Canada: "Arbitral Creativity": Arbitrator Implies an Anti-Harassment Term in a Collective Agreement

Last Updated: December 14 2004
Article by Dave McKechnie

In Toronto Transit Commission v. Amalgamated Transit Union, October 6, 2004 (Shime), a labour arbitration decision that could expose supervisors and unionized employers to significant damages, an arbitrator found the Toronto Transit Commission (TTC) and one of its supervisors liable for $25,000 in general damages for the supervisor’s harassment of a union employee.

In the case, the grievor alleged that the foreman engaged in a campaign of relentless harassment regarding his performance and productivity. The arbitrator found as fact that the foreman abused his authority and harassed the grievor by frequently and publicly telling the grievor to get back to work while others were not working, by unjustifiably complaining about the grievor’s work, by attempting to discipline the grievor where it was not warranted and by making unreasonable demands on the grievor with respect to work performance.

The TTC argued that the collective agreement and the collective bargaining regime do not provide for claims for damages based on tortious misconduct, such as negligence, defamation and harassment. Therefore the arbitrator did not have the jurisdiction to hear the grievance (an argument subsequently decided by the Ontario Divisional Court in the Seneca College decision referred to below). The arbitrator looked to both the management rights clause and the requirements under the Occupational Health and Safety Act to ground his jurisdiction and make the issue arbitrableBecause the collective agreement provided for the establishment of a Joint Health and Safety Committee, the arbitrator found that it was implied that management would exercise its rights with a view to the safety of the employee. In addition, the arbitrator held that the supervisor’s managerial authority was circumscribed by the Occupational Health and Safety Act, which requires supervisors to take every precaution reasonable to protect a worker.

The arbitrator found that "when a supervisor exercises his/her authority under the collective agreement, it is an implied term that the supervisor do so in a manner that is consistent with the legislation". This implied term required the TTC to exercise its management rights in a manner that ensures the safety of its employees, including their psychological safety. The arbitrator concluded that "a supervisor who abuses his/her authority and abuses and harasses an employee is not administering the management rights clause in a reasonable manner and is in violation of the collective agreement".

While the TTC raised the issue of whether such a finding would lead to increased claims by employees against their supervisors for any sort of ill-treatment, the arbitrator rejected the argument in the circumstances of this case. However this exercise of "arbitral creativity", as the arbitrator termed it, could indeed have that effect. This is a case that supports the maxim "bad facts made bad law". While the arbitrator found that he could imply a term into the collective agreement based on the school of thought that employers must exercise their managerial rights "responsibly", the arbitrator does not discuss the source of his jurisdiction to award general damages in the amount of $25,000 against the supervisor and the TTC, nor the grounds for awarding that particular amount.

The question is whether this decision will lead to grievances based on workplace disagreements between a supervisor and employee. It has been said that industrial shops are not debating societies. Arbitrators in the past have been unwilling to interfere with a supervisor’s discretion in how a workplace is run. They have recognized that "shop talk" will occur and there will be instances where ill will arises as a result of a supervisor’s direction.

However, it appears here that the arbitrator has crafted both a duty and a remedy in order to compensate a particular case of egregious conduct. By engaging in such "arbitral creativity", the arbitrator may have exposed employers to increased grievances and potentially significant liability. While employers clearly cannot condone behaviour by supervisors that offends the Human Rights Code (in the TTC case there was no such allegation), employers and supervisors could find that unpopular directions will expose them to claims of harassment and potentially make them liable in damages.

It remains to be seen whether this decision will open the floodgates on a variety of similar claims. What about a supervisor who feels aggrieved by the abusive behaviour of a particular bargaining unit employee? Would he be able to claim damages against the union and employer through the grievance and arbitration process? Will other arbitrators be as inclined as this one to deal with such disputes? In Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology, [2004] O.J. No. 4440 (released November 1, 2004), the Ontario Divisional Court found that an arbitration board erred in law by not addressing a grievor’s claim for aggravated and punitive damages for defamation and intentional infliction of mental distress arising from his dismissal. The TTC and Seneca College decisions should be considered as the natural application of the Supreme Court of Canada’s decision in Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583, which held that an arbitrator has exclusive jurisdiction where the essential character of the dispute arises either expressly or inferentially out of a collective agreement. Arbitrators now appear willing to both address such claims in the arbitration process and provide a remedy in damages. While some arbitrators may feel that this decision goes too far, it would not be surprising if it begins to be used to ground similar claims in the future.

We will be following this issue to see if similar grievances proceed to arbitration. In the meantime, should you have any questions or comments, or wish further information, please do not hesitate to contact any member of our Employee and Labour Relations group.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2004 McMillan Binch LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dave McKechnie
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.