ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lane, brockenshire and cameron jj.
B E T W E E N:
UNITED STEELWORKERS OF AMERICA, LOCAL 4752
Applicant
- and -
SLATER STEELS HAMILTON SPECIALTY BAR DIVISION A DIVISION OF SLATER STEEL INC. HAMILTON, ONTARIO
Respondent
Brian Lawson, for the Applicant
Mark D. Contini, for the Respondent
HEARD: April 1, 2003
CAMERON J.: (Orally)
1This is an application for judicial review to quash the award of the arbitrator under s.49 of the Ontario Labour Relations Act, dated July 3, 2001 on a grievance following discharge of Mr. Fazio for falling asleep at work on October 16 and 17, 1999.
2Following an earlier incident of falling asleep at work the parties signed a Last Chance Agreement dated January 21, 1999 requiring Mr. Fazio to comply with the employer's Code of Conduct which permitted immediate discharge if sleeping on the job. The Code permitted an employee to seek permission to go to a rest area. The Last Chance Agreement limited the arbitrator's jurisdiction to the question of violation of the Code and did not permit the arbitrator to review the company's decision as to penalty.
3The applicant's central complaint is that the award is patently unreasonable because the arbitrator disregarded an allegedly uncontradicted medical opinion, based on medical examinations between October 2000 and January 2001, that Mr. Fazio suffered from sleep apnea and circadian rhythm disorder, and probably suffered from these problems prior to the Last Chance Agreement.
4The arbitrator considered the evidence and arguments on these issues carefully. The doctor's opinion was largely based on Mrs. Fazio's evidence which the arbitrator chose not to accept. The Arbitrator considered Mr. Fazio's health record for the four years preceding termination during which he complained of nasal congestion but there was no complaint of sleep disruption or tiredness in that period. He also considered the impact of shift work and the relative lack of sleep the previous day. The arbitrator did not ignore or misapprehend material evidence. Dr. Champagne wrote on January 18, 2001 that sleep apnea and circadian rhythm may have facilitated the sleeping.
5Acting within his jurisdiction the arbitrator found as a fact at pages 30-32 that:
(i) The sleep apnea became significant only after termination; and,
(ii) There was no evidence of the degree of the effect of circadian rhythm disorder on Mr. Fazio at the date of the Last Chance Agreement or his dismissal.
6These findings would render nugatory allegations that the Last Chance Agreement or the termination constituted discrimination under the Ontario Human Rights Code. The arbitrator's decision confirming breach of the Last Chance Agreement for intentional sleeping on the job was not patently unreasonable or irrational.
LANE J.
7I have endorsed the record: "For reasons delivered in Court by Mr. Justice Cameron the application is dismissed. The respondent will have its costs fixed at $2,500".
LANE J.
BROCKENSHIRE J.
CAMERON J.
Date of Reasons for Judgment: April 1, 2003
Date of Release: April 7, 2003
COURT FILE NO.: 711/2001
DATE: 20030401
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lane, brockenshire and cameron jj.
B E T W E E N:
UNITED STEELWORKERS OF AMERICA, LOCAL 4752
Applicant
- and -
SLATER STEELS HAMILTON SPECIALTY BAR DIVISION A DIVISION OF SLATER STEEL INC. HAMILTON, ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
CAMERON J.
Date of Reasons for Judgment: April 1, 2003
Date of Release: April 7, 2003