COURT FILE NO.: 706/03

DATE: 20041217

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, GROUND AND PITT JJ.

B E T W E E N:

CECILIA COLLIER

Applicant

- and -

THE AMALGAMATED TRANSIT UNION, LOCAL 113, THE TORONTO TRANSIT COMMISSION and THE ONTARIO LABOUR RELATIONS BOARD

Respondents

Antonio Conte, for the Applicant

Ian J. Fellows, for the Respondent, The Amalgamated Transit Union, Local 113

Douglas K. Gray, for the Respondent, Toronto Transit Commission

Voy Stelmaszynski, for the Respondent, Ontario Labour Relations Board

HEARD: December 17, 2004

THEN J.: (Orally)

1The applicant seeks judicial review of the decision of the Ontario Labour Relations Board dismissing the application under s.74 of the Labour Relations Act which alleged that the respondent union had failed to properly and fairly represent her and that it “acted in a manner that is arbitrary, discriminatory, or in bad faith”.

2We are satisfied that the appropriate standard of review for this Court in reviewing a decision of the Ontario Labour Board under s.74 of the Labour Relations Act, is patent unreasonableness based on the authority of the Supreme Court of Canada in Voice Construction Ltd. v. Construction and General Workers’ Union, Local 92, 2004 SCC 23, [2004] S.C.J. No. 2, at par. 18.

3In our view, the duty of fair representation has been captured by vice-chair Surdykowski in Re Chrysler Canada Ltd., (known as the Switzer case) [1999] O.L.R.D. No. 2454 at paras. 20 and 21 as follows:

“It is well established that the duty of fair representation does not absolutely require a union to either file a grievance or to take a grievance to arbitration just because an employee wants it to. But it does require a union to give fair and objective consideration, not only to an employee’s request to proceed with a grievance, but also to whether a situation merits a grievance even if no employee has complained or requested one. A union is not entitled to sit back and take a purely reactive approach to representative. Indeed, few unions do. Most diligently monitor the administration of their collective agreements in order to protect the integrity of collective bargaining interest, the most important of which (from the perspective of unions if not generally) are the interests of the employees, who are who collective agreements are for after all. The duty of fair representation therefore requires a union to be proactive where circumstances warrant.

Of course, a union cannot be held to a standard of perfection. So long as it acts honestly, objectively and gives due consideration to matters which fall within the ambit of its responsibility as exclusive bargaining agent, a union will not be held to account if it makes a mistake or a simple error in judgment. To constitute a breach of the Act, a union’s conduct must be more than just wrong. It must be arbitrary, discriminatory or in bad faith.”

4We are satisfied from the reasons for decision and reconsideration that the board was fully cognizant of all of the relevant facts, and in particular, of those relating to accommodation, as well as the applicable legal principles in its approach to s.74 of the Labour Relations Act. We are satisfied that the decision of the board was not patently unreasonable but indeed was sustainable on a standard of review of reasonableness simpliciter. Accordingly, the application for judicial review must be dismissed.

5I have endorsed the application record as follows: “The application is dismissed for oral reasons delivered this day. The board does not seek costs. The union has presented a bill of costs in the amount of $9,754.31 but submits that in the circumstances costs in the amount of $5,000 would be reasonable. The T.T.C. seeks costs in the same amount. The applicant submits that notwithstanding the result, no costs should be awarded against the applicant. In our view, this dispute is essentially between the applicant and her union and the T.T.C. has chosen to intervene. In all of the circumstances, we would not award costs to the T.T.C. While we are not disposed to interfere with the decision of the board on the basis of the standard of review, in all

of the circumstances, we are not disposed to award costs to the union. Accordingly, there shall be no order as to costs.”

___________________________

THEN J.

___________________________

GROUND J.

___________________________

PITT J.

Date of Reasons for Judgment: December 17, 2004

Date of Release: January 5, 2005

COURT FILE NO.: 706/03

DATE: 20041217

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, GROUND AND PITT JJ.

B E T W E E N:

CECILIA COLLIER

Applicant

- and -

THE AMALGAMATED TRANSIT UNION, LOCAL 113, THE TORONTO TRANSIT COMMISSION and THE ONTARIO LABOUR RELATIONS BOARD

Respondents