Labor & Employment Law

TTC declared essential service

Posted on March 31, 2011
No huge surprise here. The Ontario government passed Bill 150 declaring the Toronto Transit Commission an essential service and banning its workers from striking. Lines were drawn before the legislation was passed, but the rhetoric has heated up (TTC declared essential service, union chief says won?t be ?bullied? by Toronto)...

Ontario Ministry of Labour Announces Safety Blitzes

Posted on March 20, 2011
The Ontario Ministry of Labour announced its 2011-2012 safety blitz schedule. According to the Ministry website: The Ministry of Labour?s proactive inspection blitzes on sector-specific hazards are designed to raise awareness and increase compliance with health and safety legislation...

Just Cause... Yes ... But ...

Posted on March 19, 2011
While just cause is tough to prove (as you'd expect it to be given that it has been descrived as the "capital punishment" of employment law), it's by no means impossible to prove, despite what some might suggest. A case in point is the recent Oosterbosch v...

All Words Have a Meaning (at arbitration and everywhere)

Posted on March 15, 2011
Arbitrators get their jurisdiction from the collective agreement between the Union and employer, and their task is to interprete the words negotiated by the parties. There is a presumption that in construing a collective agreement, all of the words used were intended to have some meaning...

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Human Rights Tribunal is Not a Panacea for Workplace Disputes

Posted on March 05, 2011
So says the Human Rights Tribunal itself in Reid v. Molson Coors Canada which involved a Summary Hearing. According to the Tribunal: The summary hearing process is outlined in Rule 19A of the Tribunal?s Rules of Procedure. In a summary hearing, the issue is whether the Application should be dismissed...

The Complex Matter of Medical Information

Posted on February 21, 2011
Dan Muchaluk has a post on Ontario Arbitrator Says Employers Entitled to More Than a Bare Medical Certification in which he discussed the recent award of Arbitrator Sudykowski in Providence Care, Mental Health Services. The Union argued that Arbitrator Surdykowski "got it wrong" in his earlier award in Hamilton Health...

Bardal Factors Revisited

Posted on February 19, 2011
The Supreme Court of Canada in Keays v. Honda Canada emphasized that the approach for determining the period of reasonable notice laid down in Bardal v. The Globe and Mail was appropriate and to be favoured. Bardal establishes that the appropriate notice period, in any given case, is to be...

Advancing Human Rights Claims in Court

Posted on January 30, 2011
Mr. Justice Echlin in the recent case of Anderson v. Tasco Distributors (January 10, 2011) considered a motion to strike out certain paragraphs of a statement of claim dealing with the duty to accommodate. The main basis for the motion was that the Court was without jurisdiction to hear a...

Divisional Court Overturns Human Rights Tribunal Decision

Posted on January 29, 2011
While it's a generalization, it's tough to overturn on judicial review a decision of an administrative tribunal. That said, it's not impossible to do so as demonstrated by the case of Audmax Inc. v. Ontario Human Rights Tribunal (January 18, 2011, Ont...

Leave to Appeal Granted in Overtime Case

Posted on January 23, 2011
According to FP Legal Post CIBC tellers win right to appeal overtime class action. In 2009 Justice Lax refused to certify a class and this decision was upheld by the Divisional Court in a 2-1 split decision. It's not surprising that leave was granted and won't be surprising if the...

Counting the "regularly employed" under the Ontario OHSA

Posted on January 19, 2011
The Ontario Court of Appeal yesterday released an important decision interpreting the Ontario Occupational Health and Safety Act. The case, Ontario (Labour) v. United Independent Operators Limited considered whether independent contractors are to be counted when determining whether an employer must establish and maintain a joint health and safety committee...

Costs in Labour Arbitration

Posted on January 18, 2011
One party seeking its costs in labour arbitration under a collective agreement is a rare occurrence. That's not to say that it doesn't happen, it just doesn't happen all that often. The general rule was succinctly stated in the leading text by Brown & Beatty Canadian Labour Arbitration (4th) at...

What's a prima facie case of discrimination?

Posted on January 09, 2011
The Ontario Human Rights Tribunal recently considered when an applicant in a human rights case has shown a prima facie case of discrimination on a prohibited ground under the Human Rights Code. The case is Race v. General Motors of Canada: Race v. Canadian Auto Workers...

Technology and Union Organizing

Posted on January 05, 2011
The Word on Employment Law draws our attention to the subject of technology and union organizing (Union Uses Blog to Organize Manufacturing Plant). Not surprisingly, these organizing techniques are being used with increased frequency. Have a read of Organizing 2...

Limitation Periods in Wrongful Dismissal Cases

Posted on January 04, 2011
The Ontario Superior Court provides a good overview of the Ontario Limitation Act in wrongful dismissal cases. Section 4 of the Act provides that: Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the...

One Year Limitation under the Ontario Human Rights Code

Posted on January 03, 2011
Another recent interim decision on the one year limitation under the Ontario Human Rights Code. Section 34 of the Code provides that: 34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an...

Privacy commissioner seeking leave to appeal personal email decision.

Posted on December 30, 2010
"When a government employee uses his workplace email address to send and receive personal emails completely unrelated to his work, are those emails subject to disclosure to members of the public who request them under freedom of information legislation?" That was the question that the Divisional Court recently addressed in...

Test for Reasonable Apprehension of Bias

Posted on December 20, 2010
The Ontario Human Rights Tribunal recently released a decision dealing with the complex (and uncomfortable) issue of reasonable apprehension of bias. The applicant in this case alleged that the Adjudicator should excuse herself from hearing a case on the basis of a reasonable apprehension of bias...

Watershed LLP is Hiring

Posted on December 09, 2010
We ?flicked the switch? on our firm 11 months ago and the time is right (probably a little past right actually) for us to hire. Construction of our new office is complete, we?ve moved in and we're looking to add an associate to our ranks. We set up our firm...

Congratulations to Mike Maslanka

Posted on December 08, 2010
My friend Mike Maslanka's blog Work Matters has been named to the American Bar Associations Blog 100 List. Mike's blog is simply excellent, thoughtful, varied in scope and tremendously well written. In fact, Mike writing style (along with Eugene Meehan's for the Canadian's out there) is one that, in my...

Sanctity of Contract in Employment Cases

Posted on November 30, 2010
Mr. Justice Little of the Ontario Superior Court of Justice started off his recent judgment in Van Mensel and Walpole Island First Nation with the following words: The sanctity of contract law has eroded over the last century, particularly in the field of employment law...

Algorithms in Employment Decision Making

Posted on November 27, 2010
I saw an article yesterday in the Globe called The algorithm method: Programming our lives away. According to the article: "Some companies now use algorithms to make decisions around hiring and firing. At Google, which boasts that ?almost every [personnel] decision is based on quantitative analysis,? engineers have developed an...

Releases in Human Rights Cases

Posted on November 25, 2010
The Ontario Human Rights Tribunal is spending considerable time hearing (and usually dismissing) cases where an employee brings and Application under the Human Rights Code after having signed a release. I've previously written about this. Here's a sampling of some of the more recent cases: Monteiro v...

Summary Judgment in Employment Cases

Posted on November 24, 2010
I've previously written about summary judgments in employment disputes here and here. Rule 20.04(2) of the Ontario Rules of Civil Procedure provides that: The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or...

Defining Strike Related Activity

Posted on November 11, 2010
The Ontario Labour Relations Board in the context of arranging a hearing into allegations that certain conduct amounts to an unlawful strike under the Ontario Labour Relations Act, 1995, discussed the "strike" provisions in the Act: Strikes are permitted only where there is no collective agreement in force, and the...

CN to judicially review Human Rights on Family Status Case

Posted on November 09, 2010
According to OHS Canada CN asks court for judicial review of decision finding that an employee had been discriminated against on the basis of family status. I discussed this issue and mentioned the three cases here. This case will be important to watch...

Costs Award at Arbitration - Not So Much

Posted on November 05, 2010
Can an arbitrator award costs against one or the other of the parties (the Union or Company)? Each party to a labour arbitration bears their own costs and then split of costs of arbitration. Such costs would include, for example, the arbitrator's fees and expenses associated with the hearing (for...

When Can a Union Discipline a Member for Accepting Non-Union Work (in Alberta)?

Posted on November 04, 2010
This is not something I spend a lot of time thinking about, but I came across a case out of the Alberta Court of Appeal that got me asking (myself) some questions. The case is Armstrong v. International Brotherhood of Boilermakers Local 146. It's fact specific and may not be...

Unionization Rates in Canada

Posted on November 02, 2010
Statistics Canada released a report on unionization rates in Canada: On average, just over 4.2 million employees belonged to a union in Canada during the first half of 2010, up 64,000 from the same period last year. Union membership rose at a slightly faster pace than total employment...

Work Reintegration Program on the way

Posted on November 02, 2010
The Workplace Safety and Insurance Board (WSIB) is making changes to its Labour Market Re-entry (LMR) and Return to Work (RTW) programs to "get better results for injured workers and employers". According to the Backgrounder: Later this year, the WSIB will begin delivering LMR case management services internally and will...

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