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In Toronto Board of Education, a case where an African Canadian worker alleged that he has been subjected to racism, unsafe working conditions, lack of training, lack of personal protective equipment, defective machinery and reprisal actions in contravention of section 50 of the OHSA, the Labour Board has refused to hear factual and opinion evidence about the health and safety effects of racism in the workplace and has deferred the case to the Ontario Human Rights Commission in keeping with Meridian.
The applicant in Toronto Board of Education(1997) OLRB Rep. May/June 541, has filed an application for reconsideration and a Notice of Constitutional Question in effect arguing that the OLRB exercised its discretion under subsection 50 (3) of the OHSA in a manner which denied him his right to equal protection and benefit of the law, contrary to section 15 (1) of the Charter of Rights and Freedoms.
This reconsideration hearing took place on Tuesday September 23, 1997 at 9:30 a.m., at 400 University Avenue, 6th Floor, Toronto, Ontario. The Ontario Labour Relations Board has released a decision in in Toronto Board of Education (1998) OLRB Rep. Jan/Feb. 104, dismissing the application for reconsideration on the basis that "racialized" complainants whose complaints are prinicpally about racial discrimination is not "similarly situated" as "other" "non-racialized" complainants. The Board then concluded that its exercise of discretion is not in violation of section 15 of the Charter of Rights and Freedoms or sections 1, 9, and 11 of the Ontario Human Rights Code.
On September 22, 2000, Justice Susan Lang of the Divisional Court heard a motion brought by the Toronto Board of Education and supported by the Ontario Labour Relations Board that the Application for Judicial Review by quashed on the basis of the 28 month delay in perfecting it. After hearing arguments on the motion Justice Lang dismissed the motion and reserved on cost to the panel which will hear the application on the merits. Toronto Board of Education [2000] O.J. No. 3913.
The hearing on the merits of the Application for Judicial Review took place on Thursday November 06, 2000, at 10 a.m. at the Divisional Court, Courtroom 3, 60 Queen Street West, Toronto and on November 10, 2000 the Divisional Court released its decision upholding the decision of the OLRB Toronto Board of Education [2000] O.J. No. 4314.
Application for Leave to Appeal to the Ontario Court of Appeal was dismissed Toronto Board of Education February 22, 2001, Justices George Finlayson, James Carthy, and Allan Austin
Mr. Pieters filed a human rights complaint. The Commission investigated his complaint and decided not to refer it to a Board of Inquiry for a full hearing. Mr. Pieters sought a reconsideration under s. 37 of the Code. At this meeting, in September 2001 the Commissioners present decided to uphold the original decision not to refer the complaint to a Board of Inquiry.
In the case Helen Lee v. Toronto Hydro, a case of an employee of Chinese origin who alleges that she has been subjected to racism and reprisal actions under section 50 of the OHSA, the Labour Board has directed her to "file written submissions showing cause why the Board should in this case not defer to the Commission in keeping with Meridian and Toronto Board of Education. The Board has released its decision dismissing this matter on the basis that it is not an appropriate case for the Board to deal with.In dismissing Ms. Lee's application, Vice-Chair Whitaker issued the following reasons:
Should the Board exercise its discretion to inquire into this matter where it would not otherwise, only because the Ontario Human Rights Commission has deferred to the arbitration process and the applicant has abondoned her attempts to proceed to arbitration? In my view it should not. It is difficult on any reading of the application, to see how the Commission could have concluded that the matter is dealt with more appropriately by arbitration, particularly when CUPE who had carriage of the grievances, had decided not to proceed with them at the time that the Commission dealt with the issue of deferral. Right or wrong, the Commission's decision in this regard is not binding on the Board. If the Board were to proceed with the present application on this point, it would in fact be permitting the Commission to decided how the discretion to inquire under section 50(3) of the OHSA should be exercised. In other words, the decision as to whether the Board should inquire or not, would be depended only upon whether the Commission would proceed with the complaint before it....For these reasons, the matter is dismissed.
Helen Lee's application for judicial review of the OHRC decision was dismissed by MacFarland J. See, Helen Lee v. Toronto Hydro
An application for leave to appeal in Lee, Helen Fung Man v. Ontario Leave Human Rights Commission et al, M26541 was heard in writing on January 15, 2001 before Justice George Finlayson, Justice Rosalie Abella and Justice Kathryn Feldman. The motion was dismissed with costs.
In a 27 page decision dated December 22, 1999, in the matter of Nicole Curling v. Alexander Torimiro, Katherine Laird, sitting as a Board of Inquiry, under the Human Rights Code, found “that Torimiro engaged in a course of conduct in respect to the complainant which included sexual touching and kissing and the persistent pursuit of a sexual relationship.”
The Board found that “Torimiro created a workplace atmosphere which was uncomfortable for the complainant by, for example, commenting frequently on her clothing and body; by making excessive demands on her to spend time with him at work and outside the office; by repeatedly discussing his own sexual relationships and those of Curling’s co-workers; and by asking her personal questions, including whether or not she was dating. (Decision No. 99-016, p. 18 - 19)
The Board also found that “Torimiro served Curling with a Statement of Claim seeking $1.5 million for damages to reputation arising out of this complaint and did so in a manner that was intended to intimidate her.” Further the Board found that Torimiro “made threatening statements in correspondence, which statements were intended to discourage Curling, and her witnesses, from participating in this hearing.” (Decision No. 99-016, p. 19).
Decisions and Rulings: Nicole Curling v. Alexander Torimiro Ontario Superior Court dated February 28, 2001| Nicole Curling v. Alexander Torimiro Board of Inquiry decision dated October 03, 2000| Nicole Curling v. Alexander Torimiro Board of Inquiry decision dated May 19, 2000 | Nicole Curling v. Alexander Torimiro Board of Inquiry decision dated September 30, 1999| Nicole Curling v. Alexander Torimiro Board of Inquiry decision dated December 22, 1999 |
On October 20th, 1996 the Ontario Labour Relations Board ruled in Au v. Lindhurst Hospital, that sexual harassment can constitute a hazard under the Occupational Health and Safety Act, for the purposes of a s. 50(1) application where there was reprisal against an employee for seeking enforcement of the Act.
Pauline Au's case was completed on February 03, 1996 and a decision in this matter has now been rendered. It has been established that Ms. Au was subjected to sexual harassment in the workplace. However, a nexus between her dismissal and the claims of sexual harassment was not established. The Board dismissed Au's complaint on the basis that her dismissal by the employer was not motivated by a anti-health and safety animus.
In another case, Patricia Musty v. Meridian Magnesium Products Limited, brought by Patricia Musty against her employer, the Ontario Labour Relations Board declined to enquire into Musty's complaint of sexual harassment and deferred the matter to the Ontario Human Rights Commission (as Ms. Musty had filed a complaint on similiar facts before the OHRC). This case is now the subject of a Judicial Review Application
The Ontario Human Rights Commission has requested the Minister of Citizenship to appoint a Board of Inquiry, under the Ontario Human Rights Code, to inquire into Ms. Musty complaint against several management respondents and her employer, Meridian Magnesium Products Limited of Strathroy, Ontario. A Constutional Challenge of section 41 of the Ontario Human Rights Code was argued on January 8, 1998. Board Chair Mary Ann McKeller ruled on February 11, 1998 that while the Board has the jurisdiction to consider the constitutional question - the fact that the Board's decision will be judicially reviewed in any event gives her the discretion not to consider the merits of the constitutial question leaving it to the courts to decide whether or not the Complainant can succeed in her constitutional challenge. The parties in Patricia Musty v. Meridian Magnesium Products Limited case at the Board of Inquiry has now entered into a settlement - which terminates this proceeding.
In Irene Frank v. Sammon & Channer Men's Clothing Ltd, an employee alleging that she has been subjected to sexual harassment, excessive noise level, defective equipment and reprisal actions under section 50 of the OHSA, the Labour Board has dismissed all aspects of her reprisal claim on the basis of sexual harassment. The Labour Board has, however, decided to inquire into her allegations of excessive noise and defective machinery and has directed her and the employer to file written submissions and documents in support of their respective positions.
In the case of Margaret Chan v. Ontario Hydro the Ontario Labour Relations Board has refused to look into her complaint alleging harassment and reprisal actions in violation of the OHSA on the basis that the employer and Chan's bargaining unit are engaged in greviance arbitration process. The Labour Board stated that it will not look into Chan's allegations until the position of the employer and the Union is made clear to the Board. The Union and the Employer has settled Ms. Chan's grievance, without her participation in the settlement discussions. Having regard to this new development, the Legal Representative of Ms. Chan, and Counsel for Ontario Hydro requested that the Ontario Labour Relations Board rule on the outstanding issues remaining in the Chan case. On August 29, 1997, the Board dismissed Chan's application and in effect deferred it to the Commission in keeping with Meridian
Margaret Chan human rights complaint is now before a board of inquiry under the Human Rights Code.
The Bakery Workers' Union brought a motion to block the hearing on the merits and will seek to have the case referred to the Human Rights Commission. The Board has released its decision in this matter dismissing it on the basis that it is more appropriately before the OHRC. Vice-Chair Gail Misra stated in her decision that the Applicant's case is primarily about sexual harassment which she can take to the OHRC or launch a civil action in Ontario Court of Justice (General Division).
On the consent of the parties Mr. Simon hearing is adjourned sine die. Readers will be updated on new developments.
While in the case of Ruth Kidane v. Centro Donne Inc. where Ms. Kidane a counsellor in a health clinic alleged that excessie workload and/or work-related stress should be construed as a hazard under the OHSA. Ms. Kidane alleged that she was dismissed for engaging in a work refusal. The OLRB concluded that Ms. Kidane had no right to refuse to wrok under the OHSA and the the decision to terminate her employment was not motiated in any way by having engaged in work refusal. Board felt action of employer in this case was justifiable and did not modify the penalty.
On Thursday November 13, 1997, the Labour Board heard preliminary arguments from the Human Rights Commission seeking an order that Ms. Silveira-Griffiths case against the Human Rights Commission, alleging health and safety reprisals in her employment as a Human Rights Officer at the Toronto West Office, be dismissed on the basis of (1) delay in filing the application; (2) a lack of particulars; and (3) deferral to the Human Rights Commission as the applicant had already filed a complaint in that forum. The Ontario Labour Relations Board has reserved itself on a decision - and in due course will issue its decision in writing - subject to one caveat, the Board has indicated that it will not be necessary to issue a decision in this matter if the parties can negotiate a settlement before March 1998. The Parties in this case has agreed to a settlement.
Mike Naraine has won his complaint at a Board of Inquiry pursuant to the Ontario Human Rights Code but the employer refuse to reinstate Mike instead filing an appeal at the Divisional Court
Mike Naraine was employed by the Ford Motor Company for over nine years. During that time he was subjected to a racially poisoned work environment. Testimonial evidence before a Human Rights Board of Inquiry revealed that he was called paki or waki-paki, was isolated and was held in generally low esteem. In the later three years of his employment, Mr. Naraine was subject to progressive discipline, ultimately resulting him his termination for the alleged assault on a co-worker. The Ontario Human Rights Commission alleged that that both Mr. Naraine's behaviour and his treatment by the company was, in part, a product of the poisoned environment. The Board of Inquiry agreed, and order that the Company reinstatement and damages for Naraine.
The Divisional Court (O'Leary, Southey and Matlow) upheld its decision in this matter and Ford has filed a Motion for Leave to Appeal to the Ontario Court of Appeal. The Ontario Court of Appeal did grant leave on the following ground: "Did the Divisional Court err in failing to recognize the legal significance of the fact of the respondent's dismissal for cause because of an assault on a fellow employee?"
The hearing before the Ontario Court of Appeal, Osgoode Hall, 130 Queen Street West, has been completed and the decision is on reserve.
Ontario Superior Court of Justice Heard the Challenge against the Ontario Human Rights Commission use of section 34 of the Code on the Basis that it exercise of its discretion has a Racial discriminatory effect on African Canadian Human Rights Complainants.
On March 24, 2000, the court quashed two section 34 decisions of the Commission Ontario Human Rights Commission (OHRC), Trustee of Investigations (Rod Grainger), Keith Norton, Remy Beauregard, and Brian Eyolfson
Mr. McKinnon filed a complaint against the Ministry of the Solicitor General and Correctional Services for the following human rights violations:
A Board of Inquiry has recently concluded its hearings into this matter in Toronto and has released its decision on April 29, 1998. The Board has ruled in Mr. McKinnon's favor and has ordered the Ministry of the Solicitor General and Correctional Services and the personal respondents to pay general and special damages to Mr. McKinnon. The Board held that racial name-calling and graffiti should be recognized for their inherent destructive effect on racial equality in the workplace. The Board concluded that the respondent failed to take seriously or investigate the allegations of unfair treatment that were raised by the Mr. McKinnon. It further determined that there was sufficient evidence of direct supervisory involvement of, and knowledge of, the poisoned work environment to establish corporate liability. The Board also found that this was an appropriate case for findings of personal liability given the personal nature of the racial discrimination Mr. McKinnon also experienced.
A further hearing before the Board of Inquiry was held to deal with the issue of the Ministry's non-compliance with the Orders of the Board and a decision was rendered in favour of Mr. McKinnon.
The Ministry has filed an Application for Judicial Review in Divisional Court which was dismissed Decision of the Divisional Court
Readers will be regularly kept up to date on developments in these cases and the law on Occupational Health and Safety.
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This page was updated on June 16, 2002.
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