Stephen Bernofsky

The applicant requested an order to amend her human rights complaint to specify remedies and add the grounds of age, race, and ethnic origin.

The Tribunal denied the request, noting that remedies do not require a formal amendment and that the applicant's submissions regarding the additional grounds failed to allege specific acts of discrimination by the respondent on those bases.

The applicant filed an Application alleging Contravention of Settlement.

The respondents failed to file a Response within the required 14 days after the applicant delivered the Application by e-mail to their apparent lawyer.

The Tribunal issued an Interim Decision directing that the Application and Decision be sent to the respondents by mail and courier, and granted the respondents 10 days to file a Response and explain the delay, failing which the Tribunal may proceed without further notice.

Following a successful appeal, the appellants sought costs of $42,000 and $15,000 to $22,500 respectively.

The respondents argued the claims were excessive.

The Divisional Court considered the complexity of the Human Rights Code issues and the unusual circumstance of the Tribunal accidentally losing the record, which increased preparation time.

However, noting the similarity of interests between the two appellants and the principle that costs must be fair and reasonable to the losing party, the court awarded costs on a partial indemnity scale of $10,000 to each appellant.

The appellant appealed a trial judgment regarding alleged breaches of non-solicitation and non-competition clauses, as well as misuse of confidential information.

The Court of Appeal dismissed the appeal, finding that the reasonable efforts clause in the addendum applied only to the non-solicitation clause, which was not breached.

Furthermore, the court held that the appellant had no proprietary interest in the allegedly confidential information and therefore could not assert a claim for its misuse.

In a human rights complaint alleging discrimination in employment, the Commission and the complainant moved to add two corporate respondents, Iswood Holdings Inc. and Keel Staff Enterprises Inc., after discovering that the original corporate respondent did not own all three franchise locations involved.

The adjudicator granted the motion, noting the companies were intermingled and the president of all three was aware of the misconception.

Subsequently, the respondents moved to dismiss the complaint against the individual respondent for lack of evidence.

The adjudicator dismissed this motion as premature, ruling that the respondent must either elect whether to call evidence or wait until all evidence is heard before bringing a motion for non-suit.

In a human rights complaint alleging discrimination in employment, the Commission and the complainant moved to add two corporate respondents who owned other franchise locations.

The adjudicator granted the motion, finding the respondents were aware of the misconception regarding ownership and the operations were intermingled.

The respondents also moved for a non-suit to dismiss the complaint against the individual respondent.

The adjudicator dismissed the motion without prejudice, requiring the respondents to elect whether to call evidence before a non-suit motion could be heard, as the tribunal needed to hear all evidence to determine his liability.

The applicants filed complaints alleging that their union breached its duty of fair representation under section 74 of the Labour Relations Act during their grievance arbitration.

The applicants claimed that union counsel was uncaring, incompetent, failed to call corroborating witnesses, and fell asleep during the hearing.

The Board dismissed the applications, finding that union counsel's strategic decisions, including not calling certain witnesses and not seeking judicial review of the arbitrator's award, were reasonable judgment calls.

The Board concluded that the union's conduct was not arbitrary, discriminatory, or in bad faith, and that the applicants received adequate representation.

The complainant, who was diagnosed as HIV-positive shortly after commencing employment, was denied long-term disability benefits due to a pre-existing condition exclusion clause in the employer's group insurance policy.

The clause excluded coverage for disabilities arising from conditions for which the employee received medical care during the 90-day probationary period.

The Board of Inquiry found that while the clause was prima facie discriminatory, it was saved by section 25(3)(a) of the Human Rights Code as a reasonable and bona fide distinction based on a pre-existing handicap that substantially increases risk.

The Board applied the Supreme Court's test from Zurich Insurance, concluding the clause was a sound and accepted insurance practice for small groups to prevent adverse selection, and that no practical alternative existed.

The applicant sought to terminate the respondent union's bargaining rights in the ICI sector of the construction industry.

The union argued that the applicant and other individuals supporting the application were not 'employees' in the bargaining unit because they were not members in good standing and were not hired through the union's hiring hall, in violation of the collective agreement.

The Board applied the April Waterproofing principle, finding that because the union had actively asserted its rights under the collective agreement by filing a grievance prior to the termination application, the continued employment of these individuals contravened the agreement.

Consequently, they were not considered employees in the bargaining unit for the purpose of the application, and the application was dismissed.

In an interim decision, the Board of Inquiry granted a motion on consent to add First North American Insurance Company as a respondent to the human rights complaint.

The added party was a wholly owned subsidiary of the respondent North American Life Assurance Company and was the actual contracting party with the complainant for the group benefits policy at issue.

The respondent insurance company brought a motion to restrict the evidence in a human rights complaint to the specific illness of the complainant (AIDS), arguing that evidence regarding the impact of an exclusion clause on persons with other disabilities was irrelevant and hypothetical.

The Board of Inquiry dismissed the motion, ruling that because the exclusion clause itself was alleged to be discriminatory, evidence of its broader impact was necessary and admissible to determine its validity.

The applicant employers' organization sought accreditation as the exclusive bargaining agent for employers in the sewers and watermains sector.

The Board previously issued certificates of accreditation despite unresolved questions regarding whether two specific employers should be included in the unit, finding that the applicant met the double majority test under s. 127(2) of the Labour Relations Act regardless of the outcome.

The Board issued reasons for this jurisdictional finding, drawing an analogy to certification cases where unresolved employee status issues do not affect the union's right to certification.

The parties subsequently agreed on the status of the two employers, and the Board finalized the lists of employers.

The Board also varied the accreditation orders and certificates on consent to correct an error and clarify potential ambiguity.

The applicants sought a declaration under section 58 of the Labour Relations Act that the respondent union no longer represented the employees, alleging that a supervisor was involved in the union's organizing drive and intimidated employees into signing membership cards.

The Board dismissed the application without an inquiry into the merits, finding that the allegations, even if true, did not constitute fraud within the meaning of section 58.

The Board noted that such allegations of employer involvement and intimidation could be filed under other sections of the Act, but would raise concerns of timeliness.

The complainant union alleged that the respondent employer discharged an employee contrary to the Labour Relations Act due to his union organizing activities.

The employee had a history of absenteeism and alcoholism but was discharged shortly after engaging in union campaigning and making a pro-union speech in the company cafeteria.

The Ontario Labour Relations Board applied the reverse onus under section 89(5) of the Act, requiring the employer to prove that the discharge was not tainted by anti-union animus.

The Board found the employer's explanation for delaying the discharge to consult with other managers unpersuasive and concluded the employer failed to discharge its burden of proof.

The Board ordered compensation but declined to order reinstatement as the employee had already accepted other employment prior to his discharge.

A dissenting member would have dismissed the complaint, finding ample just cause for the discharge independent of any union activity.

The applicant union filed a complaint alleging that the respondent employer effected an unlawful lock-out by closing its restaurant shortly after a certification application was filed and representation vote arrangements were made.

The Board found that while the closure involved a withholding of work opportunities, the union failed to prove the specific subjective intent required to constitute a lock-out—namely, the intention to preserve the employment relationship on different terms or to compel employees to refrain from exercising statutory rights.

As the necessary intent was not established, the complaint was dismissed.

During a hearing into an application for certification, the Board investigated allegations that the applicant union submitted membership evidence indicating employees had paid one dollar when they had not.

The Board found that one employee had not paid the dollar, rendering his card invalid.

However, the Board accepted the evidence of union officials over a conflicting witness regarding another card, concluding that the remaining membership documents were reliable despite procedural irregularities.

The matter was relisted for continuation.

The applicant sought to terminate the respondent union's bargaining rights.

Following a representation vote, the union alleged employer impropriety, including threats of plant closure and holding a barbecue, and sought to set aside the vote.

The Board held that the union was precluded from raising allegations closely connected to the vote itself because it had signed a waiver, and failed to exercise due diligence in raising earlier allegations.

On the merits, the Board found the union's witness lacked credibility, dismissed the allegations of threats, and found the barbecue did not constitute improper interference.

The Board declined to set aside the representation vote.

The union filed a complaint alleging the employer breached a written settlement of an earlier unfair labour practice complaint by failing to pay agreed-upon compensation to three reinstated employees.

The employer argued the settlement was void because the employees resigned shortly after returning to work, which contravened the employer's unexpressed expectation of stability.

The Ontario Labour Relations Board held that the clear, unambiguous terms of a written settlement cannot be repudiated based on unstated expectations or subsequent events not addressed in the agreement.

The Board directed the employer to pay the specified sums.