Steven M. Barrett

The Ontario Human Rights Commission appealed a Board of Inquiry decision dismissing complaints against Ford Motor Company and a union alleging constructive discrimination based on religion.

The complainants, adherents of the Worldwide Church of God, sought to be excused from Friday night shifts to observe the Sabbath.

The Board found that accommodating the complainants would cause undue hardship to Ford due to high absenteeism, quality, and safety concerns, and to the union due to significant interference with the seniority rights of other workers.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable and supported by the evidence.

The applicant judges' association sought judicial review of the Ontario government's decision to reject the pension recommendations of the Fourth Triennial Remuneration Commission.

The government had retained independent actuaries to cost the recommendations before rejecting them.

The Divisional Court held that the actuarial affidavits were admissible, as the government was entitled to seek expert advice to justify its decision.

The court found that the government was not required to return to the Commission before making its decision, and that its rejection of the recommendations met the constitutional standard of simple rationality.

The appellant unions appealed an order dismissing their motion to vary an earlier order that appointed an interim receiver for Royal Oak Mines Inc. The original order explicitly directed the interim receiver not to make contributions to any employee pension plan without court authority.

The unions argued this was illegal as it undermined the collective agreement.

The Court of Appeal dismissed the appeal, finding that the interim receiver was not the employer and had no funds to pay the benefits, and that the court had jurisdiction under s. 47(2) of the Bankruptcy and Insolvency Act to make the order.

The court also rejected the unions' claim that the interim receiver was liable for termination pay under the Employment Standards Act.

EGALE Canada Inc. moved for intervenor status as an added party in an application brought by same-sex couples seeking marriage licences.

The Attorney General of Canada opposed the motion.

The court granted EGALE intervenor status under Rule 13.01 of the Rules of Civil Procedure, finding that EGALE had a direct interest in the subject matter and could make a useful contribution by providing a different perspective from the applicants, specifically regarding relationship options and national context.

To prevent undue delay and prejudice, the court imposed strict conditions on EGALE's participation, limiting its evidence and cross-examination to its unique perspectives.

On an appeal from the dismissal of an application for judicial review, the court held that ministerial discretion under the Hospital Labour Disputes Arbitration Act remains reviewable for compliance with natural justice even where no Charter breach is pleaded.

The Minister's abandonment of the long-standing practice of selecting mutually acceptable labour arbitrators from the roster, and unilateral appointment of retired judges to chair compulsory hospital interest arbitrations, created a reasonable apprehension of bias and the appearance of interference with institutional independence and impartiality.

The court emphasized the essential-services context, the government's financial interest in the outcome, the labour-specific expertise required, and the lack of tenure and security for retired judges as ad hoc appointees.

The Minister also failed to meet the unions' legitimate expectations arising from representations that the existing appointment system would continue.

The appeal was allowed, declarations were granted, and the Minister was prohibited from making appointments outside the roster unless the appointee was mutually acceptable to the parties.

The grievor, a former Cabinet Office employee, was surplussed and laid off prior to the enactment of Bill 7, which excluded Cabinet Office employees from the Crown Employees Collective Bargaining Act.

He was subsequently recalled to a lower-classified position and sought assignment to a vacancy under article 18.8.1(h) of the collective agreement.

The employer denied the assignment, arguing Bill 7 removed him from the bargaining unit.

The Grievance Settlement Board held that the grievor's rights under article 18.8.1(h) vested when he was surplussed, prior to Bill 7.

Applying the presumption against interference with vested rights, the Board found Bill 7 did not deprive the grievor of his entitlement and ordered the employer to assess his qualifications for the vacancy.

The appellants challenged amendments to Bill 160 that removed principals and vice-principals from teacher bargaining units, excluded them from the provincial labour relations regime, and ended their statutory membership in teachers' organizations.

They argued the amendments were a reprisal for participation in a province-wide protest against education reform legislation and therefore infringed freedom of expression and freedom of association under ss. 2(b) and 2(d) of the Charter.

The court held that the appellants failed to prove, on a balance of probabilities, that the legislative purpose was punitive rather than corrective, and further held that exclusion from a statutory collective bargaining scheme and removal of mandatory statutory union membership did not violate s. 2(d).

The appeal was dismissed with costs.

The grievor, an unclassified employee on a one-year contract, was terminated for performance deficiencies with two weeks' pay in lieu of notice.

The union grieved the termination, alleging discharge without just cause.

The employer raised a preliminary objection, arguing the Board lacked jurisdiction because it had exercised its right under the collective agreement to terminate an unclassified employee with notice.

The Board dismissed the preliminary objection, finding that a termination for performance reasons constitutes a discharge, which is subject to the just cause protection in the collective agreement, rather than a mere termination with notice.

The Association of Law Officers of the Crown (ALOC) applied for certification to represent a bargaining unit of articling students employed by the provincial government.

The Ontario Public Service Employees Union (OPSEU), which already represented the students, intervened and challenged ALOC's status as a trade union.

The majority of the Board dismissed the application, finding that under section 1(3)(a) of the Labour Relations Act, 1995, lawyers are not considered employees.

Consequently, ALOC, being comprised of lawyers, was not an 'organization of employees' and therefore lacked trade union status.

The Vice-Chair dissented, arguing that Crown lawyers are employees under the Crown Employees Collective Bargaining Act, 1993, and that ALOC retained its previously recognized trade union status.

The applicants, OPSEU and AMAPCEO, challenged the employer's determination that several positions within the Ontario Financing Authority (OFA) were excluded from their respective bargaining units under the amended Crown Employees Collective Bargaining Act (CECBA).

The employer argued that the positions were excluded under paragraph 14 of section 1.1(3) of CECBA, which excludes persons involved in borrowing, investing, or managing the assets and liabilities of the Consolidated Revenue Fund, or providing necessary support services.

The Ontario Labour Relations Board found it had jurisdiction to determine the employee status.

The Board held that Customer Service Representatives at the Province of Ontario Savings Office (POSO) were not excluded because they did not make financial commitments or decisions.

However, the Board found that the Manager of Administrative Services, Financial Officer - Swaps, Project Manager (Capital Markets Programmer), and Bank Funding & Fiscal Agency Supervisor were excluded as they either managed assets and liabilities or provided specialized services necessary to those activities.

The appellants were former employees of a bankrupt shoe retailer.

Following the bankruptcy, the employees' employment was terminated.

The Ministry of Labour filed a proof of claim for termination and severance pay under the Employment Standards Act, which the Trustee disallowed on the basis that bankruptcy does not constitute termination 'by an employer'.

The Supreme Court of Canada allowed the appeal, holding that the words of an Act must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The Court found that interpreting the ESA to exclude bankrupt employers would lead to absurd results and defeat the remedial purpose of the legislation.

The applicant union sought interim relief to prevent the exclusion of certain employees from the Crown Employees Collective Bargaining Act pending a decision on the merits.

The Board held that while section 98 of the Labour Relations Act, 1995 limits interim orders to procedural matters, section 16.1 of the Statutory Powers Procedure Act grants the Board a broader, general power to make interim orders related to its jurisdiction, which prevails due to the override provision in section 32 of the SPPA.

However, the Board declined to grant interim relief in this case, primarily because the applicant was unwilling to proceed expeditiously with a hearing on the merits.

A public interest group sought standing to challenge the constitutionality of amendments to the Immigration Act, 1976, which altered the refugee determination process.

The Supreme Court of Canada held that while the group raised serious issues of invalidity and had a genuine interest, it failed the third branch of the public interest standing test.

The Court found that individual refugee claimants directly affected by the legislation could and were already challenging the provisions, meaning there was another reasonable and effective way to bring the issue before the courts.

Consequently, the appeal was dismissed and the cross-appeal to strike the claim was allowed.

A group of university professors and a librarian challenged mandatory retirement policies at age 65 and the exclusion of those over 65 from employment discrimination protection under provincial human rights legislation.

The majority held that universities were not part of government for Charter purposes under s. 32, so their retirement policies were not directly subject to Charter review.

The Court further held that the statutory exclusion of workers aged 65 and over from protection against age discrimination infringed s. 15(1), but was justified under s. 1 in light of the legislature's cautious approach to complex labour market, pension, and workplace-organization concerns.

The appeal was dismissed, with dissenting judges finding the Charter applicable to universities and rejecting the statutory justification.

In an application for certification, a group of employees sought to raise allegations of impropriety regarding the union's collection of membership evidence.

The allegations were not filed by the terminal date as required by the Board's Rules of Procedure.

The Board found that the employees failed to comply with the rules for timely filing.

However, because the Board decided to conduct its own inquiry into a separate 'non-pay' allegation involving a membership card, a further hearing was required anyway.

Since entertaining the late allegations would not cause any significant additional delay, the Board exercised its discretion to allow the employees to introduce evidence of the alleged improprieties at the upcoming hearing.

The Globe and Mail decided to contract out its Ontario highway delivery runs and lay off its drivers to save costs.

The union alleged that the contracting out to independent carriers constituted a sale of a business or that the entities were related employers under the Labour Relations Act.

The union also alleged unfair labour practices when the Globe refused to award delivery contracts to four laid-off employees after the union indicated it might assert they remained employees.

The Ontario Labour Relations Board dismissed the applications, finding no sale of a business or related employer relationship, as the Globe merely transferred a like function to independent contractors.

The Board declined to grant remedial relief for the alleged unfair labour practices, noting the Globe's actions were a response to the union's late assertion of rights that would have undermined the legitimate business decision to contract out.

In an application for certification involving seven branch offices of National Trust, the Ontario Labour Relations Board determined whether certain employees exercised managerial functions under section 1(3)(b) of the Labour Relations Act.

The Board examined the duties of seven Assistant Branch Managers/Administration Officers, finding that four exercised managerial functions and were excluded from the bargaining unit, while three did not and were included.

The Board also determined that Administration Officer Trainees did not exercise managerial functions but were excluded from the bargaining unit on community of interest grounds.

Finally, the Board ruled that the original panel was not seized with the remaining issues in the proceeding.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding whether he had the authority to appoint a conciliation officer at the request of Local 206.

The employer argued that Local 206 had ceased to exist or was no longer a trade union due to a merger with Local 175.

The Board found that Local 206 had not surrendered its charter, continued to exist as an unincorporated association, and retained its status as a trade union under the Labour Relations Act.

Therefore, the Board advised the Minister that he had the authority to appoint a conciliation officer.

The applicant trade union sought a related employer declaration under section 1(4) of the Labour Relations Act against three construction companies.

The respondents raised a preliminary objection that section 1(4) violates the guarantee of freedom of association under section 2(d) of the Charter.

The Board dismissed the constitutional challenge, finding that section 1(4) protects rather than infringes freedom of association by preserving existing bargaining rights.

On the merits, the Board applied the Walters Lithographing criteria and found that the three companies carried on associated or related activities under common control or direction.

The Board declared the companies bound by the collective agreement and ordered remedies for unfair labour practices.

The applicant union applied for certification of employees at seven of the respondent's bank branches in Metropolitan Toronto.

The union requested that the seven branches be consolidated into a single bargaining unit, while the employer argued that the only appropriate units were either individual branches or a single unit of all 37 branches in Metropolitan Toronto.

The Board reviewed the jurisprudence on bargaining unit appropriateness and fragmentation.

The Board concluded that the seven branches shared a sufficiently coherent community of interest to bargain together on a viable basis without causing serious labour relations problems for the employer.

The Board consolidated the seven branches into a single bargaining unit but maintained its practice of separating part-time and full-time employees.