COURT FILE NO.: 194/08

DATE: 20081015

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ferrier, wilson and lederman jj.

B E T W E E N:

YORK UNIVERSITY

Applicant

• and -

YORK UNIVERSITY STAFF ASSOCIATION

Respondent

Christopher G. Riggs, Q.C. and

John-Paul Alexandrowicz, for the Applicant

Steven Barrett and

Tim Gleason, for the Respondent

HEARD at Toronto: October 15, 2008

LEDERMAN J.: (Orally)

1By agreement of the parties, the preliminary question before the arbitrator was whether s.54 of the Ontario Labour Relations Act means that:

(a) any collective agreement may not discriminate contrary to the Charter or,

(b) only collective agreements that otherwise have, as a party, an employer to which the Charter applies, may not discriminate contrary to the Charter.

2The arbitrator concluded that s.54 applies to all collective agreements in Ontario including the one between the applicant and the respondent. He stated that he was engaged in the exercise of interpreting s.54 and found that s.54, which makes reference to the Human Rights Code and the Charter, was defining what the legislature means by discrimination. At this point, the arbitrator was not asked to consider the practical implications of what that means and the impact of s.1 of the Charter.

3The arbitrator has yet to decide the ultimate question between the parties, that is, whether mandatory retirement prior to the amendments to the Human Rights Code was unlawful. Courts have repeatedly stated that, absent the showing of exceptional or extraordinary circumstances demonstrating that the application must be heard, they should not entertain applications prior to the completion of proceedings for fear that fragmented proceedings result in unnecessary delay and expense. (see Ontario College of Art v. Ontario Human Rights Commission, 1993 3430 (ON SCDC), [1993] O.J. No. 61 (Div. Ct.)). The arbitrator ruled, as a preliminary question, that s.54 of the Ontario Labour Relations Act applies, but he has yet to rule on how it applies. It is best to have the arbitrator rule on all issues before any application for judicial review is entertained by this Court.

4The application is therefore quashed as premature.

FERRIER J.

5It is unanimous in our view that, in the circumstances described in the discussion with counsel that there should be no costs of this appearance today. Each party will bear its own costs of today’s appearance.

LEDERMAN J.

FERRIER J.

JANET WILSON J.

Date of Reasons for Judgment: October 15, 2008

Date of Release: October 20, 2008

COURT FILE NO.: 194/08

DATE: 20081015

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ferrier, wilson and lederman jj.