Age-Based LTD Cutoff Provisions Survive Charter Challenge
University Health Network (Toronto Western Hospital And Toronto General Hospital) v Ontario Nurses’ Association, 2025 CanLII 47230 (ON LA) (Gedalof, May 21, 2025)
A recent arbitration decision has upheld the termination of long-term disability (LTD) benefits at age 65, finding the statutory provisions under the Ontario Human Rights Code (the “Code”) and the Employment Standards Act, 2000 that allow this age-based cutoff to be a reasonable limit under the Canadian Charter of Rights and Freedoms (the “Charter”).
The case involved a grievance by a union challenging the end of LTD benefits at age 65, arguing it violated the Code and Charter equality rights. While the parties agreed the exclusion discriminated on the basis of age, the key issue was whether that discrimination could be justified under s.1 of the Charter.
The arbitrator found that, although less exclusionary alternatives might be feasible, the current legislative framework serves a pressing and substantial objective: protecting the viability of employee benefit plans. The evidence showed that providing unlimited LTD coverage beyond age 65 would be prohibitively expensive, and post-65 LTD coverage remains rare in the insurance market.
Ultimately, the arbitrator concluded that the age-based carve-out for LTD benefits is constitutionally valid and justifiable, and the grievance was dismissed.
Arbitrator Dismisses Pregnancy-Related Discrimination Grievance Involving Short-Term Disability Benefits
Health Sciences North v Ontario Nurses’ Association, 2025 CanLII 50775 (ON LA) (McNamee, June 02, 2025)
Background
The grievor began a short-term disability leave in late 2022, which was followed by a pregnancy and parental leave. The grievor was scheduled to return to work in July 2024; however, she became ill again (with a different condition than her earlier disability) and sought to access a fresh 15-week STD entitlement under the HOODIP 1992 plan. The employer denied the request, stating that HOODIP rules require an employee to return to work for at least three weeks before a new STD benefit period is reinstated. Because the grievor had not returned to active work, she was entitled only to the unused portion of her original STD leave.
ONA argued that the plan’s requirement had an adverse impact on women because pregnancy leave made it impossible to meet the three-week return-to-work threshold. As such, the union claimed the rule was discriminatory on the basis of sex, contrary to the Code and the collective agreement.
Arbitrator’s Decision
The arbitrator dismissed the grievance, finding as follows:
- The HOODIP rule applied equally to all employees, regardless of the type of leave. Any employee—pregnant or not—who had not returned to work could not trigger reinstatement of STD benefits.
- The grievor was not treated differently from others similarly situated (i.e. those on leave and not actively working).
- The union’s proposed comparator group—employees not on pregnancy leave—was inappropriate. Instead, the correct comparison was to all employees on leave.
- The plan’s active employment requirement for reinstatement was a bona fide occupational requirement and not discriminatory.
Nurse Reinstated After Termination for Medication Stockpile Incident
Ontario Nurses Association v Centre for Addiction and Mental Health, 2025 CanLII 30384 (ON LA) (McIntyre, March 31, 2025)
Overview
The union grieved a 3-day suspension that the grievor had received for a medication error, as well as the grievor’s termination for an incident involving a medication stockpile. Arbitrator McIntyre upheld the suspension, but overturned the termination, finding that it had been inappropriate in the circumstances. The arbitrator substituted a 10-day suspension and ordered reinstatement without loss of seniority or service.
Facts
The grievor was an experienced Registered Nurse who had been employed by the hospital since 2007. She worked night shifts. During a shift in January 2019, the grievor made a series of mistakes that led to one patient receiving 400 mg of an anti-psychotic medication that was intended for another patient, instead of the 5 mg of anxiety medication that they should have received. While the grievor realized and dealt with this error immediately, it was still found to be a serious incident, and the employer imposed a 3-day suspension.
Several months later, in April 2019, the employer discovered there was an improper stockpile of medications in one of the carts that was regularly used by the nurses. Some of the medications were controlled substances and some were expired. The employer investigated the incident. The reason for the stockpile given by many of the staff was the challenges of acquiring missing medications on the nightshift when the pharmacy was closed. These problems were largely addressed in 2018 when a new process was implemented.
In terms of the grievor’s involvement in the stockpile, among other things, the investigation showed there were many non-medical items in the cart that belonged to the grievor, such as office and personal supplies. In addition, when management interviewed the grievor, she did not show remorse for the stockpile and sought to justify its existence on the basis that it had been difficult prior to 2018 to obtain certain medications during the nightshift.
In response to the stockpile incident and the investigation, the employer placed the grievor on a paid leave of absence and then terminated her employment. The other nurses who had been involved only received non-disciplinary letters.
In the grievor’s termination letter, the employer set out several grounds for the termination, including the grievor’s continued access to the stockpile, not reporting the stockpile, allegedly organizing the stockpile, and not demonstrating remorse for the stockpile during the investigation.
The union grieved the suspension and the termination.
Decision
The arbitrator upheld the 3-day suspension in response to the medication error, finding that the error had been serious in nature, and that the grievor’s lack of remorse and refusal to take responsibility were aggravating factors.
In terms of the stockpile, the crux of the case was whether the difference in penalties as between the grievor (i.e. termination) and her colleagues (i.e. non-disciplinary letters) was justified. The arbitrator determined it was not, and relied on several key findings in support of this decision.
For example: the evidence did not show that the grievor’s use of the stockpile differed significantly, in nature or in degree, from that of her colleagues, such that a much harsher penalty was appropriate; all of the nurses on the unit had known about the stockpile and none of them had reported it to management, so this misconduct was not unique to the grievor; the proximity of the grievor’s personal items to the stockpile was not sufficient evidence to demonstrate that the grievor had organized the stockpile, or had had any more ownership over it than her colleagues; and the grievor’s lack of remorse was not sufficiently serious to warrant termination, especially given the absence of progressive discipline in this case (other than the suspension, the grievor had no prior disciplinary history).
In summary, the arbitrator ruled that the unequal penalty between the grievor and her colleagues was not justified. The arbitrator substituted a 10-day suspension and ordered reinstatement without loss of seniority or service, despite the hospital’s assertion that the employment relationship had been irreparably damaged.
Nurse Reinstated After Termination for Pediatric Medication Incident
Ontario Nurses’ Association v Royal Victoria Hospital, 2025 CanLII 43167 (ON LA) (Jesin, May 12, 2025)
An experienced emergency nurse was reinstated after being dismissed for her role in forcibly administering oral medication to a combative 7-year-old patient in mental health crisis.
The arbitrator found that the nurse used minimal force—briefly pinching the child’s nose and placing her hand over his mouth—to administer prescribed medication safely. There was no evidence of harm or airway obstruction, and no clear hospital policy prohibited the conduct. The arbitrator concluded that in the absence of bad faith or abuse, termination was an excessive response.
Failure to Provide Written Reasons for Probationary Dismissal Breaches Collective Agreement, But Does Not Void Termination
Almonte General Hospital v Ontario Nurses’ Association, 2025 CanLII 39307 (ON LA) (Nairn, May 2, 2025)
Overview
Arbitrator Nairn found that the hospital violated the collective agreement when it failed to provide written reasons for terminating a probationary nurse. The grievor was dismissed in March 2023 during a meeting with management. The termination letter stated only that she had failed to “successfully complete” her probation and did not include any further explanation. The union grieved the dismissal, arguing that the hospital’s failure to provide written reasons rendered the termination void.
Requirement for Written Reasons
The collective agreement required the employer to provide written reasons for the release of a probationary nurse within seven days, with a copy sent to the local union. The arbitrator confirmed that the hospital’s letter failed to meet that threshold, stating that “inability” or “unsuccessful completion” amounts to an outcome, not a reason. This constituted a breach of the agreement. However, the arbitrator emphasized that while written reasons were mandatory, non-compliance did not automatically void the termination.
Verbal Communications and Context
Despite the absence of written reasons, the arbitrator found that both the union and the grievor were sufficiently informed of the employer’s concerns through verbal communications. These included allegations about documentation errors, interpersonal conflicts, and workplace behaviour that had reportedly made colleagues uncomfortable. The arbitrator also noted that the grievor was aware of specific incidents referenced at the termination meeting and in later discussions, and had clearly formed her own understanding of the reasons behind her dismissal.
Remedy Ordered
Although the termination itself was upheld, the arbitrator awarded compensation for the period between the date of dismissal and the date by which proper written reasons should have been provided.
Failure to Post Vacant Positions Results in Monetary Damages
Canadian Union of Public Employees Local 4000 v The Ottawa Hospital, 2025 CanLII 32667 (ON LA) (Tremayne, February 27, 2025)
Background
The union filed multiple grievances against The Ottawa Hospital, alleging failure to post vacant positions within the time limits specified in the collective agreement. The grievances covered approximately 60 alleged violations between December 2017 and September 2021.
The collective agreement required the hospital to post permanent vacant positions within 30 calendar days of the position becoming vacant, unless notice was provided that the position would be eliminated. The union represented about 4,300 employees at the hospital, which operated three primary campuses and 25 satellite clinics.
Arguments of the Parties
The union argued that the hospital’s failure to post positions within the time limit was excessive and continuous, warranting compensation and damages. The hospital contended that the grievances represented a small proportion of total staffing transactions and that most positions were eventually posted. It also cited the COVID-19 pandemic as a factor hindering compliance.
Decision
Arbitrator Tremayne agreed with the union and found that the hospital had breached the collective agreement by failing to post vacant positions within the specified time period.
In terms of the hospital’s argument that the COVID-19 pandemic had hindered its ability to comply with the collective agreement, the arbitrator provided in relevant part as follows:
45. … I understand that the pandemic may have derailed certain plans for improvement. I accept that the Staffing Coordinators and the Talent Acquisition team face a relentless task, and it is beyond any doubt that they have done their very best to deal with an enormous workload. The Hospital has reiterated its commitment to comply with the time limits. It is unlikely to have done so if it thought the problem could not be fixed. Yet, understandably, the Union has grown frustrated because the problem continues.
46. … I find that declaratory relief on its own would be an inadequate response. Absent additional consequences, there is little incentive for the Hospital to address the problem more effectively and apply additional effort toward consistently respecting the time limits in Article 9.05. The harm to the Union and the affected bargaining unit members must also be addressed.
47. In particular, I am sensitive to the fact that behind each of these incidents is an employee whose plans for career development or access to a more desirable or higher-paid position have been delayed or otherwise frustrated. Timely access to a large pool of job opportunities and the accompanying paths to advancement are an important part of the overall package of benefits that members of the CUPE bargaining unit enjoy. The parties have negotiated this and have made it part of their Collective Agreement. It should not be treated casually, even if the number of times that the Hospital has fallen short of its obligations is not alarming in the context of the overall institution…
In terms of a remedy, the arbitrator awarded monetary damages to the union and to the affected employees. The arbitrator left the issue of quantification to the parties and indicated that they would remain seized of the matter should any issues arise in this regard.
Unilateral Schedule Change for Senior Clerks Found to Breach Collective Agreement
CUPE, Local 5852 v Scarborough Health Network, 2025 CanLII 44316 (ON LA) (Mitchnick, May 05, 2025)
The union challenged the hospital’s unilateral decision to change the master schedule for Senior Bed Allocation Clerks, requiring all full-time staff to work night shifts. The grievors had originally bid on day/evening shifts and accepted the positions based on that understanding. The Arbitrator found that the hospital’s actions violated the collective agreement, particularly provisions governing extended tours, which require mutual agreement for schedule changes. The arbitrator ordered the hospital to rescind the revised schedule within 30 days and awarded each grievor $1,250 in general damages for the loss of vacation choice and the burden of arranging shift swaps.
“Continuing” Holiday Scheduling Grievance Allowed to Proceed Despite Objection Regarding Timeliness
Royal Ottawa Health Care Group (Brockville Mental Health Centre) v Ontario Public Service Employees Union, 2025 CanLII 34621 (ON LA) (Nairn, April 14, 2025)
This case involved a grievance from a permanent part-time Pharmacy Technician at the Brockville Mental Health Centre. The grievance alleged that the employer violated the collective agreement by failing to schedule the grievor for “3 and 2” shifts over a two-week period, regardless of holidays.
The employer raised a preliminary objection, arguing that the grievance was untimely and should be dismissed. However, Arbitrator Nairn found that the grievance was of a continuing nature, as the alleged breach occurred each time there was a holiday and the grievor was not scheduled to work the required shifts.
The arbitrator exercised their statutory discretion to extend the time limits for filing the grievance, noting that the delay was relatively short and there was no substantial prejudice to the employer. The grievance will proceed on its merits.
“Continuing” Accommodation-Related Grievance Allowed to Proceed, But Only Partially for Timeliness Reasons
Ontario Nurses’ Association v The Ottawa Hospital, 2025 CanLII 48480 (ON LA) (Webb, May 27, 2025)
The arbitrator ruled on a preliminary basis that a nurse’s grievance regarding workplace accommodation was a continuing grievance—but only from the point she formally requested permanent accommodation on September 2, 2021.
The grievor alleged a long history of harassment, failed accommodations, and mishandling of medical information dating back to 2019. While the union argued that these formed a continuous pattern of discrimination, the arbitrator found that earlier incidents were distinct and should have been grieved at the time. Because the union provided no justification for the delay, those earlier allegations were ruled inarbitrable.
However, the arbitrator accepted that the employer’s actions following the September 2021 accommodation request—including a controversial referral for a psychiatric IME—formed a continuing course of conduct. These later events were allowed to proceed to arbitration.
HRTO Upholds Termination for Failure to Comply with COVID-19 Vaccination Policy
Barry v. St. Joseph’s Health Care London, 2025 HRTO 761 (McNair, March 24, 2025)
The applicant alleged that her former employer had engaged in discrimination and reprisal—based on creed and association with others of a creed—after her employment was terminated for not complying with a mandatory COVID-19 vaccination policy.
The Tribunal asked the applicant to provide details about her creed and how it prevented her from receiving a vaccine, and to explain how the employer’s actions constituted reprisal. The complainant did not provide the requested information, asserting that the Tribunal’s request was discriminatory.
Member McNair found that the application lacked the necessary factual basis to establish discrimination or reprisal. The Tribunal concluded that the applicant did not provide evidence linking her dismissal to her creed or association with others of a creed, nor did she substantiate her claim of reprisal. The application was dismissed.
The authors would like to thank John (Jack) Haddad, Hunter Legal’s 2025 Summer Student, for his assistance with this article.
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