City of Hamilton v. Amalgamated Transit Union, 2013 ONSC 2961
CITATION: City of Hamilton v. Amalgamated Transit Union, 2013 ONSC 2961
COURT FILE NO.: DC 12-414JR (Hamilton)
DATE: 2013-05-21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF an Application for Judicial Review pursuant to the Judicial Review Procedure Act, 1990, c.J.1, as amended;
AND IN THE MATTER OF the Labour Relations Act, 1995, S.O. 1995, c.1, Sch.A, as amended;
AND IN THE MATTER OF a decision of Arbitrator Jasbir Parmar dated February 16, 2012;
AND IN THE MATTER OF a decision of Arbitrator Jasbir Parmar dated July 29, 2012
BETWEEN:
The City of Hamilton (Hamilton Street Railway) Moving Party (Applicant)
– and –
The Amalgamated Transit Union, Local 107 and Jasbir Parmar Respondents
COUNSEL:
Stephen A. McArthur and Janet M. Callfas, for the Moving Party (Applicant)
Beverley J. Burns and Lisa Feinberg, for the Respondent, Amalgamated Transit Union
HEARD: March 27, 2013
The Honourable Mr. Justice Patrick J. Flynn
REASONS FOR RULING ON MOTIONS
Overview
[1] These motions are the recent skirmishes in an extended acrimonious labour dispute. This time the dispute arose when the Applicant, City of Hamilton (Hamilton), is said to have changed the procedure for scheduling bus drivers, which failed to account for the seniority of those drivers. The Respondent, Amalgamated Transit Union (ATU), filed a grievance on February 10, 2009. Arbitration proceeded before Arbitrar, Parmar and the Arbitrator’s decision in favour of ATU was released on February 16, 2012.
[2] Claiming that it was unsure how to implement the decision, Hamilton requested clarification from the Arbitrator. A further hearing was held on the 17^th^ of July 2012 and the Arbitrator issued a supplementary award on July 29, 2012. The Arbitrator upheld her earlier decision and concluded that Hamilton was merely seeking “an opportunity to reargue the merits of the grievance”, which was “completely contrary to the principle of finality”.
[3] On August 3, 10 and 15, 2012, ATU filed further grievances claiming that Hamilton had failed to comply with the decisions of Arbitrator Parmar. Through e-mail correspondence between the parties, ATU agreed on August 23, 2012 to hold those grievances in abeyance pending the judicial review process.
[4] But Hamilton did not implement the changes required by Aribtrator Parmar’s decision and so the Union filed a motion for contempt. That motion is still outstanding in Toronto. The motion for contempt triggered a response by Hamilton which was to commence an application for judicial review of the two decisions of Arbitrator Parmar.
[5] What is before me are motions by each side. By ATU to quash the application for judicial review and by Hamilton to stay Arbitrator Parmar’s decisions. These matters come before me as a single judge of the Divisional Court. These are my reasons for dismissing both motions.
The Motion to Quash the Application for Judicial Review
[6] The application for judicial review is, as I understand it, scheduled to be heard by a full panel of the Divisional Court on June 3, next.
[7] Failing a ruling which quashes the application for judicial review, the Union seeks to have struck all or parts of the Affidavit of Chris Garrish, which was filed by Hamilton in support of its application for judicial review.
[8] ATU argues that the application for judicial review ought to be quashed for three reasons:
(1) Hamilton does not come to court with clean hands;
(2) The application for judicial review was filed with undue delay; and
(3) The filing of the application is an abuse of process.
[9] The ATU’s position is that the application for judicial review be quashed as a mark of disapproval where Hamilton has not acted in good faith or has been less than candid.
[10] As I said in my prefatory remarks, this dispute is acrimonious and of high conflict. Not only does ATU accuse Hamilton of not coming to court with clean hands, but that it is acting in bad faith throughout and merely stalling. ATU protests loudly that its motion is not about money, rather, it is about respecting the Collective Agreement, it is about scheduling and seniority. Apparently scheduling was radically changed in such a way that the grievance was originally required. Not only did the Arbitrator agree with ATU, but when Hamilton sought clarification, the Arbitrator in essence ruled that Hamilton was attempting to introduce new evidence and to re-litigate the matter.
[11] It was also urged upon me that Arbitrator Parmar’s orders for production still haven’t been complied with, nor has the scheduling at the heart of this issue been changed. It seems that these parties enjoy the joust!
[12] There is a disagreement between the parties as to whether or not there was an agreement on a temporary stay or whether the Union simply put new grievances into abeyance. In any event, the ATU accuses Hamilton of misleading the court, while Hamilton flings back the accusation that ATU is being deceitful.
[13] The court may quash an application for judicial review that has been brought with undue delay. Between the initial decision of Parmar and the application for judicial review, there is a period of nine months. And, it is a well recognized principle of labour relations that matters must proceed apace. But the Union argues that there was no reason for the delay and that the second decision of Parmar was unnecessary and that in any event Hamilton failed to act promptly even after the second decision. Hamilton acknowledged its retroactive liability and argues that ATU suffers no prejudice. It claims that it brought the application for judicial review within four months of the second decision and perfected the application within a further two months.
[14] I am not persuaded that I ought to quash the application on this ground.
[15] An application for judicial review can be quashed on the grounds that it constitutes an abuse of process. That abuse of process is most aptly demonstrated in the Hollinger Farms No. 1 Inc. v. Ontario, [2007] O.J. No. 2405 where the Divisional Court dismissed the application for judicial review stating that the Applicant was interested in “frustrating, disrupting and delaying” and therefore was engaging in an abuse of process and that is what the ATU is complaining that Hamilton is doing in this case. But Hamilton claims that the second Parmar ruling was made without jurisdiction. This is also something that ought to be left to the full panel.
[16] ATU asks that the new evidence in Chris Garrish’s Affidavit be struck and that affidavit evidence can only be submitted in “exceptional” and “rare” circumstances where a party demonstrates “the exacting jurisdictional test of a complete absence of evidence on the essential point” before the Arbitrator. Moreover, ATU argues after six days of hearing, the parties had every opportunity to present evidence.
[17] On the other hand, Hamilton argues that the Affidavit does not submit evidence that was not before the Arbitrator. Rather, the purpose in the Affidavit of Chris Garrish is to introduce the record of the proceedings under review which must be filed with the court.
[18] Hamilton does not allow that any part of the Affidavit be struck, that if necessary would concede that paragraphs 27 through 33 and Exhibit “C” could be struck. The law on this point in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.) was summarized in 2009 by the Divisional Court in 142445 Ontario Ltd. v. International Brotherhood, Local 636, [2009] O.J. No. 2011, 95 AdminLR (4^th^) 273 (Div. Ct.), where it was held that affidavit evidence is permitted to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proved by the record. But the panel reminded all that Keeprite continues to apply and concluded at para. 32:
If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be significant incentives for parties to seek judicial review since they could then attempt to reframe the evidence that was before the Arbitrator.
[19] It is interesting to note that Hamilton is not seeking to admit this evidence on the basis that Arbitrator Parmar had a complete absence of evidence, rather, Hamilton seeks to show that Arbitrator Parmar did not have jurisdiction to interpret the Collective Agreement.
The Stay Sought by Hamilton
[20] Hamilton argues that the application for judicial review of the two decisions raises a serious issue. The Applicant is neither frivolous nor vexatious. Moreover, the jurisdiction of an arbitrator to interpret a collective agreement constitutes a serious question to be tried.
[21] But the Union argues that stays are not granted in situations where the party seeking the stay does not come to court with clean hands. Hamilton’s conduct, it says, is vexatious and frivolous in an attempt to once again re-litigate the facts.
[22] The parties are completely at odds with respect to whether or not there is an agreement between them to hold the Arbitrator’s decisions in abeyance.
[23] One thing is clear. Hamilton has not implemented any of Parmar’s rulings and has indicated that it will not do so. Hamilton argues that it will suffer irreparable harm if the stay is not granted because, as employer, would be required to make payments to a large number of employees and would face difficulty recovering the payments from those employees in the event the judicial review succeeded. I am not satisfied on the evidence that was before me that there are indeed a large number of employees or what efforts would be required to recover the payments from those employees. But, Hamilton finally argues that the Union will suffer no harm if the stay is granted for a few months (now mere days) until the judicial review application is heard by a full panel of the Divisional Court. The Union says that Hamilton is off base. It is waiting for scheduling changes as well as payments and it views this case as concerning missed family dinners, rather than simply money.
[24] Hamilton argues that it is important to deal with the second decision of Parmar and that the full panel will determine whether Parmar’s second decision was reasonable. It argues that it is not re-litigating. Moreoever, as to the Affidavit evidence, it argues that it is left to the employer in this case to compile and submit the record for the reviewing court.
[25] Finally, whether or not there is an agreement on staying the grievances or staying the implementation of Parmer’s decisions, it seems to me that Hamilton can make a solid argument that there is an agreement on some part of that and while there is no automatic stay once an application for judicial review has been filed in these circumstances, I am satisfied that the practice is just that.
[26] I am also concerned that the Union argued against the agreement that Hamilton urged upon this court on the basis of a selectively trimmed e-mail chain.
Conclusion
[27] There is much at stake here. And it seems to me that the full Application Record for judicial review available to the full panel of the Divisional Court becomes necessary and considering the issues that the parties have raised.
[28] This matter comes before the full panel on June 3, 2013, less than three weeks from now.
[29] Except for the concession by Hamilton with respect to the four or five paragraphs of Garrish’s Affidavit and the one Exhibit, it seems to me that the right tribunal to hear and determine all of these matters is the full panel of the Divisional Court. It would be presumptively imprudent of me to quash the application before that court and the matter of a stay of the implementation of the Parmar rulings is but an ancillary to that main issue. Accordingly, I decline to rule on these matters. Both motions are dismissed without prejudice to them being argued in the hearing before the Divisional Court and the matter of costs ought to be dealt with before the full panel as well.
[30] Motions dismissed.
P. J. Flynn J.
Released: May 21, 2013
CITATION: City of Hamilton v. Amalgamated Transit Union, 2013 ONSC 2961
COURT FILE NO.: DC 12-414JR (Hamilton)
DATE: 2013-05-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The City of Hamilton (Hamilton Street Railway) Applicant (Moving Party)
– and –
The Amalgamated Transit Union, Local 107 and Jasbir Parmer Respondents
REASONS FOR RULING ON MOTIONS
P. J. Flynn J.
Released: May 21, 2013
/lr