Richard J. Charney

The applicant employer sought judicial review of an Ontario Labour Relations Board decision certifying the respondent union to represent a bargaining unit of operating engineers.

The employer challenged the Board's decision to exclude four working forepersons from the bargaining unit.

The Board had applied the 'majority-of-time' test because the forepersons supervised mixed crews, concluding the employer failed to prove they spent the majority of their time performing or supervising bargaining unit work on the application filing date.

The Divisional Court dismissed the application, finding the Board's choice and application of the test were reasonable and consistent with its specialized expertise in construction industry labour relations.

The applicant union sought judicial review of a labour arbitration award that dismissed its grievance regarding the calculation of partial-day absences for relief letter carriers.

The arbitrator had found that the collective agreement did not require rounding up daily totals of partial absences and had considered the union's history of withdrawing similar grievances.

The Divisional Court applied the reasonableness standard of review and found that the arbitrator's interpretation of the collective agreement and use of extrinsic evidence were justified and internally coherent.

The application for judicial review was dismissed.

The applicant employer sought judicial review of an interlocutory decision by the Ontario Labour Relations Board.

The Board had declined to consider the employer's late-filed notice under s. 8.1 of the Labour Relations Act challenging the union's estimate of the proposed bargaining unit size.

The Divisional Court dismissed the application for judicial review on the basis of prematurity, finding no exceptional circumstances to justify interfering with the ongoing administrative certification process.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing its unfair labour practice complaint without a hearing.

The complaint alleged that the respondents improperly applied a local collective agreement over a provincial agreement in the construction industry.

The Divisional Court held that the application was not premature despite the applicant's failure to seek reconsideration from the Board.

However, the Court dismissed the application on the merits, finding the Board's decision reasonable.

The Board had reasonably concluded that the two collective agreements could co-exist, that inquiring into the complaint served no labour relations purpose since the affected employer did not participate, and that the declaratory relief sought was of limited practical utility.

The applicant employer sought judicial review of an arbitrator's decision regarding the calculation of pay for personal leave days taken by a locomotive engineer under the Canada Labour Code.

The arbitrator found that because the collective agreement did not specifically provide a method for calculating personal leave pay, the default calculation under s. 17(a) of the Canada Labour Standards Regulations applied, rather than the 'basic day' rate argued by the employer.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the legislation and the collective agreement was reasonable and consistent with the purpose of ensuring employees do not suffer a wage loss when taking personal leave.

This is an appeal from a Divisional Court decision that quashed an Ontario Labour Relations Board (OLRB) declaration.

The OLRB had declared Enercare Home & Commercial Services Limited Partnership, Ganeh Energy Services Ltd., and Beaver Energy Services Ltd. to be related employers under section 1(4) of the Labour Relations Act, 1995, but not Perras Mechanical Services Ltd. The Divisional Court found the OLRB's decision unreasonable for failing to consider bargaining history and collective agreements.

The Court of Appeal allowed the appeal, finding that the Divisional Court misapplied the reasonableness standard of review as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, and restored the OLRB's original decision.

The Union filed a policy grievance claiming that its bargaining rights extended to the PRESTO division of Metrolinx, arguing that PRESTO was functionally integrated into Metrolinx and that certain positions within PRESTO performed bargaining unit work.

The Employer maintained that the Union's bargaining rights were restricted to the GO Transit division, as explicitly stated in the collective agreement.

The Grievance Settlement Board dismissed the grievance, finding that the collective agreement clearly restricted bargaining rights to GO Transit and that PRESTO existed as a legitimate, identifiable division without sufficient functional integration to extend the bargaining unit.

The applicant union sought judicial review of two decisions by the Agricultural, Food and Rural Affairs Appeal Tribunal.

The Tribunal had dismissed an unfair labour practice complaint against the employer and rejected a constitutional challenge alleging that the Agricultural Employees Protection Act, 2002 violates the freedom of association under s. 2(d) of the Charter by failing to provide a right to strike.

The Divisional Court dismissed the application, finding the Tribunal's decision on the unfair labour practice was reasonable and its conclusion on the constitutional issue was correct, as it was bound by the Supreme Court of Canada's decision in Fraser.

The applicants sought judicial review of an Ontario Labour Relations Board (OLRB) decision declaring them 'related employers' under s. 1(4) of the Labour Relations Act, 1995.

The union had argued that the employer's use of independent contractors eroded bargaining rights.

The Divisional Court found the OLRB Vice Chair's decision unreasonable because it failed to consider the history of collective bargaining, the collective agreement, and letters of understanding regarding the employer's longstanding practice of contracting out work.

The court held that this failure led to a decontextualized analysis of the employer's control over the contractors.

The court set aside the OLRB decision and remitted the matter for a fresh hearing before a different Vice Chair.

The United Food and Commercial Workers International Union (UFCW) brought a Charter challenge alleging that Sections 2(1) and 5 of the Agricultural Employees Protection Act (AEPA) violated the freedom of association rights of agricultural workers at a medical marijuana facility under Section 2(d) of the Charter.

The Tribunal found that the AEPA provides a meaningful process of collective bargaining, including employee choice, independence, and a duty of good faith.

The Tribunal concluded that the absence of a statutory right to strike or a Wagner Act model of collective bargaining did not render the AEPA unconstitutional.

The Charter challenge was dismissed.

The Attorney General brought a motion to strike portions of the UFCW's affidavit evidence-in-chief on the first day of a scheduled constitutional challenge hearing.

The Tribunal dismissed the motion, finding it was brought too late and would unnecessarily disrupt the hearing schedule.

The Tribunal noted its broad discretion under section 15 of the Statutory Powers Procedure Act to admit evidence that might be inadmissible in court, and stated that issues of reliability and weight could be addressed during the hearing.

The Attorney General moved to strike portions of the UFCW's affidavit evidence-in-chief on the first day of a constitutional challenge hearing before the Agriculture, Food and Rural Affairs Appeal Tribunal.

The Tribunal dismissed the motion, finding it was brought too late and would disrupt the hearing schedule.

The Tribunal also noted its broad discretion under section 15 of the Statutory Powers Procedure Act to admit evidence that might be inadmissible in a court of law, leaving issues of reliability and weight for later determination.

The applicant brought a motion under section 21(5) of the Courts of Justice Act to set aside an order of a single judge of the Divisional Court.

The motion judge had dismissed the applicant's request to file four affidavits in support of its application for judicial review of a labour arbitration decision.

The Divisional Court dismissed the motion, finding no palpable and overriding errors of fact or errors of law.

The court agreed that the proposed affidavits, which detailed oral submissions made before the arbitrator, were an impermissible attempt to supplement the record and did not fall within the narrow exceptions for admitting affidavit evidence on judicial review.

Canada Post Corporation appealed an arbitrator's decision that reinstated Christopher Seivright, a temporary postal worker, after his dismissal for failing to demonstrate reasonable availability in accepting work assignments.

The arbitrator rejected Canada Post's use of a peer average acceptance rate (37.8% versus 49.9% peer average) as the sole basis for termination, finding it arbitrary and unreasonable.

The arbitrator considered contextual factors including the 24/7 operation of the York Distribution Centre, high parcel volume, the grievor's seniority, and the actual number of shifts worked (57 shifts, placing him in the top 25-30% of temporary employees).

The Divisional Court upheld the arbitrator's decision as reasonable despite departing from prior arbitral jurisprudence on certain points.

The Court of Appeal dismissed the appeal, finding no binding arbitral precedent for mechanical application of acceptance rate standards and confirming that reasonable availability must be assessed on a case-by-case basis considering relevant workplace circumstances.

The United Food and Commercial Workers International Union (UFCW) and several individual complainants filed a complaint against MedReleaf Corp. under the Agricultural Employees Protection Act, 2002 (AEPA).

The complainants alleged that MedReleaf failed to provide the union a reasonable opportunity to make representations and thwarted attempts to organize through threats, intimidation, and coercion.

The Tribunal found that MedReleaf did not violate the AEPA.

MedReleaf had reasonably requested confirmation of the union's representational status, which the union refused to provide.

Furthermore, MedReleaf discharged its reverse onus under the AEPA, proving that it did not engage in an anti-union campaign, did not use external agents to intimidate employees, and did not unlawfully discipline or dismiss employees.

The applicants sought judicial review of a decision of the Ontario Labour Relations Board on a Ministerial reference, arguing they were denied procedural fairness because the Minister's question was inaccurately conveyed to them.

The Divisional Court dismissed the application, holding that the Board's decision on a Ministerial reference is an advisory opinion that does not determine legal rights and is therefore not reviewable on procedural fairness grounds.

Furthermore, the court found that the procedural defect did not result in a substantial wrong or miscarriage of justice, as the applicants had ample opportunity to address the core issues and the outcome would not have been different.

In a grievance arbitration concerning the scope of the Union's bargaining rights, the Employer sought to bring a summary judgment motion after Phase 1 of the evidence.

The Union objected, arguing the parties' procedural agreement precluded such a motion.

The arbitrator agreed with the Union, finding the agreement's provisions for a holistic approach and final argument on all issues precluded a summary judgment motion at this stage.

The Union also sought an order requiring the Employer to detail discrepancies between job descriptions and actual duties for 88 positions.

The arbitrator dismissed this request, holding it was inappropriate in an adversarial proceeding to compel the Employer to conduct extensive research to build the Union's case.

Canada Post Corporation applied for judicial review of an arbitration award that reinstated a temporary employee dismissed for failing to demonstrate reasonable availability.

The arbitrator found the dismissal unjustified, introducing a requirement for corporate prejudice.

The Divisional Court held that while the arbitrator failed to follow established arbitral jurisprudence and impermissibly amended the collective agreement by requiring corporate prejudice, his ultimate conclusion that the dismissal was unreasonable remained defensible on the facts.

The application for judicial review was dismissed, with one judge dissenting.

The applicant union sought judicial review of an arbitration award that dismissed a policy grievance concerning the employer's amendment to its photo identification policy.

The amendment discontinued the practice of allowing non-management employees to bring an occasional visitor on transit vehicles without paying a fare.

The Divisional Court held that the arbitrator's interpretation of the collective agreement was reasonable, as the plain wording did not require consideration of past practice.

The Court also found that the arbitrator reasonably concluded the employer's past practice did not give rise to an estoppel, as there was no representation by the employer that the practice would continue.

The application for judicial review was dismissed.

In a policy grievance asserting bargaining rights over PRESTO and UP Express, the union sought production of documents showing when bargaining unit members performed work for other lines of business.

The employer objected, arguing the request was overbroad and a fishing expedition.

The Grievance Settlement Board held that the union's broad request for all instances of crossover work was overbroad.

However, the Board ordered production of documents relating specifically to the work the union had particularized at UP Express and PRESTO, finding this narrower request to be a proportionate and specific inquiry relevant to the union's theory of the case.