COURT FILE NO.: 257/05

DATE: 20061120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HOILETT, PARDU AND GROUND JJ.

B E T W E E N:

IKO INDUSTRIES LTD.

Applicant

• and -

THE UNITED STEEL WORKERS OF AMERICA, LOCAL 8580 and MARY LOU TIMS

Respondents

Ranjan Das, for the Applicant

Robert Champagne, for the Respondents

HEARD at Toronto: November 20, 2006

pardu J.: (Orally)

1The applicant employer moves to quash the decision of a labour arbitrator forbidding the employer from implementing a finger scan system to check employees in and out of the workplace.

2The employer alleges that the arbitrator did not have jurisdiction to hear the grievance and that the decision was patently unreasonable. Both parties agree that the standard of review is patent unreasonableness. See Voice Construction Ltd. v. Construction and General Workers’ Union, Local 92 (2004), 2004 SCC 23, 238 D.L.R. (4th) 217 (S.C.C.) and Lakeport Beverages v. Teamsters Local Union 938, [2005] O.J. No. 3488.

3The employer conceded before the arbitrator that the employee’s right to privacy was recognized in the arbitral jurisprudence and made it clear to the arbitrator, “that the company does not contest my jurisdiction to determine whether such right is violated here as alleged by the Union”.

4Section 48(1) of the Labour Relations Act, S.O. 1995, provides that every collective agreement shall provide for the final and binding settlement by arbitration of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. It would not be appropriate to challenge the arbitrator’s jurisdiction for the first time on an application for judicial review.

5The arbitrator’s decision was thorough and well-reasoned. The employer essentially argued that the arbitrator ought to have balanced the employer’s and employee’s interest differently. She concluded that finger scan information did have an impact on an employee’s privacy interests and the employer concedes that this was not patently unreasonable. She ultimately concluded that while the invasion of privacy was not substantial, the employer’s interest in implementing the system did not outweigh the invasion of privacy given all of the circumstances of the workplace and alternative means available to the employer. This was not a patently unreasonable decision, the application is accordingly dismissed.

HOILETT J.

6I have endorsed the Application Record as follows: “The application is dismissed with costs fixed in the amount of $4,000.00; the amount of which was agreed upon by counsel.”

PARDU J.

HOILETT J.

GROUND J.

Date of Reasons for Judgment: November 20, 2006

Date of Release: November 22, 2006

COURT FILE NO.: 257/05

DATE: 20061120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT