispute's essential character was workplace-related, stemming from an incident, subsequent investigation, and disciplinary process governed by the collective agreement.

The court rejected arguments for concurrent jurisdiction based on the MCSA and PACA, and declined to exercise residual discretion.

The motion to strike the crossclaim (except for contribution and indemnity) was granted, with leave for Mr. Barbro to file an amended statement of defence and crossclaim.

The defendant brought a motion to strike the plaintiff's defamation claim against him on the basis that it disclosed no reasonable cause of action.

The plaintiff alleged the defendant republished a defamatory email by replying to the original sender and potentially blind copying others.

The court held that replying only to the sender does not constitute publication or republication in defamation law.

Furthermore, the plaintiff failed to plead material facts supporting the bald allegation that the email was blind copied to third parties.

The motion was granted and the claim against the defendant was struck without leave to amend.

The applicant school board sought judicial review of an arbitrator's decisions allowing a union grievance regarding the calculation of instructional minutes under a collective agreement.

The dispute centered on whether 'early bells' at certain schools required students to enter before the published start time, thereby exceeding the 300-minute instructional day cap.

The Divisional Court quashed the arbitrator's decisions, finding that the arbitrator fundamentally misapprehended the nature of the grievance and the evidence, and unreasonably awarded compensation without proof that teachers worked additional minutes or performed different duties.

The matter was remitted to a different arbitrator.

The applicants, individuals with intellectual disabilities residing in group homes, filed human rights complaints against the respondent unions.

They alleged that legal picketing by the unions at their group homes during lawful strikes constituted discrimination with respect to services and occupancy of accommodation under the Human Rights Code.

The Tribunal held a summary hearing to determine if the applications had a reasonable prospect of success.

The Tribunal found that the Code does not govern the relationship between a union and those using services at a place the union's members are picketing, as the union members were acting as union members rather than service providers.

The applications were dismissed.

The applicant, a person with intellectual disabilities living in a group home, alleged that picketing by the respondent union during a legal strike violated his Code rights.

As the applicant lacked legal capacity, his sister sought to be appointed as his litigation guardian.

The respondent union opposed the appointment, arguing that the sister had a conflict of interest due to her historical acrimony towards unions and picketing.

The Tribunal found that a family member can be a litigation guardian unless there is a clear, demonstrated conflict of interest with the incapable person.

The Tribunal concluded that the sister's strong views against the union did not establish a conflict of interest with her brother, and appointed her as litigation guardian.

The applicant, a female dispatcher in the Communications Division of the City of Brockville Fire Department, alleged sex discrimination against her employer and union regarding differences in wages, experience pay, breaks, and scheduling compared to firefighters in other divisions.

The respondents brought a request to dismiss the applications for failing to establish a prima facie case.

The Tribunal found that the equal wages claim was beyond the scope of the original complaint.

Regarding the remaining allegations, the Tribunal concluded that the differences in benefits were based on classification and function, not sex, and dismissed the applications due to insufficient evidence of discrimination.

The applicant, who lacked legal capacity, sought to have his sister appointed as his litigation guardian for a human rights application.

The respondent union argued that previous case law suggested the Tribunal lacked jurisdiction to make such an appointment.

The Tribunal held that its power to control its own process under the Statutory Powers Procedure Act and the Human Rights Code includes the jurisdiction to appoint a litigation guardian.

The Tribunal directed that a hearing be held to determine whether the proposed litigation guardian should be appointed in this specific case.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

Following the dismissal of the applicants' judicial review application on the grounds of delay, the respondents sought costs.

The court fixed costs on a partial indemnity scale, reducing the claimed amounts due to excessive hours, duplication of effort by multiple lawyers, and unexplained disbursements.

Costs were fixed at $18,000 plus disbursements for the respondent union and $14,000 plus disbursements for the respondent locals.

The appellant challenged the institutional independence and impartiality of the Canadian Human Rights Tribunal, arguing that the Canadian Human Rights Commission's power to issue binding guidelines and the Tribunal Chairperson's power to extend members' terms compromised procedural fairness.

The Supreme Court of Canada dismissed the appeal, holding that the Tribunal's main function is adjudicative but it also serves to implement government policy, warranting a lower standard of independence than a court.

The Court found that the guideline power is a form of law that does not fetter the Tribunal improperly, and the power to extend appointments does not threaten security of tenure or impartiality.

The applicants sought judicial review of an Ontario Labour Relations Board decision but delayed perfecting the application for 13 months.

The respondents brought a preliminary motion to dismiss the application for delay.

The Divisional Court granted the motion, noting the applicants offered no explanation for the delay, evaded explicit OLRB orders, and caused ongoing prejudice and uncertainty in a time-sensitive labour relations dispute.

The respondent was dismissed from his position as executive director of the appellant association for sexually harassing female employees.

The trial judge found that the conduct occurred outside the workplace and was consensual, concluding there was no just cause for dismissal.

On appeal, the Court of Appeal overturned the trial judge's decision, finding that the trial judge failed to account for the power imbalance between a supervisor and employees, and erred in characterizing work-related social events as outside the workplace.

The Court held that the respondent's pattern of sexually harassing conduct created an intolerable work environment and constituted just cause for dismissal.

The applicant union filed applications for certification and unfair labour practice complaints against two temporary personnel agencies, Dare Personnel Inc. and Personnel Force Inc. The union sought bargaining rights for electricians supplied by the agencies to the federal Department of Public Works.

The Board determined as a preliminary issue whether the agencies were the employers of the electricians.

Applying the York Condominium factors, the Board found that fundamental control over the electricians' day-to-day work, including direction, supervision, and the authority to remove them from the site, rested with Public Works, not the agencies.

Consequently, the Board concluded that the personnel agencies were not the employers and dismissed the certification applications.

The appellant CBC forced a journalist to choose between his position as a radio host and his role as president of a trade union after he published an article opposing free trade in a union newsletter.

The union filed a complaint alleging an unfair labour practice under s. 94(1)(a) of the Canada Labour Code.

The Canada Labour Relations Board upheld the complaint, finding the CBC's journalistic policy did not justify the interference.

The Supreme Court of Canada dismissed the CBC's appeal, holding that the Board's decision was within its jurisdiction and not patently unreasonable, and that the Board's interpretation of the external Broadcasting Act did not alter the overall standard of review to correctness.