COURT FILE NO.: 419/03

DATE: 20041025

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, CARNWATH AND SWINTON JJ.

B E T W E E N:

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 5167

Applicant

• and -

THE CITY OF HAMILTON

Respondent

Howard Goldblatt, for the Applicant

Gary Kuzyk, for the Respondent

HEARD AT TORONTO: March 5, 2004 and October 25, 2004

SWINTON J.: (Orally)

1This Court has held that the standard of review in interpreting the Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c.21, Sch. B., is correctness. (See Canadian Union of Public Employees Local 79 v. Toronto (City), [2001] O.J. No. 3132 (Div. Ct.)).

2The arbitrator erred in his interpretation of s.33(3) of the Act. That section is applicable only if notice to bargain a first collective agreement has been given, after the bargaining structure and bargaining agent for the amalgamated city have been determined. (See s.33(2)).

3Pursuant to ss.14 and 15, the bargaining structure existing on the changeover date continued at the time of the award. The arbitrator held that the job posting must be conducted in accordance with Article 13 of the collective agreement between the former City of Hamilton and CUPE Local 5167. In accordance with ss. 14(3)2 and 15(1) and (3), the incumbent was not a member of that bargaining unit nor bound by the terms of that collective agreement. His terms and conditions of employment were governed by his contract of employment (see s.15(6)). Section 15(7) does not apply here, given that there was no finding that the new job and the old job of the incumbent were substantially the same, and given that the job had been posted within the bargaining unit of Local 5167.

4Therefore, the application for judicial review is granted, and the decision of the arbitrator is quashed.

THEN J.

5In our view, it is not open to this Court under the Judicial Review Procedure Act to award the position of Senior Building Inspector – Plans Examiner to the grievor. Accordingly, the matter is remitted to a new board of arbitration differently constituted to be determined in accordance with the decision of this Court.

6The applicant seeks costs in the amount of $11,500, all inclusive, whereas the respondent concedes that costs in the amount of $10,000 is appropriate.

7In our view, costs in the amount of $10,000, all inclusive, on a partial indemnity basis is reasonable and fair in the circumstances. Costs to the applicant in the amount of $10,000.

THEN J.

CARNWATH J.

SWINTON J.

Date of Reasons for Judgment: October 25, 2004

Date of Release: November 1, 2004

COURT FILE NO.: 419/03

DATE: 20041025

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT