Citation and Court Information
CITATION: Teamsters Local Union No. 230 v. Dufferin Concrete, 2011 ONSC 1032
DIVISIONAL COURT FILE NO.: 610/09
DATE: 20110214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, WILTON-SIEGEL AND HERMAN JJ.
Parties
BETWEEN:
TEAMSTERS LOCAL UNION NO. 230
Applicant
– and –
DUFFERIN CONCRETE and MICHAEL BENDEL
Respondents
-and –
CHRISTIAN LABOUR ASSOCIATION OF CANADA
Intervenor
Counsel and Hearing
Michael C. P. McCreary, for the Applicant
Amanda J. Hunter, for the Respondent, Dufferin Concrete
Elizabeth J. Forster, for the Intervenor, Christian Labour Association of Canada
HEARD at Toronto: February 14, 2011
Oral Reasons for Judgment
SWINTON J. (orally)
[1] The applicant, Teamsters Local Union No. 230 ("the Union"), seeks judicial review of an award of an Arbitrator, dated October 15, 2009, in which the Union's grievance respecting bargaining rights was dismissed for delay.
[2] The Arbitrator relied on Article 7.05 of the collective agreement, which provided, at the time the grievance was filed, "The proceedings of the Arbitration Board will be expedited by the parties hereto…".
[3] The Arbitrator held that Article 7.05 imposed an obligation on the Union, as the party interested in moving the matter forward, to explain the delay in scheduling the resumption of the arbitration hearing between his interim award in March 2008 and June 2009, when Union counsel sought further dates. However, the real delay was between May 2008, when dates were proposed for June 2008 that were not acceptable, and June 2009 when new dates were sought by the Union. No explanation for the delay between May 2008 and June 2009 was given by the Union.
[4] In our view, there was no denial of natural justice. The employer raised the issue of the application of Article 7.05 of the collective agreement in its written submissions, and so the Union had notice.
[5] We are also satisfied that the governing collective agreement was that in effect when the grievance was filed - that is, the agreement made November 21, 2002.
[6] The standard of review is reasonableness with respect to the Arbitrator's interpretation of the collective agreement and his exercise of discretion to dismiss the grievance for delay.
[7] The Arbitrator reasonably concluded that the Union, the party filing the grievance, had an obligation to move it forward, given the language of Article 7.05. In the absence of an explanation for the delay, he dismissed the grievance. While he did not make an express finding of prejudice, it is evident on the record that there was prejudice to the employer and the Christian Labour Association of Canada, the Intervenor, from the delay, having regard to the nature of the dispute and the impact of the remedy on negotiations, bargaining rights and employee representation.
[8] The remedy of dismissal of the grievance was a reasonable one in the circumstances given the length of the delay, the lack of any reasonable explanation for the delay and the prejudice to the employer and the Intervenor. It did not constitute an amendment of the collective agreement.
[9] Therefore, the application for judicial review is dismissed. Moreover, judicial review is a discretionary remedy. Given the delay in pursuing the application for judicial review, which was not perfected until September 3, 2010, this would not be an appropriate case in any event to grant judicial review.
COSTS
[10] I have endorsed the Application Record, "This application is dismissed for oral reasons given today. Costs to Dufferin Concrete fixed at $5,000 and to CLAC fixed at $3,000."
SWINTON J.
WILTON-SIEGEL J.
HERMAN J.
Date of Reasons for Judgment: February 14, 2011
Date of Release: February 24, 2011
CITATION: Teamsters Local Union No. 230 v. Dufferin Concrete, 2011 ONSC 1032
DIVISIONAL COURT FILE NO.: 610/09
DATE: 20110214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, WILTON-SIEGEL AND HERMAN JJ.
BETWEEN:
TEAMSTERS LOCAL UNION NO. 230
Applicant
– and –
DUFFERIN CONCRETE and MICHAEL BENDEL
Respondents
-and –
CHRISTIAN LABOUR ASSOCIATION OF CANADA
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: February 14, 2011
Date of Release: February 24, 2011