COURT FILE NO.: 617/07

DATE: 20080626

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

jennings, molloy and swinton jj.

B E T W E E N:

CANADA POST CORPORATION Applicant

• and -

CANADIAN UNION OF POSTAL WORKERS Respondent

Roy C. Filion, Q.C., and Melanie D. McNaught, for the Applicant Paul J.J. Cavalluzzo and Jo-Anne Pickel, for the Respondent

HEARD at Toronto: June 26, 2008

jennings J.: (Orally)

1Canada Post seeks judicial review of the award of arbitrator von Veh, dated November 12, 2007, in which he held that he had jurisdiction to change the cut-off date for calculating damages found by him in his award dated January 19, 2006.

2Canada Post submits that the arbitrator was functus officio and that he had no jurisdiction to revise his earlier award.

3The Union submits that the arbitrator had the power and the duty to correct a mistake in his earlier award, which is a recognized exception to the principle of functus officio.

BACKGROUND

4The underlying grievance, dated February 9, 1998, alleged that Canada Post breached the Collective Agreement by inter alia, unilaterally contracting out work performed by members of the bargaining unit.

5A hearing before the arbitrator was held on October 3, 2001. It was adjourned by an award issued April 18, 2002, for further written submissions, the arbitrator to remain seized.

6The matter was next brought on before the arbitrator on October 26, 2005. In an award dated January 19, 2006, the arbitrator upheld the grievance.

7In his award, the arbitrator expressed his concern at the delay between the filing of the grievance on February 9, 1998 and its hearing on October 26, 2005. Without asking for or receiving submissions from the parties, he fixed the cut-off date for the calculation of the damages suffered by the members of the bargaining unit at August 11, 2005, the date upon which the grievance was last set down to be heard on October 26, 2005, rather than on February 9, 1998, the date upon which the grievance was filed.

8In his award of January 19, 2006, the arbitrator stated that he remained seized to assist the parties in implementing the award.

9The parties were unable to agree on implementation and the matter came back to the arbitrator on October 31, 2007. Over the objections of Canada Post that the arbitrator was then functus officio, the union made submissions as to the variation of the cut-off date.

10On November 12, 2007, the arbitrator released his award finding that the correct cut-off date should be February 9, 1998, not August 11, 2005.

11He stated that his choice of August 11, 2005 was “… founded on receiving incomplete information on October 26, 2005, leading me to conclude that the Union had not, having filed the grievance of February 9, 1998, taken timely steps to pursue its disposition.”

12The arbitrator found that as a result of the submissions heard on October 31, 2007, he had erred in that conclusion and that the correct date should be February 9, 1998. He determined that he had jurisdiction to amend his earlier award by virtue of Articles 9.99 and 9.102 of the Collective Agreement and sections 16 and 60 of the Canada Labour Code.

STANDARD OF REVIEW

13We accept that the standard of review with respect to the interpretation of the Collective Agreement is reasonableness. However, whether the arbitrator was functus officio is a pure question of law for which the standard is correctness. See Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, para. 50 & 59.

ANALYSIS

14The principle of functus officio is that a decision-maker may not re-open a matter once he or she has made a final decision respecting that matter.

15The leading case in Canada with respect to functus as it applies to administrative tribunals is Chandler v. Alberta Association of Architects (1989), 62 D.L.R. (4th) 577 (S.C.C.).

16Chandler recognized as an exception to the rule, a situation where an error renders a decision a nullity requiring that the Tribunal start afresh. A denial of natural justice can vitiate the whole proceeding rendering it a nullity (see Chandler at p.597).

17The Court in Chandler relied upon the often quoted statement of Lord Reid in Ridge v. Baldwin, [1964] A.C. 40 at p. 79:

“I do not doubt that if an officer or a body realizes that it has acted hastily and reconsiders the whole matter afresh, while affording to the person affected a proper opportunity to present its case, then the latter decision will be valid.”

See also Grier v. Metro-International Trucks Ltd. (1996), 28 O.R. (3d) 67 (Ont. Div. Ct.).

18For the arbitrator to have made a decision of real significance to the parties, without providing the parties with an opportunity to make submissions or present evidence, and as a result coming to a mistaken belief of the facts would amount to a denial of natural justice.

19In our opinion, to avoid that result the arbitrator had the power, and indeed the duty to revisit the issue.

20We find he was correct to do so. He was not functus.

21We also observe that in the situation which pertains here, to require the Union to seek Judicial Review to correct the arbitrator’s error would be an unwarranted use of judicial resources, and would visit upon the parties an expense both unnecessary and unjust, to say nothing of further delaying what is intended to be an expeditious process for resolving workplace disputes.

22In deciding as we have, we are not to be taken as finding that the arbitrator’s interpretation of the powers given to him under the Canada Labour Code and the Collective Agreement, is either reasonable or correct.

23The application for judicial review is dismissed.

COSTS

24I endorse the Record: “The application is dismissed for oral reasons delivered today. Costs fixed at $4,500, payable to the Union forthwith.”

JENNINGS J.

MOLLOY J.

SWINTON J.

Date of Reasons for Judgment: June 26, 2008

Date of Release: July 2, 2008

COURT FILE NO.: 617/07

DATE: 20080626

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

jennings, molloy and swinton jj.