ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MACFARLAND, JENNINGS AND HOWDEN JJ.
B E T W E E N:
UNITED STEEL WORKERS OF AMERICA LOCAL 2784
Applicant
- and -
BON L CANADA INC. – PICKERING PLANT
Respondent
Brian Shell, for the Applicant
Douglas K. Gray, for the Respondent
HEARD: June 8, 2004
macfarland J.: (Orally)
1We agree with Mr. Gray’s submission that the two questions before Arbitrator Kirkwood were:
(1) “What do the words “without prejudice” mean in Arbitrator Lee’s decision? and
(2) Was the case before her the same or essentially the same as the case before Arbitrator Lee?”
2In our view, the standard of review applying the pragmatic and functional approach as the Supreme Court of Canada directs, is on the issues raised before us, one of reasonableness.
3The Arbitrator, in determining the first question brought to bear her experience as a labour arbitrator and decided correctly in our view that a straight common law approach in considering these words was inappropriate in the context of this case and as the Court of Appeal in this province noted in the Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 707 (ON CA), 8 O.R. (2d) 103 (C.A.):
“And so common law concepts give way to the negotiated agreement and the jurisdiction of arbitrators to give final and binding decisions where differences arise between the parties relating to the interpretation, application, administration of the agreement, including questions as to whether the matter is arbitrable, and the allegations that the agreement has been violated.”
4As to the second question, we agree that the Arbitrator was in the best position to decide whether the issues before her were in substance the same as those before Arbitrator Lee. She had the benefit of the submissions made in relation to the facts and brought to bear her labour expertise, her decision is reasonable. The application for judicial review is dismissed.
5The endorsement will read: “For reasons given this day, the application is dismissed. Costs to the respondent fixed in the sum of $5,000.00”.
MACFARLAND J.
JENNINGS J.
HOWDEN J.
Date of Reasons for Judgment:
Date of Release: June 21, 2004
COURT FILE NO.: 616/03
DATE: 20040608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MACFARLAND, JENNINGS AND HOWDEN JJ.
B E T W E E N:
UNITED STEEL WORKERS OF AMERICA LOCAL 2784
Applicant
- and -
BON L CANADA INC. – PICKERING PLANT
Respondent
ORAL REASONS FOR JUDGMENT
MACFARLAND J.
Date of Reasons for Judgment: June 8, 2004
Date of Release: June 21, 2004