Susan Ursel

The complainants alleged that Ontario discriminated against them on the basis of sex and disability by de-listing sex reassignment surgery as an insured service under OHIP.

The Tribunal found that Gender Identity Disorder is a disability and that the de-listing had a disproportionate adverse impact on three of the complainants who had already begun their transition program at the CAMH Gender Identity Clinic.

The Tribunal ordered Ontario to fund the surgery for these three complainants as an interim remedy, finding that the grandparenting provision in the amending regulation was not a reasonable accommodation.

The Ontario Human Rights Commission brought a motion to compel the Respondent to produce certain documents over which the Respondent claimed solicitor-client privilege.

The Tribunal first determined that the Respondent's description of the documents was insufficient to establish privilege and ordered the documents to be produced for inspection by the Tribunal.

After inspecting the documents, the majority of the Tribunal found that legal advice privilege attached to some of the documents, as they were part of the continuum of communication between government officials and legal counsel regarding the de-listing of sex re-assignment surgery.

However, the Tribunal ordered the production of other documents or portions thereof where privilege was not established or had been waived.

A partial dissent would have ordered full production of two specific documents, finding that privilege had been waived.

The Ontario Public Service Employees Union (OPSEU) applied for certification to represent an 'all employee' bargaining unit at the Kingston Psychiatric Hospital (KPH) site of the newly created Providence Continuing Care Centre (PCCC).

OPSEU also applied under the Public Sector Labour Relations Transitions Act (PSLRTA) to determine the appropriate bargaining units following the amalgamation of KPH and St. Mary's of the Lake Hospital (SMOL).

The Board found that agreements entered into between PCCC and other unions under section 20(4) of the PSLRTA were valid and precluded the Board from reconfiguring those specific bargaining units.

However, the Board determined that the single 'all employee' bargaining unit sought by OPSEU for the KPH site was appropriate for collective bargaining.

The applicant union applied for certification of a bargaining unit consisting of professional and technical employees at the Ontario College of Nurses of Ontario.

The employer argued that an 'all employee' unit was appropriate.

The Board found that the proposed unit lacked distinctiveness, both in its criteria for inclusion and within the employer's organizational structure, as it cut across various departments and operational groups without a clear objective demarcation.

Consequently, the Board concluded that the proposed unit was not appropriate and directed the parties to advise on how the application should be disposed of.

The applicant brought an application under section 68 of the Employment Standards Act.

During the hearing, the applicant produced a lengthy summary of alleged harassment incidents that had not been previously disclosed to the employer.

The Board adjourned the hearing to allow the employer an opportunity to address the issues.

The Board also directed the applicant to provide an explanation regarding the relevance of a letter alleging operational failings by the employer, failing which references to the letter would be struck from the proceeding.

The applicant employee requested a review of an Employment Standards Officer's decision that he was not entitled to take Boxing Day as a statutory holiday.

The Officer found that the collective agreement provided a greater benefit respecting holidays than the Employment Standards Act.

The Ontario Labour Relations Board affirmed the Officer's decision, finding that the collective agreement's provision of nine defined holidays plus two floating holidays constituted a greater benefit than the eight statutory holidays provided under the Act, even though Boxing Day was not specifically included.

The applicant filed a reprisal complaint under section 50 of the Occupational Health and Safety Act, alleging her employment was terminated because she refused unsafe work.

The applicant had refused to print invoices, claiming that the stress caused by interpersonal conflicts with coworkers over the use of a shared printer endangered her health.

The Board dismissed the application, finding that stress from interpersonal conflict does not constitute a 'physical hazard' as required by section 43 of the Act.

Furthermore, the Board concluded that the applicant did not genuinely believe her health and safety were in danger, but rather used the work refusal to force the employer to resolve the printer situation.

The Northwest GTA Hospital Corporation applied under the Public Sector Labour Transition Act to resolve outstanding issues prior to ordering representation votes following a hospital amalgamation.

The Board determined the composition of office and clerical units, and declined to maintain separate bargaining units for stationary engineers and Etobicoke paraprofessionals, opting instead for broader service and paramedical/technical units to avoid undue fragmentation.

The Board also ordered the employer to provide the unions with employee names and addresses to facilitate access prior to the representation votes.

The applicant hospital, a successor hospital following an amalgamation, applied to the Ontario Labour Relations Board under the Public Sector Labour Relations Transition Act, 1997 for a determination of the number and descriptions of bargaining units.

The Board determined that there should be seven bargaining units spanning all three hospital sites.

The Board maintained separate units for stationary engineers, McLean House employees, office and clerical employees, and service employees, but combined part-time and full-time employees into single units for each category.

During a representation vote between OSSTF and CUPE, 13 segregated ballots remained uncounted.

OSSTF alleged that the parties had agreed not to count these ballots and that CUPE committed an unfair labour practice by contacting the segregated voters after the vote to ask how they voted, thereby breaching the secrecy of the ballot.

OSSTF sought a new vote or an order that the ballots not be counted.

The Board found no agreement existed to discount the ballots.

The Board also held that CUPE's post-vote inquiries, while perhaps unwise, did not violate the Labour Relations Act or compromise the integrity of the balloting process such that the voters should be disenfranchised.

The Board directed that the segregated ballots be counted.

The Pembroke Civic Hospital applied to the Ontario Labour Relations Board under section 69 of the Labour Relations Act, 1995, following a directive to close and transfer its operations to the Pembroke General Hospital.

The parties disputed the appropriate bargaining unit structure and the identity of the resulting bargaining agents for the intermingled employees.

The Board determined that the broader-based bargaining unit structure already in place at the surviving hospital (the General) was appropriate, noting its 25-year history of success and the general labour relations trend toward broader units.

The Board ordered a representation vote to allow employees to choose their bargaining agent from among all the affected trade unions.

Following the merger of two hospitals, the applicant hospital applied under section 69 of the Labour Relations Act, 1995, seeking a declaration that intermingling of employees had occurred and requesting the restructuring of multiple bargaining units into two units, along with representation votes.

The responding trade unions opposed the application, arguing that the transfer of employees did not constitute intermingling and that the hospital's actions were not bona fide.

The Ontario Labour Relations Board found that intermingling had occurred due to the integration of the hospitals and the regular movement of staff between sites, which caused significant operational and labour relations difficulties.

The Board exercised its discretion to combine the existing bargaining units into a paramedical unit and a service/clerical unit, and ordered representation votes to determine the bargaining agents for the newly structured units.

At the conclusion of evidence in a human rights complaint, an issue arose regarding the admissibility of certain non-government documents tendered by the complainant.

The respondent objected, arguing the documents contained untested allegations by interest groups.

The adjudicator admitted the documents as a matter of discretion, finding them akin to materials already admitted and leaving the determination of their weight for later submissions.

The complainant alleged that the Mayor of Hamilton discriminated against him based on sexual orientation by refusing to issue a proclamation for Gay and Lesbian Pride Week.

The Board of Inquiry found that a mayoral proclamation is a 'service' under the Human Rights Code, as it is generally perceived as a benefit to the groups seeking it.

The Board held that the Mayor's refusal, though purportedly motivated by a desire to protect the gay and lesbian community from homophobic backlash, was paternalistic and constituted discrimination.

The Board further found that the City of Hamilton was neither directly nor vicariously liable for the Mayor's actions, as issuing proclamations falls outside his statutory duties as Chief Executive Officer.

The Mayor was ordered to pay $5,000 in compensation for injury to dignity and to issue the proclamation if requested in 1995.

The respondents brought preliminary motions to adjourn the proceedings pending the Supreme Court of Canada's decision in Egan, to dismiss the complaints as moot, and to challenge the Board's jurisdiction to consider Charter issues.

The Board of Inquiry dismissed the motions.

The Board held that the hearing on the merits would proceed, but argument would be adjourned pending the Egan decision.

The Board found the complaints were not moot because the current provision of same-sex benefits was based on interim policy rather than legal obligation.

The Board also granted an amendment to broaden the scope of the Dwyer complaint and affirmed its jurisdiction to consider Charter issues in relation to the Human Rights Code.

The respondents, the Corporation of the City of Hamilton and Mayor Robert Morrow, brought preliminary motions to dismiss a human rights complaint alleging discrimination in the refusal to proclaim Gay and Lesbian Pride Week.

The City argued the Commission failed to attempt settlement with it and that it was not a proper party.

The Mayor argued the complaint was barred by the six-month limitation period in the Public Authorities Protection Act.

The Board of Inquiry dismissed all motions, finding that the Commission attempted settlement in good faith, that it was premature to dismiss the City as a party without a hearing, and that the complaint was filed within the limitation period.

The Electrical Power Systems Construction Association, Ontario Hydro, and Gilbert Steel Limited filed complaints against the Iron Workers Local 721 regarding an alleged unlawful strike arising from the rodmen's refusal to wear belly-hooks.

The union filed a cross-complaint under the Occupational Health and Safety Act, alleging the employer unlawfully penalized the rodmen for refusing unsafe work.

The Ontario Labour Relations Board dismissed the employer's applications, exercising its discretion not to grant relief since the work stoppage had ceased and damages could be pursued through grievance arbitration.

The Board also dismissed the union's health and safety complaint, finding that the rodmen's blanket refusal to wear the belly-hook—even when their assigned work did not require its use—was not based on a reasonable belief that merely wearing the equipment was likely to endanger themselves or others.

The applicant trade union applied for certification of a bargaining unit of construction labourers.

The intervener trade union, which already represented bricklayers' assistants employed by one of the related respondent employers, challenged the applicant's proposed bargaining unit description, arguing it improperly carved out a portion of the applicant's designated trade contrary to the province-wide bargaining scheme.

The Board held that the intervener had status to intervene.

The Board further held that it had jurisdiction under the Labour Relations Act to describe a bargaining unit that excludes a portion of a designated trade where those employees are already represented by another trade union, and that it was appropriate to do so in this case to preserve existing bargaining rights and avoid disenfranchising unrepresented employees.

The Labourers, Local 506 and the Bricklayers, Local 1 both brought applications under section 1(4) of the Labour Relations Act seeking declarations that several corporate entities constituted a common employer.

The Board found that the preconditions for a section 1(4) declaration were met for seven of the respondents.

However, the Board dismissed the Bricklayers' application due to unreasonable delay, as the union knew or ought to have known of the related employers for four years without asserting its bargaining rights.

The Board granted the Labourers' application, declaring the seven entities a common employer with respect to the Labourers, to prevent undue fragmentation and create a viable bargaining unit.

The applicant unions sought a related employer declaration under section 1(4) of the Labour Relations Act to bind Delform Construction Limited and Ilena Construction Limited to the provincial ICI agreement binding Hardrock Forming Company.

The Board found that Delform had an established collective bargaining relationship with Labourers' Local 183.

The Board dismissed the application, reasoning that issuing a related employer declaration would create a conflict with Local 183's established bargaining rights and precipitate a jurisdictional dispute.