Labour and Employment Law Cases

The following are a selection of labour and employment law cases where either Christopher J. Foy or Peter Shklanka have represented clients:

Denny’s Temporary Foreign Workers’ Class Action 
(Herminia Vergara Dominguez v. Northland Properties Corporation doing business as Denny’s Restaurants, and Dencan Restaurants Inc.)

Herminia Vergara Dominguez v. Northland Properties Corporation doing business as Denny’s Restaurants, and Dencan Restaurants Inc. view case (pdf)

British Columbia Supreme Court – Certification Decision

In this class action certification decision, the first decision of its kind in Canada regarding temporary foreign workers, Madam Justice Fitzpatrick of the British Columbia Supreme Court has ruled that the case can move forward as a certified class action for breach of contract, unjust enrichment, breach of good faith and fair dealing, breach of fiduciary duty and for punitive damages with respect to Denny’s employees hired through the Canadian Temporary Foreign Worker Program.

In her 73 page decision, Madam Justice Fitzpatrick concludes:

“A class proceeding will substantially advance this litigation in terms of an overall resolution of the common issues which addresses the need for judicial economy in its approach. In addition, recognizing the vulnerable situation in which these temporary workers find themselves, a class proceeding will provide the access to justice that they require in an environment that will be of assistance to them. Finally, behaviour modification is no doubt required if these claims are ultimately proven. One allegation, that relating to the airfare issue, has already been conceded by the defendants and to that extent, the proceedings are promoting that objective in the preliminary stages. It bears repeating that the investigations by the Employment Standards Branch in late 2010 and early 2011 had little effect on the practices of the defendants regarding payment of overtime and despite efforts to ensure that overtime was being properly paid, further breaches were recorded which resulted in a Determination on June 17, 2011 with penalties.” at para. 263

It is hoped that this certification decision will pave the way for other groups of temporary foreign workers to effectively and economically enforce their rights in any other cases where employers may be taking advantage of their vulnerability.

Vancouver Island Health Authority  et al (BCLRB) view case (pdf)

This decision clarifies the question of whether casual employees can participate in a vote to change unions. The applicant union sought to have all casual employees who were covered by a collective agreement counted for the purpose of a representation vote. The incumbent union in the workplace wanted to prevent a number of casuals from having their votes counted. In addressing some divergent approaches in the case law, the BCLRB ruled that it generally will allow bona fide casual hires to vote if they have rights under a collective agreement and some minimal regularity of work. As a result, these casuals got to have a say in which union would represent them.

Yukon Teacher’s Association v. Government of the Yukon (Severance pay grievance) view case (pdf)

This is one of a small number of decisions in Canada which addresses the issue of how severance pay is calculated when someone retires in a temporary or “acting” position. At issue was whether persons employed in a temporary or acting capacity (for example, as a principal) are entitled to severance pay calculated on the higher salary rate, or on a lesser amount earned in the substantive or “home” position they previously occupied. The adjudicator accepted the argument of the YTA that the collective agreement language in this case required that severance pay be calculated to include both the base rate of pay and administrative or supervisory pay for performing, for example, principal duties. The adjudicator rejected the argument that there is a prevailing consensus that severance pay is a benefit related to an employee giving up rights associated with that employee’s substantive (or “home”) position only.

CAW, Local 2600 v. Port Transport Inc. view case (pdf)

In this decision the British Columbia Labour Relations Board upheld in the context of collective agreement negotiations the union’s right to disclosure of employee contact information in the possession of the employer, including any e-mail addresses, and information relating to terms and conditions of employment. The tribunal rejected the employer’s argument that the union first had to establish that it was unable to obtain the information on its own.

Grimm’s Fine Foods v. United Food and Commercial Workers Union, Local 247 view case (pdf)

In this decision, the Union retained Kestrel Workplace Legal Counsel LLP and Fiorillo Glavin Gordon to each represent one of two employees who had been terminated after engaging in a fist fight with one another. It is significant that the Union decided to have the termination grievances of both employees heard together by the same arbitrator at the same time saving considerable resources and expense. The Union was successful in having both employees reinstated with back wages and benefits.

Yukon Teachers’ Association v. Government of Yukon view case (pdf)

This decision by the Yukon Supreme Court provides interim reinstatement to a dismissed probationary teacher pending the outcome of the teacher’s appeal to the Deputy Minister of Education and grievance at the Yukon Teacher’s Labour Relations Board. The Deputy Minister of Education ultimately fully reinstated the teacher.  The Government of Yukon’s appeal to the Yukon Court of Appeal was dismissed as moot. view case (pdf)

Layfield Poly Films et al. view case (pdf)

The British Columbia Labour Relations Board reaffirms in the circumstances of this case that the successorship provisions of the Code do not apply to transfers within the same corporate framework: Acklands Limited, BCLRB No. 67/75. In cases such as this, where the Employer integrates two plants which are represented by separate bargaining agents, it is the Union with the certification at the consolidated plant that remains the bargaining agent.

CAW-Canada v. National Waste Services Inc. et al view case (pdf)

As a result of this decision the union successfully obtained a certificate from the labour board to represent waste disposal workers working in the city of Hamilton. This is the first decision of the labour board determining the issue of “who is the employer” in the context of amendments to the Ontario ESA governing agency employees. The labour board did not in this instance depart from the jurisprudential trend endorsed by the Supreme Court of Canada in City of Pointe-Claire.

Utilities Kingston v. IBEW, Local 636 and Deborah Leighton view case (pdf)

In this judicial review of an arbitration decision reinstating three dismissed employees, the employer attempted to supplement the record with their counsel’s notes taken at the arbitration. The Court disallowed the notes and set out what constitutes the proper record on judicial review. The employer’s leave to appeal to the Court of Appeal application was dismissed.

Brantco Construction v. L.I.U.N.A., O.P.D.C. et al. view case (pdf)

This case explains that during a strike where there is an employer’s motion for contempt, the Court must view the proceedings in the context of freedom of expression and take into consideration Charter values. The Court stated: “lt has been long recognized that picketing is a constitutionally recognized form of expression in all contemporary labour disputes…This right of expression is protected by s.2(b) of the Charter.” at para. 15.

Evans v. Teamsters Local Union No. 31 view case (pdf)

This Supreme Court of Canada case articulates that there is no distinction between wrongful dismissal and constructive dismissal with respect to an employee’s obligations regarding their duty to mitigate. It is a multi-factored contextual analysis whether a dismissed employee must accept reemployment with the dismissing employer. The Court stated: “The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” … and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer…it is extremely important that the non-tangible elements of the situation – including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements – be included in the evaluation.” at para. 30

Frick v. IBEW Local 213 view case (pdf)

This is a costs motion in the context of a class action. The Court articulates that there will be no costs awarded with respect to labour board proceedings which occurred as a result of the labour board being directed by the Court to answer specific questions.

​Municipal Property Assessment Corporation view case (pdf)

This decision is a relatively uncommon instance of a labour board addressing pension issues in the context of a union’s statutory obligations to its members. When the Ontario government divested property tax assessment functions to “MPAC” in the 1990s, former Crown employees were moved to a new pension plan, resulting in a “split pension” for many, and resulting in potentially inferior benefits on retirement for some. A group of employees brought this complaint alleging that the union did not properly represent them during the divestment process. Considering the dispute on its merits, the labour board determined that the union had “met and exceeded” its obligations. In reaching this conclusion it examined various factors at play, including the union’s warnings to employees of the potential impact of divestment, efforts to organize workers of the new employer, but most importantly, the absence of any ability by the union to directly control the issue of transfer between pension plans.

BCPSEA v. BCTF and VTF view case (pdf)

This arbitration involved a grievance brought by the BCTF and the VTF to challenge the Vancouver District School Board’s denial of an early retirement incentive program to persons with disabilities. The employer brought a motion to quash the grievance on the basis of estoppel and abuse of process. The employer’s motion was denied. The arbitrator stated: “In my view, the Human Rights Code and the Charter of Rights and Freedoms are statutory and constitutional provisions that represent policies “of significant social importance” such that they must override any argument founded on the doctrines of equitable estoppels and abuse of process.” at p. 17.

Canadian Pacific Railway Company v. Teamsters Canada Rail Conference et al. view case (pdf)

The injunction sought by the employer during a strike was denied. The Court articulates the applicable principles to be applied when an injunction is sought in the context of a lawful strike.

R. v. Gill view case (pdf)

During a lawful strike, the Canadian Pacific Railway Company used its own private police force to arrest striking workers who then had to sign undertakings and promises to appear. The Court quashed the undertakings and promises to appear stating that they were “far too oppressive”.

The City of Vancouver et al. v. CUPE, Local 15 and CUPE, Local 1004 et al. view case (pdf)

During the 2007 city of Vancouver garbage strike, Vancouver’s request for an injunction was denied despite incidents of obstruction. The Court stated: “… I am loathe, as I say the court always will be, to step in and grant the extraordinary relief afforded by an injunction. I reject the notion that simply by virtue of these two incidents of obstruction having occurred it automatically follows that injunctive relief ought to be granted in order to preserve principles of public order and respect for the law.” at para. 13

Bell et al. v. Stang et al. view case (pdf)

This case sets out that in the context of internal union disputes, an interim injunction will be granted given an alleged unconstitutional removal from office of a duly elected union officer.

OPSEU v. Humber College view case (pdf)

This dispute involved the interpretation and application of complex contract provisions governing the assignment of work to professors during non-teaching periods. While the grievance was dismissed on the merits, the arbitrator clarified the contract language at issue and upheld the union’s interpretation of restrictions on management’s ability to assign work during non-teaching periods (p. 25).

Vasquez v. United Steel Workers of America, Local 1-3567 view case (pdf)

This is a certification decision of a class action brought by hospital workers who alleged that they had paid union dues by mistake. The class which mostly consists of women who are newcomers to Canada was successfully certified.

Natrel v. Teamsters Local 647 view case (pdf)

Since the mid-1990s, the OLRA has contained a strict limitation on the time for referring grievances on an “expedited” basis to arbitration which has, from time to time, resulted in otherwise meritorious complaints being dismissed. In this decision, however, the court endorsed an approach which would allow for arbitrators to give consideration to the practice of the parties when determining time limits under a collective agreement. Moreover, the court rejected the argument that an award for monetary damages as a remedy for the improper assignment of overtime work was patently unreasonable in this instance.

Carpenters Local 675 v. R.J. Wilcox view case (pdf)

In this decision, the labour board determined that a constructor of Goodlife Fitness Centres in Ontario was bound to the union’s collective agreement by virtue of being a related/successor employer. The Board gave significant weight to the personal and business relationship between the principals of the predecessor and successor companies and the goodwill and expertise which flowed from such a relationship. The union was subsequently successful in obtaining an award for damages on behalf of its members.

IAM v. Paintplas view case (pdf)

The union successfully brought a claim on behalf of its members based on the improper calculation of vacation pay by the employer over a number of years. The arbitrator determined that the claim was not, for the most part, untimely, and that receipt of pay stubs by employees and union executive members over the years, reflecting the improper calculations, did not in this instance give rise to an “estoppel” or aquiescence to the improper conduct. The employer was ordered to pay damages.

Teamsters Local 880 v. Van De Hogen view case (pdf)

The union alleged in this case that an employee had improperly been laid off. Following the employer’s presentation of its case, the union sought to have its claim upheld on the grounds that the employer had failed to discharge its evidentiary onus in failing to call the decision-maker behind the layoff (para. 38). This argument succeeded and the employer was ordered to reinstate the employee with compensation.

The Ontario Realty Corporation view case (pdf)

This highly unusual decision arose in the context of widespread labour unrest during the mid-1990s in Ontario. A group of unions in this instance requested that the labour board state a case of contempt against a Minister of the Crown and alleged that the labour board lacked independence and impartiality as a result of certain government actions regarding the appointment of labour board members. The labour board accepted the argument that a reasonable apprehension of bias existed and stayed the proceedings.


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