Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)
RE: JAMES GERRIE, Applicant
A N D:
ONTARIO LABOUR RELATIONS BOARD et al, Respondents
BEFORE: LANE, PITT and MOLLOY JJ.
COUNSEL: James Gerrie, on his own behalf Voy Stelmaszynski, for the Respondent, Ontario Labour Relations Board Niki Lundquist, for the Respondent CAW Local 385 Gita Anand, for the Intervenor, Coca-Cola Bottling Ltd.
HEARD: November 16, 2004
E N D O R S E M E N T
MOLLOY J:
1Mr. Gerrie seeks judicial review of a decision made by Vice-Chair Timothy Sargeant of the Ontario Labour Relations Board (“OLRB”) dated February 28, 2001. The sole issue before the OLRB was whether Mr. Gerrie’s union (“CAW”) contravened s. 74 of the Labour Relations Act (“the Act”).
2For purposes of this judicial review application, it is not necessary for us to determine whether the standard of review is the most stringent “patently unreasonable” standard or the lesser standard of reasonableness simpliciter. Regardless of which standard is applied, we find no basis to interfere with the Vice-Chair’s decision.
3Section 74 of the Act provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit …
4At paragraph 22 of his decision, the Vice-Chair correctly stated the legal test for determining whether a union has acted in a manner that is “arbitrary, discriminatory or in bad faith” within the meaning of the Act.
5The Vice-Chair determined that the evidence did not support a finding of any arbitrary, discriminatory or bad faith conduct by CAW. It was open to the Vice-Chair to make such a finding based on the record before him. Indeed, we find that determination to be a reasonable and wholly sustainable conclusion in the circumstances.
6The Vice-Chair did not rule on the proper interpretation of Article 2.03 of the Collective Agreement or whether there is a conflict between it and other provisions of the Collective Agreement. It was neither necessary nor appropriate that he do so. That was not the issue before him. Rather, the question he had to decide was whether the union had acted in violation of s. 74 of the Act. Mr. Gerrie obviously feels strongly that temporary employees, and in particular temporary employees who have passed a period of probation, are entitled to the benefit of many provisions of the collective agreement, including Article 4.01 which protects all employees from dismissal without just cause.
7However, Article 2.03, which deals specifically with temporary employees, states, “Temporary employees shall have no seniority rights and their retention shall be solely at the discretion of the Company.” It is at least arguable that the specific overrules the general such that the company’s decision not to continue the retention of a temporary employee is completely in its own discretion and not subject to a wrongful dismissal grievance. It would not be an unreasonable construction of Article 2.03 to read it as a complete defence to Mr. Gerrie’s grievance.
8The point, however, is not whether the grievance would or would not have been successful. The question is whether the union breached s. 74 of the Act. The Vice-Chair held that the union’s decision not to proceed with Mr. Gerrie’s grievance was reasonable in light of all the circumstances, including the provisions of the Collective Agreement. We agree.
9The Vice-Chair correctly identified the legal test and correctly applied that test to the evidence before him. His conclusion that the union did not contravene s. 74 of the Act was a reasonable one and is entitled to deference. We will not interfere with his determination in that regard.
10We further find there is no evidence whatsoever to support the complainant’s allegations that the Vice-Chair failed to exercise his statutory duty or that he was biased or breached his oath of office.
11Accordingly, this application for judicial review is dismissed.
12The responding parties have submitted that this application should be dismissed because of delay, three years having elapsed from the Vice-Chair’s decision to the date this application was commenced. We have elected to deal with the application on its merits. However, even allowing for the fact that Mr. Gerrie is unrepresented, we are of the view that it would have been open to us to dismiss his application on the basis of the delay alone.
13If any of the responding parties is seeking costs, written submissions in that regard may be directed to us, with a copy to Mr. Gerrie. If such submissions are made, Mr. Gerrie will have the right to send a brief written response, confined to the costs issues, within 10 days of receipt of the respondent’s submissions.
MOLLOY J.
I agree:___________________________
LANE J.
I agree:___________________________
PITT J.