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  5. Sixteen Leading Cases To Remember
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  5. Sixteen Leading Cases To Remember

1. Weber

(Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.)) Where a collective agreement exists, virtually all matters that arise in the employment context are subject to the grievance procedure and employees are not entitled to sue their employer in court. This often also covers co-workers.

2. Parry Sound

(Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 (S.C.C.))

The substantive rights and obligations of human rights legislation are deemed to be incorporated into each collective agreement over which an arbitrator has jurisdiction. Under a collective agreement, the broad rights of an employer to manage the enterprise and direct the work force are subject not only to the express provisions of the collective agreement, but also to statutory provisions of human rights legislation and other employment-related statutes.

3. Hoogendoorn and Bradley

(Hoogendoorn v. Greening Metal Products & Screening Equipment Co., [1968] S.C.R. 30 (S.C.C.)); (Bradley v. Ottawa (City) [1967] O.J. No. 1017; (1967), 63 D.L.R. (2d) 376 (Ont. C.A.))

Where the union is taking an action against an employee (e.g. having them discharged for failing to pay union dues), that employee has a right to notice of the arbitration proceeding and has the right to participate. Also where the union is pursuing a grievance on a job posting on behalf of a grievor who was not awarded the job, the incumbent employee is entitled to notice of the arbitration proceeding and has the right to participate.

4. Leisureworld / James Bay

(S.E.I.U., Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469 (Ont. Div. Ct.)); (James Bay General Hospital v. Public Service Alliance of Canada [2004] O.J. No. 4666 (Ont. Div. Ct); (2004), L.A.C. (4th) 12 (Ont. Div. Ct.), affg 126 L.A.C. (4th) 1 (Devlin)) An Arbitrator in Ontario can extend time limits in the grievance procedure but does not have the right to extend the time limit on referral to arbitration where that step is not part of the grievance procedure.

5. Browne v. Dunn

(Browne v. Dunn (1863), 6 R. 67 (H of L) [adopted in Peters v. Perras (1909), 42 S.C.R. 244 (S.C.C.)) If you are going to contradict the testimony of a witness, you must put that contradictory evidence to the witness and give the witness an opportunity to comment upon the apparent contradiction.

6. KVP

(Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co. (1965), 16 L.A.C. 73 (Robinson)) The Union can grieve Employer policies not contained in the collective agreement. An Arbitrator has the power to strike down the policy (and any discipline under it) if it fails to meet the following criteria:

  • it cannot change negotiated terms of the collective agreement without the union’s consent
  • it must be consistent with the collective agreement
  • it must not be unreasonable
  • it must be clear
  • it must be brought to the attention of everyone if it is to be acted on
  • it must be consistently enforced.

7. Wm. Scott

(Wm. Scott & Co., [1977] 1 C.L.R.B.R. 1 (P.C. Weiler)) Arbitrators must address two issues in a discipline case. 1) Did the employer have cause to discipline the grievor and 2) is the penalty selected appropriate. Then, if both conditions are met, the Arbitrator still has the power to assess the fairness of the particular penalty imposed. If an Arbitrator finds that the penalty chosen by the employer was not just and reasonable in all the circumstances, s/he will substitute one that is unless the collective agreement stipulates a specific penalty for the infraction.

8. Aerocide

(Aerocide Dispensers Ltd. v. United Steelworkers of American (Walker Grievance) (1965), 15 L.A.C. 416 (Laskin))

Employers should not be allowed to alter or enlarge the grounds originally given to support discipline or discharge.

9. Blouin Drywall

(Blouin Drywall Contractors Ltd. v. C.J.A., Local 2486 (1975), 8 O.R. (2d) 103 (O.C.A.))

Grievances should be construed liberally to get at the real issue in dispute. Unions can grieve a breach of the collective agreement even where the beneficiaries are not bargaining unit members (e.g. retirees).

10. Steel Equipment

(United Steelworkers of America, Local 3257 v. Steel Equipment Co. (1964), 14 L.A.C. 356) (Reville) Where an arbitration board has the power to mitigate the penalty imposed on a grievor, the board should take into consideration in arriving at its decision the following factors:

i. The previous good record of the grievor
ii. The long service of the grievoriii. Whether or not the offence was an isolated incident in the employment history of the grievor
iv. Provocation
v. Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated
vi. Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances
vii. Evidence that the employer rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination
viii. Circumstances negativing intent, e.g., likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it
ix. The seriousness of the offence in terms of employer policy and employer obligations
x. Any other circumstances which the board should properly take into consideration, e.g., (a) failure of the grievor to apologize and settle the matter after being given an opportunity to do so; (b) where a grievor was discharged for improper driving of employer equipment and the employer, for the first time, issued rules governing the conduct of drivers after the discharge, this was held to be a mitigating circumstance; (c) failure of the employer to permit the grievor to explain or deny the alleged offence

11. CBC

(Canadian Broadcasting Corp. v. C.U.P.E. (Sgrignvoli Grievance) (1979), 23 L.A.C. (2d) 227 (Arthurs)) Summarizes the factors considered in breach of trust cases. It is also applicable to other similar discipline cases. Such factors include:

i. bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of;
ii. the grievor’s inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act;
iii. the impulsive or non-premeditated nature of the act
iv. the relatively trivial nature of the harm done;
v. the frank acknowledgement of his misconduct by the grievor;
vi. the existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality;
vii. the past record of the grievor;
viii. the grievous future prospects for likely good behaviour, and
ix. the economic impact of discharge in view of the grievor’s age, personal circumstances, etc. But these factors, while helpful, are not components of a mathematical equation whose computation will yield an easy solution. Rather, they are but special circumstances of general considerations which bear upon the employee’s future prospects for acceptable behaviour, which is the essence of the whole corrective approach to discipline. How well or badly the grievor had behaved in the past is some indication of his likely future behaviour. How aggravated or trivial was the offence is some clue to the risks the employer is being asked to run if the grievor is reinstated in employment. And how seriously the discharge will affect the grievor is at least one (but not the only) measure of whether a reasonable balance is struck between the other two considerations – age, personal circumstances, etc.

12. John Bertram

(John Bertram & Sons Co. Ltd., (1967), 18 L.A.C. 362 (Weiler))

If an article in a collective agreement is ambiguous, an arbitrator may use the conduct of the parties as an aid to clarifying the ambiguity. This is often referred to as past practice. In order to be persuasive, the arbitrator requires that:

  • One party has engaged in conduct clearly based  on one interpretation/meaning
  • Other party has accepted/acquiesced
  • Gone on for some time without objection.

If this has gone on, the arbitrator is justified in attributing this particular meaning to the ambiguous article.

13. CN/CP Telecommunications

Canadian National Railway Co. v. Beatty (1981), 128 D.L.R. (3d) 236 , 11 A.C.W.S. (2d) 505, 1981 CLB 769 (Ont. Div. Ct.), and cases referred to therein, affg (2009), 4 L.A.C. (3d) 205

Arbitrators have the power to apply the doctrine of estoppel. In order to prevent a party from relying on the strict language of the collective agreement, that party must show:

i. a clear and unequivocal representation by words or conduct (in some circumstances silence or acquiescence)
ii. intended to be relied on by the other party
iii. reliance in the form of some action or inaction
iv. detriment resulting from that reliance

14. Toronto District School Board

Toronto District School Board and Canadian Union of Public Employees (2002), 109 L.A.C. (4th) 20 (Shime). Prior to arbitration, a party may request that the other side disclose and produce all documents that are arguably relevant. This is a step that can assist parties to prepare and present their case, refine the issues, facilitate settlement, and make the process fair. Arbitration by ambush is not condoned. If documents that are requested are not produced, the arbitrator may refuse to allow the party who possesses such a document to use it at arbitration.

15. Monarch Foods

Monarch Foods (1978) 20 L.A.C. (2nd) 419 (M.Picher) Workers do not lose their right to privacy and integrity of the person when they become employees of an employer. Employers do not have a common law right to search an employee or subject an employee to a physical examination without consent. There is no inherent management right to subject an employee to what would otherwise be a trespass or an assault upon the person. Normally, where an employment relationship is governed by a collective agreement, the authority of an employer to require an employee to submit to a medical examination must be either expressed or implied in the collective agreement.

16. Irving Pulp & Paper / Imperial Oil / CN Rail

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. (2013) S.C.J. No. 34; Imperial Oil Ltd. and C.E.P. Local 900 (2006), 157 L.A.C. (4th) 225 (“Nanticoke”); Canadian National Railway Co. and C.A.W. Canada (2000), 95 L.A.C. (4th) 341 (M. Picher).

Employers cannot subject all employees to mandatory, random and unannounced drug and alcohol testing. Employers may order drug and/ or alcohol testing of a specific employee in a workplace that can be classified as a dangerous work environment if 1) there are reasonable grounds to believe that the employee was impaired while on duty; 2) the employee was directly involved in a workplace accident or a significant incident; or 3) as part of a rehabilitative program upon a worker’s return to work following treatment for substance abuse.

Revised: July, 2014

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