Court File and Parties

CITATION: Woldetsadik v. Yonge Street Hotels, 2012 ONSC 1580

DIVISIONAL COURT FILE NO.: 205/11

DATE: 2012/03/09

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SEBLE WOLDETSADIK, Applicant

v.

YONGE STREET HOTELS cob as COURTYARD BY MARRIOTT DOWNTOWN TORONTO, Respondent

BEFORE: Pepall, Harvison Young and Moore JJ.

COUNSEL: Seble Woldetsadik, on her own behalf

Frank Cesario, for the Respondent

HEARD at Toronto: March 6, 2012

Endorsement

Pepall J.

[1] The Applicant, Seble Woldetsadik, moves under section 21(5) of the Courts of Justice Act R.S.O. 1990, c. C.43 to set aside Swinton J.’s September 30, 2011 decision in which she quashed the Applicant’s judicial review application for lack of standing.

[2] The Applicant was a member of Unite Here, Local 75 (the “Union”), and a former employee of the Respondent Yonge Street Hotels cob Courtyard Marriott Downtown Toronto (the “Respondent Hotel”). She was discharged for cause for breach of trust and the Union pursued a grievance on her behalf. In a 22 page decision, the Arbitrator dismissed the grievance relying in large part on the Applicant’s lack of credibility. The Union did not seek judicial review of the Arbitrator’s award.

[3] The Applicant filed an application with the Ontario Labour Relations Board alleging that the Union had breached its duty of fair representation under s. 74 of the Labour Relations Act, 1995 S.O. 1995, c.1, Sch. A. This application was dismissed.

[4] The Applicant also brought two Small Claims Court actions against the Respondent Hotel both of which have been dismissed.

[5] The Applicant then brought an application for judicial review of the Ontario Labour Relations Board decision. The Respondent Hotel brought a motion to quash on the basis that the Applicant had no standing.

[6] Swinton J. granted the motion to quash on the basis that an individual unionized employee does not have standing to bring an application for judicial review of a labour arbitration award absent exceptional circumstances and there were no such circumstances.

[7] She properly applied Yee v. Trent University 2010 ONSC 3307, [2010] O.J. No 2697 and also considered the issue of exceptional circumstances. She noted: first, that the collective agreement did not confer a right on an employee to pursue a matter to arbitration; second, that the Union had not taken an adverse position to the Applicant in the arbitration; and third, that there was no evidence of deficiency in representation by the Union.

[8] Before us, the Applicant’s submissions mainly focused on the third exception, namely, deficiency of representation by the Union. In the section 74 Labour Relations Act proceeding before the Ontario Labour Relations Board, the Applicant complained, among other things, that the Union failed to acknowledge or listen to her suggestions. As noted in the decision dismissing that application, “it is well established that a union, let alone its counsel, is not required to take instructions from the grievor with respect to how to present a grievance at arbitration” (at para. 11).

[9] Swinton J. was clearly correct both in law and in fact. She was alive to the exceptions described in Yee v. Trent, and, as mentioned, she was satisfied that there was no evidence of deficiency in representation by the Union. The Applicant’s application for judicial review was properly quashed and her motion to set aside Swinton J.’s order is dismissed.

[10] The Respondent Hotel seeks $2500 in substantial indemnity costs or $1750 in partial indemnity costs. In our view, a partial indemnity award is appropriate and the sum of $1750 proposed by the Respondent Hotel is fair and reasonable in the circumstances. Accordingly, the Applicant is to pay the Respondent Hotel the sum of $1750 in costs inclusive of disbursements and H.S.T. within 30 days.

Pepall J.

Harvison Young J.

Moore J.

Date: March 9, 2012