Robert Fredericks

The applicant sought judicial review of a labour arbitrator's decision regarding the calculation of 'full net pay' for disabled firefighters under the collective agreement.

The arbitrator had ruled that the employer could deduct notional OMERS pension plan contributions from the calculation of full net pay, even when the employee had a disability waiver in place, to ensure continuity of take-home pay rather than providing a windfall.

The Divisional Court applied the reasonableness standard of review and found the arbitrator's interpretation of the collective agreement was justified and unassailable.

The application for judicial review was dismissed.

The applicant municipality sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision granting loss of earnings benefits to a firefighter who was terminated for cause but subsequently diagnosed with work-related post-traumatic stress disorder.

The Tribunal applied the 'worker conduct' line of cases, finding that the worker's condition rendered him unemployable and that his loss of earnings resulted from the compensable injury rather than his termination.

The Divisional Court dismissed the application, holding that the Tribunal's interpretation of section 43 of the Workplace Safety and Insurance Act and its assessment of the medical evidence were reasonable.

The plaintiff, a long-term shift leader at a City of Toronto homeless shelter, was terminated for cause following allegations that he stole maintenance fees from vulnerable clients and issued fraudulent receipts.

The plaintiff sued for wrongful dismissal.

The Superior Court of Justice found that the employer's investigation was deeply flawed, relied on false assumptions, and failed to prove theft or fraud on a balance of probabilities.

While the plaintiff erred in issuing two receipts to calm a client in crisis, this misconduct did not warrant dismissal.

The court awarded 18 months' reasonable notice, plus $65,000 in Wallace/Keays damages for the employer's unfair, insensitive, and bad faith conduct during the dismissal process, which caused the plaintiff mental distress and prolonged financial loss.

The applicant City sought judicial review of an arbitration award that found it breached its duty to accommodate a disabled employee.

The employee, who could only work part-time, had been permitted to remain in the full-time bargaining unit for years, receiving better benefits.

The City eventually transferred him to the part-time unit.

The arbitrator held this transfer was discriminatory absent a change in circumstances or undue hardship.

The Divisional Court granted the judicial review, finding the arbitrator's decision unreasonable and inconsistent with the Court of Appeal's ruling in Orillia Hospital, which established that requiring work in exchange for compensation is a bona fide occupational requirement.

The arbitration award was quashed and the grievance dismissed.

The City of Toronto sought judicial review of an arbitrator's decision that reduced the City's recovery of fraudulently obtained health benefits from a former employee by 50%.

The Divisional Court quashed the arbitrator's decision, finding a denial of procedural fairness because the arbitrator rejected the application of the collective agreement's overpayment provision without giving the parties notice or an opportunity to make submissions.

The Court also found the arbitrator's decision unreasonable, as she erred in finding concurrent jurisdiction with the courts and misapplied the Negligence Act to reduce the recovery based on the employee's theoretical right to seek contribution from a co-fraudster.

The appellant police officer appealed a Hearing Officer's decision convicting her of misconduct for allegedly using unnecessary force by kicking a handcuffed suspect.

The Ontario Civilian Police Commission reviewed the evidence and found that the Hearing Officer failed to make a definitive finding on whether the appellant actually kicked the suspect as alleged in the Statement of Particulars.

Concluding that the evidence did not meet the required standard of clear and convincing proof, the Commission revoked the Hearing Officer's decision and dismissed the charge.

During a grievance arbitration concerning the discharge of a correctional officer for alleged excessive force, the employer sought to call a Ministry employee as an expert witness on use of force.

The union objected to the expert providing an opinion on the specific facts of the case, arguing that the tribunal did not need expert assistance and that the proposed expert lacked impartiality due to his employment and prior assistance to the Crown at the grievor's criminal trial.

The arbitrator ruled the expert evidence admissible, applying the Mohan and WBLI tests.

The arbitrator found that the technical aspects of use of force in a correctional facility met the necessity criterion, and that the expert's employment and prior involvement went to the weight of the evidence rather than its admissibility, as there was no evidence he was unwilling or unable to discharge his duty to be independent and impartial.

The union grieved the discharge of a correctional officer who was terminated for using excessive force against an inmate during a strip search.

The incident, captured on video, showed the inmate tossing his sweater toward the grievor, who reacted by punching the inmate in the back of the head and taking him to the ground.

The arbitrator found that the inmate posed no threat and that the grievor's use of force was unnecessary, unlawful, and contrary to his training.

Given the grievor's short service, failure to take responsibility, and the serious nature of the misconduct, the grievance was dismissed and the discharge upheld.

The Association grieved the Employer's unilateral decision to cancel all compressed work week (CWW) arrangements across the Provincial Highways Management Division.

The Employer argued that operational requirements necessitated the change to ensure staff availability.

The Grievance Settlement Board found that the Employer's blanket prohibition failed to consider the long-standing practice of CWWs, lacked evidence of specific operational difficulties, and failed to assess individual employee circumstances.

The Board concluded the Employer's assessment of operational requirements was arbitrary and unreasonable, violating the collective agreement.

The grievance was allowed.

The employer proposed to call an expert witness to provide opinion evidence on whether the grievor, a correctional officer, complied with use of force regulations and policies during an incident with an inmate.

The union brought a motion to exclude the portion of the expert's evidence relating directly to the application of force by the grievor.

The Grievance Settlement Board ruled that the expert opinion evidence is admissible and denied the union's motion.

The Union filed grievances on behalf of two long-service employees who were denied approval for the Transition Exit Initiative (TEI) under Appendix 46 of the collective agreement.

The Employer denied the requests because the grievors' local office was under complement, meaning their departure would not result in cost savings or prevent layoffs.

The Union argued that the Employer's discretion was fettered by the seniority provisions in Appendix 46, requiring TEI requests to be considered on a bargaining-unit-wide basis.

The Grievance Settlement Board dismissed the grievances, finding that the collective agreement granted the Employer broad discretion to approve TEI requests based on operational needs and whether the exit supported the transformation of the Ontario Public Service, without being strictly bound by seniority at the approval stage.

During a grievance arbitration concerning workplace harassment, the complainant's health and composure deteriorated significantly during cross-examination.

The employer brought a motion to adjourn the proceedings pending an Independent Medical Examination (IME) to determine the complainant's capacity to continue.

The Vice-Chair adjourned the motion and directed the union to encourage the complainant to voluntarily participate in an IME, retaining jurisdiction to determine the details if the parties could not agree.

The union brought a motion arguing that the grievor's acquittal on criminal charges for assaulting an inmate was dispositive of his grievances regarding his dismissal and the employer's refusal to indemnify his legal fees.

The Grievance Settlement Board dismissed the motion, finding that an acquittal in a criminal trial is not binding on civil or arbitration proceedings due to the different standards of proof and purposes of the proceedings.

The applicant sought judicial review of a Grievance Settlement Board decision regarding the interpretation of a collective agreement.

The issue was whether the agreement provided for 100% reimbursement for a psychologist's report diagnosing the grievor's child with autism, or if it was subject to a cap for psychological services.

The Board had relied on a clause in a subsequent Implementation Agreement that neither party had made submissions on.

The Divisional Court found the Board's decision unreasonable because it relied on a paragraph that, in context, only applied to routine eye examinations and had no relevance to the psychological assessment at issue.

The Board's decision was quashed and remitted to a differently-constituted panel.

The moving parties sought leave to appeal to the Divisional Court from an interlocutory order dismissing their Rule 21 motion challenging the court’s jurisdiction over a wrongful dismissal claim brought by a probationary police officer.

The court considered the test under Rule 62.02(4) of the Rules of Civil Procedure, which requires either a conflicting decision or a reason to doubt the correctness of the order combined with issues of sufficient importance.

The court found a conflicting decision concerning whether disputes involving probationary police officers fall within the exclusive jurisdiction of labour arbitrators or police disciplinary regimes.

Given the potential conflict and broader importance for labour law and police discipline frameworks, leave to appeal was granted.

The Association filed a grievance alleging the employer failed to directly assign or provide bumping opportunities to a surplussed employee.

The employer raised a preliminary objection, arguing the employee waived all such rights when he elected the pension bridging option to retire under Surplus Factor 80.

The Grievance Settlement Board held that the collective agreement provisions for Surplus Factor 80 and pension bridging were independent.

The employee had no rights to direct assignment or bumping during the notice period because he utilized pension bridging.

However, based on the specific communications and the employer's failure to confirm pension eligibility as required, the employee did not knowingly waive his rights to direct assignment and bumping during the pre-notice period.

The preliminary objection was upheld in part.

The union filed a grievance alleging the employer violated the collective agreement by asserting that Schedule D of Appendix 18 applied to its Request for Proposal (RFP) for desktop and field services.

The employer intended to issue an RFP to external service providers for functions currently performed by bargaining unit employees.

The employer placed the transfer under Schedule D, arguing that less than eleven full-time bargaining unit related jobs would be created in any one municipality by the receiving organization.

The union argued that the total number of jobs across all municipalities or including support staff would exceed the threshold.

The Grievance Settlement Board accepted the employer's analysis that at most ten positions would be created in Toronto, and dismissed the grievance, finding the placement on Schedule D was appropriate.

During an arbitration concerning the termination of a Probation & Parole Officer, the Employer brought a motion to exclude the testimony of a police officer whom the Union intended to call as a witness.

The Employer argued the evidence was not relevant, cogent, or helpful.

The Vice-Chair dismissed the Employer's motion, finding that the anticipated testimony was at least arguably relevant, and allowed the Union to call the witness.

In a grievance arbitration regarding the denial of long term disability benefits, the employer sought a blanket exclusion of the complainant's oral evidence, arguing the matter should be determined solely on the documentary record reviewed by the Joint Benefits Committee.

The Vice-Chair rejected the employer's argument for a blanket prohibition, noting the broad discretion to adopt appropriate procedures under the collective agreement and the Crown Employees Collective Bargaining Act.

However, to balance fairness and expedition, the Vice-Chair directed the union to provide a detailed statement of the complainant's expected evidence before making a final ruling on whether oral testimony would be necessary.

During a grievance proceeding, the Union requested the production of the Family Responsibility Office's Case Management System (FCMS) records for a client involved in an incident.

The Grievance Settlement Board ordered the Ministry to produce the requested records, subject to conditions including restricting the timeframe, redacting all personal information as defined by the Freedom of Information and Protection of Privacy Act, and limiting the use of the records solely to the proceeding.