Court File and Parties
COURT FILE NO.: 125/06
DATE: 20061214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, SWINTON AND LINHARES DE SOUSA
B E T W E E N:
SANTA FE MASONRY, SANTA FE MASONRY INC., and EMILIO AMENDOLA, carrying on business as CAN-AM MASONRY
Applicant
- and -
BRICKLAYERS, MASONS INDEPENDENT UNION OF CANADA, LOCAL 1 and UNIVERSAL WORKERS UNION, LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 and MASONRY COUNCIL OF UNIONS OF TORONTO AND VICINITY and ROBERT J. HERMAN
Respondents
Emilio Amendola, In Person
Stephen Wahl, for the Respondents
HEARD at Toronto: December 14, 2006
Oral Reasons for Judgment
CHAPNIK J.: (Orally)
[1] Despite the fact that the orders of Ground J. dated October 11, 2006, that a new application record be filed by the applicant by November 1, 2006 and that he pay the union’s costs within thirty days, have not been complied with, both parties appear today and ask that the matter proceed.
[2] After hearing submissions from both parties, Mr. Emilio Amendola, acting on his own behalf and Mr. Stephen Wahl, on behalf of the respondents, we have reached a decision.
[3] The applicant, Mr. Amendola, asks the Court to set aside grievance awards made by Arbitrator Robert J. Herman on January 25, 2006, and February 16, 2006. The applicant contends that Mr. Herman erred in law by acting as a mediator between the applicant and the union, and then as an arbitrator in respect of the same grievance.
[4] The applicant also alleges bias or reasonable apprehension of bias on the arbitrator’s part by reason of his comment to the applicant during mediation that “you better settle with the union because it looks like you are going to lose”.
[5] Specifically, the applicant claims that by acting as both mediator and arbitrator, Mr. Herman acted contrary to s.4.8(5) of the Statutory Powers Procedure Act. However, the Statutory Powers Procedure Act does not apply to a proceeding before an arbitrator under the Labour Relations Act. Section 48(14) of that Act expressly permits an arbitrator to act as a mediator at any stage during the arbitration with the consent of the parties. There is no denial of natural justice when the purported denial of a right is permitted by statute. Moreover, in this case the arbitrator conducted the mediation and arbitration with the consent of the parties as contemplated by s.48(14) of the Labour Relations Act.
[6] The applicant specifically confirmed today that he agreed to the mediation, understood that his offer to the union was not accepted and took part in the arbitration proceeding. It is noteworthy as well that the applicant did not object to the mediation/arbitration process at any time prior to the deliverance of his revised factum on October 31, 2006.
[7] As to the allegation of bias, the test is a high one. There is a presumption that adjudicators will carry out their responsibilities fairly and impartially. That presumption can only be displaced with cogent evidence. See R. v. R.D.S., 1997 324 (SCC), [1997] S.C.J. No. 84 at paras. 113 & 117.
[8] Even assuming the arbitrator said what the applicant alleges he did, this statement does not indicate bias since it was made in the context and during the course of the mediation. No representative of the union was present at the time the statement was made.
[9] We agree with the respondents that the alleged statement represented a tentative opinion only. As well, the applicant did not allege bias at the time the statement was made.
[10] The applicant has not established that Mr. Herman exhibited such a degree of prejudgment or predisposition to one side that it gave rise to a reasonable apprehension that he was or would be unresponsive to the evidence and arguments raised by both parties.
[11] Accordingly, in all of the circumstances, the application for judicial review is dismissed with costs to the respondents in the all-inclusive amount of $1,500.00.
CHAPNIK J.
SWINTON J.
LINHARES DE SOUSA J.
Date of Reasons for Judgment: December 14, 2006
Date of Release: December 15, 2006
COURT FILE NO.: 125/06
DATE: 20061214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, SWINTON AND LINHARES DE SOUSA
B E T W E E N:
SANTA FE MASONRY, SANTA FE MASONRY INC., and EMILIO AMENDOLA, carrying on business as CAN-AM MASONRY
Applicant
- and -
BRICKLAYERS, MASONS INDEPENDENT UNION OF CANADA, LOCAL 1 and UNIVERSAL WORKERS UNION, LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 and MASONRY COUNCIL OF UNIONS OF TORONTO AND VICINITY and ROBERT J. HERMAN
Respondents
ORAL REASONS FOR JUDGMENT
CHAPNIK J.
Date of Reasons for Judgment: December 14, 2006
Date of Release: December 15, 2006