Stephen A. McArthur

The applicants sought judicial review of two decisions by the Ontario Labour Relations Board regarding the layoff of a foreman.

The Board had determined that the employer violated the collective agreement by laying off the foreman without regard to seniority rights.

Applying the reasonableness standard of review, the Divisional Court found that the Board's interpretation of the collective agreement was transparent, intelligible, and justified.

The application for judicial review was dismissed.

The applicant, a laundry room worker, alleged that she was subjected to verbal abuse and differential treatment by her supervisor because of her race and colour.

The Tribunal dismissed the application, finding the applicant's evidence to be inconsistent, lacking in detail, and not credible.

The Tribunal accepted the respondents' evidence that the alleged abuse did not occur and that the applicant was replaced after failing to report for scheduled shifts.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision certifying a union as the exclusive bargaining agent for a construction industry bargaining unit.

The core issue was whether two employees performed construction industry work on the application date.

The Divisional Court found the Board's conclusion that disconnecting a pump for off-site repair constituted construction work 'at the site' to be unreasonable.

However, the Court upheld the Board's finding that replacing a thermal sensor constituted repair work, as it was a reasonable, fact-driven conclusion owed deference.

Consequently, the application for judicial review was dismissed.

The applicant employer sought judicial review of an arbitrator's decision regarding the interpretation of a collective agreement governing shift assignments for transit operators.

The arbitrator had found that the employer's method of assigning work on the spare board violated the agreement, interpreting provisions related to vacant shifts and wind down operators.

The Divisional Court applied the reasonableness standard of review and dismissed the application.

The court found the arbitrator's interpretation of the collective agreement, including her reliance on past practice to resolve an ambiguity, to be defensible and reasonable.

The City of Hamilton sought judicial review of two arbitration awards regarding bus driver scheduling and seniority.

The union brought a motion to quash the application for judicial review, alleging bad faith, undue delay, and abuse of process.

The City brought a cross-motion to stay the arbitrator's decisions pending the judicial review.

A single judge of the Divisional Court dismissed both motions, finding that the issues, including the admissibility of affidavit evidence, were better left to be determined by the full panel of the Divisional Court scheduled to hear the application.

The plaintiff sued for wrongful dismissal after being terminated without cause.

The parties had agreed to the essential terms of employment in May 2007.

After the plaintiff started working, the defendant presented a document containing a termination clause limiting notice to the minimums under the Employment Standards Act, 2000.

The court held that the termination clause was null and void because the defendant provided no new consideration for the amendment to the existing oral contract.

The plaintiff was awarded damages based on a reasonable notice period of 3.9 months.

The defendant brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike a paragraph of the plaintiff’s amended statement of claim alleging intentional infliction of mental suffering arising from a false accusation of theft in the employment context.

The defendant argued the pleading failed to disclose a reasonable cause of action under the elements established by the Court of Appeal for the tort of intentional infliction of mental suffering.

The court held that, at the pleadings stage, the alleged factual matrix—including a false accusation of criminal conduct against a long‑term employee—could potentially satisfy the requirement of flagrant or outrageous conduct calculated to cause harm resulting in a visible and provable illness.

Accepting the pleaded facts as true, the court found it was not plain and obvious the claim would fail.

The motion to strike was therefore dismissed.

The appellants appealed a wrongful dismissal judgment, arguing the respondent failed to mitigate his damages by refusing an oral offer of re-employment and missing a job interview.

The Court of Appeal upheld the trial judge's findings that the respondent's request for a written offer and legal advice was reasonable, and his overall mitigation efforts were diligent.

The court also declined to interfere with the 22-month notice period and the trial costs award.

The appeal was dismissed.

The applicant filed a human rights application alleging racial harassment and reprisal in employment.

A hearing was scheduled and notice was delivered to the applicant.

The applicant failed to attend the hearing and did not contact the Tribunal.

Consequently, the application was dismissed as abandoned.

The moving party brought a motion before a single judge of the Divisional Court to dismiss the responding party's judicial review application on the ground of delay.

The motions judge dismissed the motion, holding that while a single judge has jurisdiction to dismiss for delay in clear cases, the equitable and discretionary nature of judicial review generally requires that the issue of delay be determined by the full panel hearing the application on its merits.

The dismissal was without prejudice to the moving party's right to raise the delay argument before the panel.

The applicant employer successfully sought judicial review of an arbitrator's decision, resulting in the reinstatement of the grievor's employment termination.

The parties agreed the applicant was entitled to partial indemnity costs, leaving only the quantum to be determined.

The court assessed the claimed fees and disbursements, reducing the fees to $10,000 and disbursements to $2,535, noting the complexity of the proceeding and the reasonable expectations of the unsuccessful party under Rule 57.01(1).

The applicant filed a human rights application alleging discrimination in employment.

The respondents raised a preliminary issue, arguing that the Tribunal lacked jurisdiction because the corporate respondent, which provides a live dealer internet gaming experience, is a federally regulated enterprise engaged in telecommunications.

The Tribunal agreed, finding that the corporate respondent's business of providing online gambling services via the internet falls within the exclusive jurisdiction of the Parliament of Canada.

The application was dismissed for lack of jurisdiction.

The applicant filed a human rights application alleging discrimination in employment on the basis of sex and reprisal.

The respondents requested that the application be dismissed for lack of jurisdiction, arguing that the corporate respondent's business, which involves inter-provincial truck and rail transportation, is a federally regulated undertaking.

The Tribunal found that the corporate respondent is engaged in transportation works extending beyond the limits of the province, placing it within federal jurisdiction under s. 92(10)(a) of the Constitution Act, 1867.

The application was dismissed for lack of jurisdiction.

The applicant employer sought judicial review of a labour arbitrator's decision to reinstate a bus driver who was terminated after a rear-end collision.

The arbitrator found the driver was careless but held the collective agreement required 'flagrant' carelessness to justify automatic dismissal.

The Divisional Court held the arbitrator's interpretation was unreasonable and violated the clear wording of the collective agreement and s. 48(17) of the Labour Relations Act, 1995.

The arbitrator's decision was set aside and the termination was reinstated.

The applicant union sought a related employer declaration under section 1(4) and a sale of business declaration under section 69 of the Labour Relations Act, 1995, concerning Sobeys and several of its franchisees.

The franchisees acknowledged they were successors under section 69 and bound by the collective agreement.

The union argued that Sobeys exercised such extensive control over the franchisees, particularly Category 3 franchisees, that they should be considered a single employer.

The Board found that while Sobeys exercised significant financial control to protect its loans and maintain franchise standards, the franchisees operated as independent businesses with control over their own labour relations.

The Board declined to exercise its discretion to make a related employer declaration, noting the absence of anti-union animus and finding that the union's bargaining rights were not eroded by the franchise arrangements.

The section 1(4) application was dismissed, and the section 69 declaration was granted.

The applicants filed unfair labour practice complaints alleging the union breached its duty of fair representation and duty of fair referral under sections 74 and 75 of the Labour Relations Act.

One applicant alleged the union failed to pursue a grievance regarding his removal as a steward.

The Board found the union's interpretation of the collective agreement was reasonable and dismissed this claim.

Both applicants also alleged they were improperly bypassed on the hiring hall list since 1994.

The Board dismissed these claims due to a lack of specific pleadings regarding who was improperly assigned work and the untimeliness of the allegations.

The applicants, directors of a bankrupt employer, sought a review of Orders to Pay issued under the Employment Standards Act for unpaid wages.

The Ministry of Labour had paid compensation to most claimants under the Employee Wage Protection Program and was subrogated to their claims.

On consent of the parties, the adjudicator ordered that the Orders to Pay be reduced to $30,000, for which the three directors are jointly and severally liable.

The union brought an application under section 69 and subsection 1(4) of the Labour Relations Act, 1995, seeking a declaration that a sale of business occurred between Sobeys and several franchisees, or alternatively that they constitute one employer.

The responding parties moved to dismiss the subsection 1(4) application for failing to disclose a prima facie case.

The union moved for production of the actual franchise agreements.

The Board dismissed the motion to dismiss, finding the union established a prima facie case for relief under subsection 1(4) regarding the relationship between Sobeys and each franchisee.

The Board also granted the union's request for production, allowing union counsel to review the actual contracts subject to confidentiality conditions.

The union filed unfair labour practice complaints alleging the employer engaged in bad faith bargaining during a lengthy strike.

The employer refused to meet with the union for over three months despite repeated requests, citing picket line issues and production demands.

When the employer finally tabled a proposal, it contained significant concessions that undermined seniority and union protections.

The Board found the employer breached its duty to bargain in good faith by failing to meet and by tabling a proposal designed for rejection.

The Board directed the parties to return to bargaining forthwith.

The applicant trade union referred a construction industry grievance to the Board, alleging the responding employer violated the provincial collective agreement.

The employer argued the union had abandoned its bargaining rights obtained through a 1963 voluntary recognition agreement.

The Board found that the employer failed to rebut the presumption against abandonment, noting the employer's agreement that the union never intended to abandon its rights.

The Board declared the employer bound by the provincial collective agreement.