On June 17, 2022, Arbitrator Nairn held in FCA Canada Inc. v Unifor, Locals 195, 444, 1285 that a two-dose mandatory vaccination policy (Policy) implemented by an employer was no longer reasonable going forward due to the evolving scientific evidence regarding the COVID-19 virus. In so finding, she cited a number of pre-print scientific studies…
Publication Name: Case In Point
Class Action Brought by Off-Reserve Indigenous Children and Their Families Certified
In Stonechild v. Canada, Justice Phelan of the Federal Court recently certified a class proceeding brought on behalf of off-reserve Indigenous children and their families. Under the Federal Court system, this avoids the necessity or prospect of up to thirteen separate provincial and territorial class actions. The claim seeks to hold the government of Canada…
Ontario Court of Appeal Upholds Human Rights Tribunal Decision Concerning Gender Discrimination in Compensation Practices for Ontario Midwives
In Ontario (Health) v. Association of Ontario Midwives, the Ontario Court of Appeal dismissed an appeal by the Ministry of Health and Long-Term Care (Ministry), upholding the finding of the Human Rights Tribunal of Ontario (Tribunal) that the Ministry engaged in gender discrimination in compensation setting practices for midwives. In this Case in Point,…
Arbitrator Finds Grievor was Prima Facie Discriminated Against when Employer Denied her Requested Exemption to the COVID-19 Vaccine
In Public Health Sudbury & Districts v. Ontario Nurses’ Association, Arbitrator Robert Herman accepted that an employee may be entitled to an exemption from an employer’s mandatory COVID-19 vaccination policy on the basis of creed where they held a sincere belief that the relationship between the COVID-19 vaccines and fetal cell lines was contrary to…
Ontario Court of Appeal Upholds Waksdale – Overturns Superior Court Decision That Attempted to Distinguish It
On June 8, 2022, in Rahman v. Cannon Design Architecture Inc., the Court of Appeal reiterated that Waksdale is supreme in Ontario. The Decision Below In September 2021, a judge of the Superior Court determined on the facts of the case before him that a contractual provision in an employment agreement which denied entitlements upon…
Appellate Court Finds Non-Competition Clause in Employment Agreement to be Unenforceable
In M & P Drug Mart Inc. v Norton, the Ontario Court of Appeal upheld the decision of an application judge which had found a non-competition clause in an employment agreement to be ambiguous and overly broad, and therefore unenforceable. Background In 2014, Mr. Norton, with the assistance of legal counsel, entered into an employment…
IDEL Regulation and Constructive Dismissal at Common Law: Appellate Court Finds Analytical Errors “Tainted” Lower Court Decision, Does Not Rule on Substantive Issue
On May 12, 2022, the Ontario Court of Appeal rendered its highly anticipated decision in the appeal of Taylor v Hanley Hospitality Inc. The lower court had considered the interaction between the Infectious Disease Emergency Leave Regulation(O. Reg. 228/20 or IDEL Regulation) made under the Employment Standards Act, 2000 (ESA) and a claim for constructive…
Ontario Court Requires “Robust” Notice to Allow Class Members to Choose Whether to Opt-Out of Employment Class Action
Justice Perell, writing for the Ontario Superior Court of Justice in the ongoing Heller v. Uber class action, required a robust Notice Plan and Notice of Certification to be provided that clearly sets out sufficient information to allow class members to make an informed decision about whether or not to exercise their right to opt-out…
Arbitrator Upholds Mandatory Vaccination Policy—Reduced Public Health Measures of No Consequence
In a “bottom line” decision in Extendicare Lynde Creek Retirement Home and United Food & Commercial Workers Canada, Local 175, Arbitrator Raymond upheld the mandatory COVID-19 Immunization Policy (Policy) of a retirement home, finding that the Policy is a reasonable workplace rule and consistent with the collective agreement, the Occupational Health and Safety Act, the…
HRTO Finds Availability of Different Remedies under a Different Proceeding not Determinative of Whether Substance of HRTO Application had been Appropriately Dealt With
In Green v National Steel Car Ltd., the Human Rights Tribunal Ontario (HRTO) found that the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has the direct authority to apply the Human Rights Code (Code) and to determine the appropriate accommodation of medical restrictions. The application before the HRTO on the same issue, therefore, had been…