Court File and Parties
CITATION: City of Toronto v. Canadian Union of Public Employees, 2011 ONSC 2343
DIVISIONAL COURT FILE NO.: 261/10
DATE: 20110412
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, BALTMAN AND LEDERER JJ.
BETWEEN:
CITY OF TORONTO Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and ARBITRATOR SUSAN STEWART Respondent
Counsel: Ian Solomon, for the Applicant Douglas J. Wray, for the Respondent, Canadian Union of Public Employees, Local 79
HEARD at Toronto: April 12, 2011
Oral Reasons for Judgment
BALTMAN J. (orally)
[1] We reject the applicant’s submission that the locating function does not constitute “work” within the meaning of Article 23.01. Whether one categorizes the locating function previously performed by the Inspector as ancillary or merely a “task”, it was part of the Inspector’s job duties. Moreover, it has not been eliminated, but rather transferred to the City contractors, suggesting it remains a legitimate and necessary function and therefore properly considered to be work.
[2] As for the question of remedy, the jurisprudence confirms that the standard of review is reasonableness, even where, as here, the Arbitrator under a Collective Agreement applied common law principles (see Community Nursing Home - Port Perry v. Ontario Nurses’ Association et al., (2010) 193 L.A.C. (4th) 161 (Div. Ct.) and *Ontario (Ministry of Community & Social Services) v. Ontario (Grievance Settlement Board)*, 2005 4848 (ON SCDC), 137 L.A.C. (4th) 1 (Div. Ct.)).
[3] On the issue of damages, the Arbitrator concluded that damages should act as an incentive for compliance. That determination is consistent with prevailing jurisprudence and cannot be said to be unreasonable.
[4] The only remaining issue is the quantum of the damages. While we might take issue with the methodology used, it is clear that the Arbitrator was trying to create an incentive for compliance. It was not unreasonable for her to do so by calculating a figure that bears some relationship to the value that the work represents.
[5] As a result, we would not interfere with the award. The application is dismissed.
FERRIER J.
COSTS
[6] The application is dismissed for oral reasons delivered this day. Costs to the respondent fixed at $4,000 all inclusive.
FERRIER J.
BALTMAN J.
LEDERER J.
Date of Reasons for Judgment: April 12, 2011
Date of Release: April 15, 2011
CITATION: City of Toronto v. Canadian Union of Public Employees, 2011 ONSC 2343
DIVISIONAL COURT FILE NO.: 261/10
DATE: 20110412
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, BALTMAN AND LEDERER JJ.
BETWEEN:
CITY OF TORONTO Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and ARBITRATOR SUSAN STEWART Respondent
ORAL REASONS FOR JUDGMENT
BALTMAN J.
Date of Reasons for Judgment: April 12, 2011
Date of Release: April 15, 2011