Superior Court of Justice - Divisional Court
DIVISIONAL COURT FILE NO.: 494/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND ASTON JJ.
Parties
BETWEEN:
ELZBIETA OLSZEWSKA
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, UNITED STEEL, PAPER AND FORESTRY, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION LOCAL 1998, AND THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Respondents
Counsel
In Person
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
Mark Rowlinson, for the Respondent, United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1998
Frank Cesario, for the Respondent, The Governing Council of the University of Toronto
HEARD at Toronto: May 9, 2011
Oral Reasons for Judgment
aston j. (ORALLY)
1This is an application for judicial review of the Ontario Labour Relation Board’s decision dated February 11, 2010 and its reconsideration decision dated May 12, 2010, in which the Board found that the Union had not breached its obligation to represent the applicant fairly under s.74 of the Labour Relations Act, in not pursuing the applicant’s grievance.
2Our task as a Court is to review the record before the Tribunal without regard to the fresh evidence in the applicant’s lengthy affidavit of January 14, 2011.
3The parties agree that the applicable standard of review is reasonableness. The applicant conflates or confuses two separate matters: first, whether the University decision was justified and second, whether the Union acted arbitrarily in failing to adequately investigate the basis of the University’s decision.
4The narrow issue for the Board was whether the Union violated s.74 of the Labour Relations Act. The Board’s mandate did not extend to whether the University decision was justified. The applicant’s real complaint is that the University’s decision was unreasonable and not justified by evidence. However, she has reframed her objection to the merits of her layoff, and her subsequent dismissal, as a claim against her Union for not making an adequate challenge to the University’s evidence. In the initial stages, the Union took up the applicant’s cause and shared her suspicion about the University’s motivation. However, the Union became persuaded by the evidence from the University that lack of funding was a genuine issue and that the grievance would fail.
5The Board specifically considered the applicant’s position. See para. 37 of its Reasons. The Board recognized the Union’s obligation to provide a satisfactory reason for not pursuing the applicant’s grievance to arbitration, especially considering her long employment history and the serious personal consequences to her. See para. 43 of the Board’s decision. The Board concluded that the Union had met its statutory obligation to the applicant and did not act “arbitrarily” within the meaning of the jurisprudence. See paras. 44 through 52 inclusive of the Reasons.
6There was evidence to support the Board’s ultimate conclusion at paragraph 53. The Board did not misapprehend the evidence or ignore material evidence. It applied the correct legal test. The applicant has failed to demonstrate that the Board’s decision is unreasonable, nor has the applicant established a denial of procedural fairness amounting to a denial of natural justice. First, the refusal to admit Dr. Trehub’s affidavit was justified given the affiant’s non-attendance and the late production. See also the additional reasons at para. 2 of the Board’s decision. Second, Mr. Revich was at the hearing but was not called to give viva voce evidence and in any event, the applicant has failed to demonstrate how his written statement is relevant to the Union’s conduct. Finally, the reconsideration decision is not an appeal process. The grant documents could have been adduced in the first instance.
7For these reasons, the application is dismissed. No award as to costs.
ASTON J.
JENNINGS J.
FERRIER J.
Date of Reasons for Judgment: May 9, 2011
Date of Release: May 17, 2011
CITATION: Olszewska v. Ontario Labour Relations Board, 2011 ONSC 2859
DIVISIONAL COURT FILE NO.: 494/10
DATE: 20110509
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND ASTON JJ.
BETWEEN:
ELZBIETA OLSZEWSKA
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, UNITED STEEL, PAPER AND FORESTRY, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION LOCAL 1998, AND THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Respondents
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: May 9, 2011
Date of Release: May 17, 2011