Five more sleeps until Santa comes…

According to the latest applications report from the Alberta Labour Relations Board, the Mount Royal Faculty Association has applied to review (i.e., appeal) the arbitration decision concerning the remedy for Dr. Widdowson’s grievances. Arbitrator Jones ruled in July of this year that the University was not justified in terminating Dr. Widdowson. The November decision concerned remedy after Arbitrator Jones ruled that reinstatement was not appropriate. The decision on remedy, which is the one under appeal, can be found here: Board of Governors of Mount Royal University v Mount Royal Faculty Association, 2024 CanLII 119283 (AB GAA)

Over at the Alberta Labour Relations Board, the panel considers whether certain employees of TransED perform managerial or confidential duties that would preclude them from being part of a bargaining unit in this certification application. The Board reviews the test for determining whether an employee has management functions as well as whether these particular employees should be caught by an existing collective agreement for a different trade union. The Board ultimately finds that the employees are not working in a managerial or confidential capacity nor are they caught by the existing collective agreement: Amalgamated Transit Union, Local No. 569 v TransEd O&M Partners General Partnership, 2024 ALRB 125

The Court of King’s Bench released reasons dismissing a judicial review of a decision of the Red Deer Catholic Separate School Division that found the Applicant in breach of sanctions issued by the School Division. The first decision upheld the sanctions imposed on the Applicant by the School Division after she had posted a distasteful meme. The Court of King’s Bench upheld the decision of the School Division finding that the Applicant breached those sanctions and disqualified the Applicant from a position on the school board: LaGrange v Red Deer Catholic Separate School Division, 2024 ABKB 751

The British Columbia Supreme Court considers an application by a plaintiff for production of her employment file and the investigation report related to allegations of a breach of the employer’s drug and alcohol policy. The court determines that the investigation report is not privileged and could be produced but declines to order production because the harm to the whistleblowers who would be exposed if the report were produced outweighed the probative value of providing the report to the plaintiff: Starrs v Troczynski, 2024 BCSC 2267

The complainant was dismissed after returning from maternity leave. The employee’s right to reinstatement following leave, provisions of the Canadian Human Rights Act, and various provisions of the Canada Labour Code and subsequent amendments all played into the complex analysis. The adjudicator dismissed the complainant’s unjust dismissal complaint because of a provision in the Canada Labour Code at the time which prohibited the adjudicator from considering such a complaint when the dismissal was due to a lack of work or discontinuance of a function. The adjudicator’s decision was upheld on judicial review by the Federal Court. However, the Federal Court of Appeal set aside the decision of the Federal Court and remitted the case to a different adjudicator to be determined in accordance with the reasons of the Federal Court of Appeal concerning the section of the Code in question: Giffen v. TM Mobility Inc., 2024 FCA 213

An appeal of an OHS order must be commenced within 30 days. The time starts to run from when the respondent was served with or given notice of the Order. In this case, the date on which the Order was emailed to the respondent was considered the date of service. The fact the respondent did not see the email until sometime later was not determinative (the respondent found the email sometime later, unread, in the “deleted” folder) and a subsequent extension of a compliance date did not restart the clock for the purpose of an appeal: Sysco Canada, Inc. v Occupational Health and Safety, 2024 ABOHSAB 23

The Ontario Superior Court of Justice granted an application striking the Amended Statement of Claim in a mass tort action brought by 473 plaintiffs against multiple defendants alleging they were suspended and eventually terminated from their jobs in health care for refusing to get vaccinated against Covid-19. Pleadings were struck, with leave to amend in accordance with the Court’s reasons, for want of jurisdiction, abuse of process and failing to disclose a reasonable cause of action: Dorceus v. Ontario et al., 2024 ONSC 7087

The Supreme Court of Canada denied leave to appeal in Croke v. VuPoint System Ltd., 2024 ONCA 354: Alan Croke v. VuPoint System Ltd., 2024 CanLII 125008

The Alberta Human Rights Tribunal dismissed a complaint alleging that the employer discriminated against the complainant on the basis of disability for not granting a medical exemption from a COVID vaccination requirement. The complainant alleged that she suffered an electrolyte imbalance after receipt of the first part of a Covid-19 vaccination. The Tribunal found the electrolyte imbalance failed to satisfy the third step of the Moore test because there was a lack of evidence her electrolyte imbalance is contraindicated for the COVID-19 vaccination beyond a passing comment by one of the doctors who testified in the case. Expert evidence presented by the respondent showed there was no connection. The complainant’s argument that absence of evidence is not evidence of absence was rejected as it would reverse the onus and require the respondent to prove the complainant’s theory was incorrect: Land v Canadian Natural Resources Limited, 2024 AHRC 146

The Ontario Court of Appeal has dismissed the appeal in Dufualt. The panel declined to revisit Waksdale and the appeal was decided solely on the basis that the “for cause” termination clause violated the Employment Standards Act, and specifically declined to comment at all on the “without cause” termination clause (which is exactly how most of us figured the case would be resolved): Dufault v. Ignace (Township), 2024 ONCA 915

The Alberta Human Rights Tribunal has not, to date, considered what constitutes the protected characteristic of “religious belief” to establish prima facie discrimination in the context of COVID-19 except in the case of requests for review of a Director’s decision to dismiss a complaint. In the first decision of its kind in Alberta, the Tribunal examines this question and found an employee who drafted a letter in support of his beliefs based on a template he found online at a “novaxxever” website and on Facebook from a “Reverend” who prepared such letters without meeting the person in question was not proof of a sincerely held religious belief sufficient to demonstrate prima facie discrimination: Lepage v Bosa Development Corp., 2024 AHRC 152

The Director’s decision to dismiss a complaint was overturned upon review and directed to proceed to a Tribunal hearing based, at least in part, on audio recordings of conversations between the complainant and members of management made without knowledge of the employer: Desta v Schnitzer Steel Canada Ltd. o/a Pick-N-Pull, 2024 AHRC 142