COURT FILE NO.: 129/2001

DATE: 20030416

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

flinn, lang and somers jj.

B E T W E E N:

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

Applicant

• and -

ONTARIO PUBLIC SERVICE STAFF UNION

Respondent

John Terry and Michael G. Robb, for the Applicant

Sylvia Davis, for the Respondent

HEARD: April 16, 2003

LANG J.: (Orally)

1The applicant argues that the standard of review is correctness because it is challenging the arbitrator's jurisdiction. The applicant alleges that the arbitrator decided the Doig and Johnson grievances when the policy grievance was the only one at issue. We do not accept this submission.

2The only grievance before the arbitrator was the broad policy grievance; the Doig and Johnson grievances were not before him. What was before him, however, were the Doig, Hupet and Johnston facts, which were given to him as context for the policy grievance. Context was necessary to interpret the policy grievance, and more specifically the March 24th e-mail, which, on its face, might otherwise have appeared innocuous.

3The Doig and Johnson documents that initiated their individual grievances were not given to the arbitrator and he made no specific award with respect to either grievance. His award, a broad one on the policy grievance, required executive members to cease and desist from, amongst other things, maligning staff union members. Not only is there no specific reference in the remedy to Johnson or Doig, the arbitrator did not even address the remedies requested in their individual grievances, in particular their requests for relief such as damages, compensation, apologies, etc. This is not a case where the arbitrator exceeded his jurisdiction by considering grievances not before him.

4OPSEU's real issue is with the arbitrator's specific factual findings, which were adverse to Mr. Presley and were in favour of Ms. Doig, Ms. Johnson and Mr. Hupet. OPSEU alleges that, in fairness, the arbitrator should not have made those findings without proper notice and a full hearing. It characterizes those findings as outside the arbitrator's jurisdiction because they exceeded the submission to arbitration. In our view, this case is really about the scope of the arbitration, or the evidence relevant to the issues, matters well within the core of the arbitrator's jurisdiction.

5Counsel present at the arbitration agreed that a broad policy award should be issued by the arbitrator. The arbitrator needed context upon which to base such an award; he was not prepared to make an award in a vacuum. No issue was taken with the arbitrator's request for background facts on which to base his award. On consent, the arbitrator was given copies of correspondence, reports, proposed resolutions, memoranda and minutes of settlement. These documents related to Mr. Presley and his views with respect to Ms. Doig, Mr. Hupet and Ms. Johnson. The arbitrator used this information to write an award in which he made extensive factual findings about Mr. Presley's political conduct and the actions of Ms. Doig, Mr. Hupet and Ms. Johnson. He drew conclusions about Mr. Presley's motives and the impact his actions had on those affected.

6The applicant asks us to distinguish between proper policy grievance findings, such as that Mr. Presley was acting out of political motives, and other factual findings such as the finding that there was no impropriety on the parts of Ms. Doig, Ms. Johnson or Mr. Hupet.

7The question before us is not whether we agree with the arbitrator's decision nor even whether the arbitrator's award was a reasonable one. In determining facts relevant to his award the arbitrator was acting within his jurisdiction; the standard of review is, therefore, whether the arbitrator's award was patently unreasonable.

8In the circumstances, OPSEU was present, took no exception to Ms. Watson's opening statement, its counsel responded, and all parties agreed to the admission of the contextual documents on the basis that their contents were uncontested. Therefore OPSEU had a very detailed notice of the foundation on which the policy grievance would be determined.

9In those circumstances it can hardly be said that the arbitrator acted improperly in making factual findings on uncontested material given as background for a broad-based policy award. Further, we cannot find that the subsequent clerical amendment of the award was made without jurisdiction or that the amendment was patently unreasonable.

10In our view, this is not a case where the arbitrator exceeded his jurisdiction, considered matters outside his jurisdiction or made patently unreasonable findings on matters within his jurisdiction. The application for judicial review is dismissed.

FLINN J.

11The application record will read as follows: "Dismissed for the reasons read by Lang J. and which will be appended to this record. Costs to the respondent fixed at $15,000."

Date of Reasons for Judgment: April 16, 2003

Date of Release: May 7, 2003

COURT FILE NO.: 129/2001

DATE: 20030416

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

flinn, lang and somers jj.