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The lawyers at Ryder Wright Blair & Holmes LLP have made significant contributions to the development of union side labour law. We have published important works and been counsel on ground breaking cases.

Examples of noteworthy contributions by members of RWBH include the following:

Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (Louis Grievance) [2014] O.G.S.B.A. No. 72 — Jane Letton was counsel for OPSEU where she successfully argued that the Employer’s failure to investigate allegations of racist comments and a racially motivated physical assault, which caused the grievor to become seriously ill, was a breach of the Employer’s obligation to make reasonable provisions for the safety and health of its employees.

British Columbia v. B.C.G.S.E.U. (Meiorin Grievance) [1999] 3 S.C.R. 3 — John Brewin was co-counsel on this Supreme Court of Canada accommodation case which provided an entirely new method of analysis for determining whether or not employees had been the subject of impermissible discrimination. The decision resulted in a significant expanding of human rights protections for employees.

OPSEU v. Ontario Agency for Health Protection and Promotion (Nagra grievance), [2013] O.L.A.A. No. 438 — Richard Blair successfully argued that an arbitrator’s jurisdiction to interpret and apply “employment related statutes” under Ontario’s Labour Relations Act extends to the Regulated Health Professions Act and the related statutes and regulations governing the Regulated Health Professions in Ontario.

OPSEU (Grievor) v. Ontario (Community Safety and Correctional Service) ON GSB 2013 CanLII 88096 — In this case an employee who was receiving accommodation due to mental health difference was subject to harassing and discriminatory comments with regard to his changes in his accommodation. Jane Letton successfully argued that the duty to accommodate requires the employer to take into account the employee’s mental health difference when communicating to the employee. The Employer’s failure to take his need for accommodation into account along with many of the comments made to the employee were found to be discriminatory and harassing on the basis of his mental health status contrary to the Ontario Human Rights Code and the collective agreement.

Brant (County) v. OPSEU, Local 256 2013 O.J. No. 4796 — At arbitration, Ed Holmes successfully argued that the Employer discriminated against the Grievor when it refused to accommodate him in the position of “third” in an ambulance as provided for under the collective agreement. The Arbitrator found that accommodating the Grievor in the position of “third” in an ambulance would not have created undue hardship. David Wright successfully argued the case at judicial review. The Employer argued that, although it had refused to accommodate the Grievor by allowing him to ride “third”, the arbitrator’s decision was unreasonable, because the Employer had provided other reasonable accommodation that met the requirements of the Human Rights Code. The Ontario Superior Court of Justice, Divisional Court dismissed the application, finding that the arbitrator’s decision flowed reasonably from the fact that the collective agreement represented the parties’ expressed agreement that riding “third” in an ambulance was an appropriate accommodation for a disabled paramedic. In a separate but concurring judgment, one member of the Court determined the arbitrator had also reasonably found that the employer’s conduct violated the Human Rights Code, within the framework of the collective agreement.

OPSEU (Tardiel) v. Ontario (Community Safety and Correctional Services) [2010] CanLII 81917 — This is one of a series of cases on which David Wright was counsel which address the receipt of racist hate mail by racialized correctional officers at the Toronto Jail and which developed a specialized expedited procedure which saw victims of racism able to achieve substantial remedies in an expedited way without being subjected to cross examination. In this particular decision the GSB awarded $25,000 in damages to compensate for the receipt of a series of letters and other racist acts.

Canadian Union of Public Employees v. Governing Council of the University of Toronto, [2012] OLRB Rep. January/February 175 — Richard Blair successfully argued before the Ontario Labour Relations Board that Post Doctoral Fellows at the University of Toronto are “employees” within the meaning of the Labour Relations Act. This decision is a significant step in the growing recognition of the right of persons in non—traditional employment to access collective bargaining, and a reaffirmation of the principle that a relationship does not lose its employment character merely by having an educational component. The decision highlights the continuing struggle of academic employees to gain proper recognition for the work they do in their academic institutions.

Ontario Public Service Employees Union v. Heritage Heights Retirement Home Inc. [2013] O.L.R.D. No. 4380 — Richard Blair successfully argued in an interim application before the Ontario Labour Relations Board that an employee engaged in organizing a union should be reinstated on an interim basis by the OLRB when the Employer discharged him on the basis of unproven allegations of resident abuse without interviewing the employee or following their own published investigation policy. The Board accepted that in these circumstances the balance of harm favoured the Union when the unproven allegations were weighed against the real and potential damage to the Union’s and employees’ interest in organizing the workplace.

Canadian Union of Public Employees Local 3902 v. the Governing Council of the University of Toronto (PeerScholar grievance) 181 L.A.C. (4th) 374 (D. Leighton, Arbitrator) — Richard Blair successfully argued that the use of more than 1500 psychology students to participate in an anonymized, web-based “peer evaluation” of the writing of other students, which formed part of the formal mark of students in the course, without pay was improper. The Arbitrator held that at the University, students performing marking are covered by the Collective Agreement even if they do so on a volunteer basis or for a pedagogical purpose, and even if the work is for few hours. Richard also successfully defended the Arbitrator’s decision on judicial review: RE: The Governing

Council of the University of Toronto, and Canadian Union of Public Employees, Local 3902,[2009] O.J. No. 2479 (Divisional Court) — The case underscored the longstanding protection by the Union at the University against pressuring students to perform bargaining unit work without remuneration.

OPSEU Local 740 v. Community Living Thunder Bay [2011] ONSC 802 (Can LII)— David Wright convinced the Divisional Court to, not just overturn an arbitrator’s decision where the arbitrator had upheld the dismissal of an employee for alleged abuse of a client for telling a client to “shut—up”, but to order the employee reinstated to her job.

Laurentian University v. Laurentian University Faculty Association [2010] CanLII 32256 (OLRB) — David Wright successfully argued that, in order to permit to effectively discharge its duties as exclusive bargaining agent a union is entitled to notice of, and copies of, all complaints filed by or against its members under an employer’s human rights policy pursuant to section 70 of the OLRA and that privacy legislation does not override this obligation.

OPSEU (Sammy et al) and the Ministry of Correctional Services [2001] O.G.S.B.A. No. 59 — in this groundbreaking decision, Ed Holmes was successful in obtaining an interim order that the employer had to continue to pay employees who had been suspended pending an investigation.

OPSEU (Union Grievance) and Ministry of Health (Trillium Drug Program) [2002] O.G.S.B.A. No. 12 — Richard Blair convinced the arbitrator that there is an implied collective agreement term protecting the work of the bargaining unit in the Ontario Public Service and that the government was therefore prevented from using employment agencies to staff government programs. This decision led to the Bargaining Unit Integrity project which has resulted in literally hundreds of employees being members of and protected by a union.

Yee v. Trent University [2010] O.J. No. 2697 (Div. Ct.) — David Wright successfully argued before the Divisional Court held that an individual employee did not have the power to launch a judicial review of arbitration decision which rejected her grievance respecting the denial of tenure.

Perth and Smith Falls District Hospital [2001] O.L.R.B. Rep. March/April 419 — David Wright was counsel in this leading case in the area of successor rights involving public services, in which the Ontario Labour Relations Board rejected an attempt by ambulance service operators to terminate the bargaining rights of unions upon the transfer of responsibility for land ambulance services.

OPSEU (Union Grievances) and Ministry of Community and Social Services [2005] 137 L.A.C. (4th) 1 — Richard Blair and David Wright were co-counsel and established that the government could only contract out work where it took the steps to ensure that the seniority of workers would be properly protected. As a result of failing to do so, the government was required to compensate each affected employee for the loss of the value of their seniority — at a cost of $1.2 million to the government.

OPSEU (Alcock) and Ministry of Public Safety and Security [2004] O.J. 5481 — David Wright and Ed Holmes convinced the Divisional Court that employers are not permitted to dramatically reduce the wages of disabled employees who are able to perform part, though not all, of their jobs.

OPSEU (Hyland) and Ministry of Public Safety and Security [2004] O.G.S.B.A. No. 1 — This is one of a series of decisions protecting the rights of an employee who suffers from a susceptibility to second hand smoke. In this decision David Wright was successful in establishing that an employer has an obligation to accommodate an employee by moving the employee to a new workplace when it cannot properly accommodate the employee at his home site.

McMaster University v. McMaster University Academic Librarians Association — [2013] CanLII 16648 (ON LA) — In this case David Wright convinced the arbitrator that service to the Union is to be counted as service to the University for the purpose of determining entitlement to merit pay.

Ontario Shores Mental Health Centre v. OPSEU [2011] ONSC 6115 and 2010 CanLII 32826 (ON LA) — John Brewin successfully argued before the arbitrator that the employer had to consider the individual circumstances of disabled employees and could not issue blanket notices of layoff to employees on disability leave. The Divisional Court, with David Wright acting as counsel, upheld the arbitrators decision.

Entourage Technology Solutions v. CEP (Nicholson) [2004] O.L.A.A. No. 876 — Alick Ryder was counsel on this case in which the Company was ordered to accommodate a disabled employee who could perform most, but not all of his job duties, by permitting the employee to return to work to perform those duties which were within his limitations.

OPSEU (Betsch) v. Ministry of Labour — [2012] CanLII 34668 (GSB) — David Wright was counsel in this case in which he GSB found that the protections against reprisals under section 50 in OHSA apply to Health & Safety inspectors acting in the course of their duties such that inspectors cannot be subjected to reprisals for enforcing the Act in a manner contrary to the wishes of the Ministry.

CEP Local 9 (Stuckless) and Precision Communication Services [2007] O.L.L.A. No. 193 and [2011] CanLII 7760 — David Wright was counsel in this case in which the arbitrator rejected the argument of the Company that an arbitrator had no jurisdiction to review the unilateral decision of the Company to eliminate benefits offered to retired employees and ruled that the Company had to continue to provide these benefits .

Ottawa Fertility Centre [2008] O.L.R.D. No. 35 and [2009] CanLII 80008 (ON SCDC) — David Wright was co—counsel on this case in which the OLRB, upheld by the Divisional Court, has provided a very expansive definition of “health service integration” under the Public Sector Labour Relations Transitions Act, thereby ensuring that the bargaining rights of unions and job security of employees will be protected in a wide range of program transfers in the health care sector.

Laurentian University Faculty Association (Social Work Teaching Load Reduction Policy Grievance) and Laurentian University [2006] O.L.A.A. No. 447 — in this decision involving a challenge to the University’s failure to properly reduce the teaching load for faculty, David Wright successfully convinced an arbitrator that, in the appropriate circumstances, an arbitrator has the power to require a university to hire additional full—time faculty members.

Fanshawe College v. OPSEU [2013] O.L.A.A. No. 109 — In this case, Chris Bryden successfully argued that a grievance alleging workplace bullying and harassment filed by a retired College Professor several months after she retired was filed in a timely manner and should be heard on its merits. Chris convinced a majority of the Board of Arbitration that having regard to all the circumstances, including the fact that the employer was fully aware of all the facts giving rise to the Professor’s complaints, the grievance had been filed on time and should be heard on its merits.

Waypoint Health v. OPSEU [2013] O.L.A.A. No. 109 — In this case, the arbitrator accepted Chris Bryden’s arguments and blocked the employer’s attempt to enlarge the scope of the evidence and arguments it could raise against a maintenance worker with severe osteoarthritis who was terminated for allegedly abusing sick leave and limited the evidence to the time period that was specifically cited in the letter of termination. The Grievor is now back at work.

The City of Hamilton v The Canadian Union of Public Employees , Local 5167 (Simon) October 30, 2012 — Ed Holmes was Counsel for CUPE, 5167. The Arbitrator determined that a laid off permanent full time employee who exercised her right to bump into a temporary full time position was entitled to a new set of layoff/recall/bumping rights when the temporary position came to an end.

City of Hamilton v The Canadian Union of Public Employees, Local 5167 (Fougere) October 17 and 20 2011. — Ed Holmes was Counsel for CUPE 5167. The Arbitrator determined that, although an employee while operating an Employer vehicle other than in the course of his employment who was involved in a motor vehicle accident resulting in his conviction for impaired driving, should be reinstated to his employment without compensation, seniority or benefits subject to adhering to a number of conditions as there was a clear nexus between the misconduct and the grievor’s admitted alcoholism.

Ontario Public Service Employees Union (Brosseau et al,Union) v The Crown in Right of Ontario (Ministry of Revenue and Ministry of Government Services), Grievance Settlement Board, November 8, 2011 — Ed Holmes was Counsel for OPSEU. The GSB ordered that the Assistant Deputy Minister, Ministry of Government Services comply with a previous order of the GSB to furnish the Union with disclosure of identified documents and also directed the ADM to attend a hearing at the GSB to show cause why he should not be punished for any failure to take all necessary steps to comply with the previous disclosure order.

Bell Canada v. Communications Energy and Parperworkers Union of Canada (Hopkins Grievance) [2003] C.L.A.D. No. 502 — Ed Holmes was Counsel for CEP. In dismissing the preliminary objections of the Employer the Arbitrator provides a good analysis with respect to not applying an overly technical interpretation to the wording of the grievance in stead preferring to recognize the true dispute between the parties and interpreting the grievance with that dispute in mind and rejecting the form of the grievance over substance of the grievance. The Arbitrator also determined that the Collective Agreement at issue anticipated that grievances could be filed in advance of an event given its specific language.

OPSEU (Perez) v. The Crown in Right of Ontario (Ministry of Community and Social Services) GSB#0622/01 — The Ministry purported to withdraw offers made to successful candidates in a major job competition. After the offers had been accepted the Ministry received a number of allegations of improprieties in the competition. The GSB (Vice Chair Abramsky) accepted John Brewin’s submission that Ministry couldn’t cancel the competition and rescind the accepted offers. All it could do was to delay implementation pending an investigation.

Publications

John Brewin is the Co—Author of Free Collective Bargaining: Human Right or Canadian Illusion, an analysis of the erosion of public sector bargaining rights in Canada. David Wright is the author of the articles Arbitrating Insured Benefits Disputes: The Aftermath of Pilon — A Union Perspective (Labour Arbitration Yearbook 1990—1991 Volume 1) and Violence in the Workplace — A Union Perspective (Labour Arbitration Yearbook: 2001—2002 Volume 1).