Wong v. The Globe & Mail, 2013 ONSC 2993

minicounsel

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Molloy, Swinton and Sachs JJ.

May 31, 2013

115 O.R. (3d) 790 | 2013 ONSC 2993

Case Summary

Employment — Labour relations — Grievance arbitration — Union filing grievance on behalf of applicant following her dismissal — Mediation and arbitration resulting in settlement embodied in memorandum of agreement ("MOA") between union and employer — Employer subsequently initiating hearing before arbitrator and claiming that applicant had breached non-disclosure provision in MOA — Arbitrator dismissing motion by applicant for intervenor status so that she could be represented by her own lawyer — Arbitrator finding that union was willing to fully represent applicant and that there was no apparent divergence of interest between them — Applicant subsequently moving for exclusive standing and seeking to have arbitrator recuse herself because of reasonable apprehension of bias — Arbitrator not erring in finding that issue of exclusive standing was res judicata and that applicant had no standing to bring recusal motion — Application for judicial review premature.

The union filed grievances on behalf of the applicant after her employment was terminated. The grievances proceeded to mediation and arbitration, resulting in a settlement that was embodied in a memorandum of agreement ("MOA") between the union and the employer. The MOA prohibited the applicant from disclosing the terms of the settlement and provided that the arbitrator remained [page791] seized to determine if there was a breach of the non-disclosure requirement. The employer initiated a hearing before the arbitrator, claiming that the applicant had breached her non-disclosure obligations and seeking enforcement of the MOA against the applicant only. The arbitrator dismissed a motion by the applicant for independent intervenor status so that she could be represented by her own lawyer. The applicant did not seek judicial review of that interim award but subsequently moved for exclusive standing in the arbitration hearing and to have the arbitrator recuse herself because of a reasonable apprehension of bias. Counsel for the applicant argued that there was a divergence of interests between the applicant and the union because of the union's position on certain issues relating to her defence, including its refusal to advance the motion for recusal. The arbitrator held that the issue of standing was res judicata and that the applicant had no standing to bring the recusal motion. The applicant applied for judicial review of that interim award.

Held, the application should be dismissed.

The arbitrator's conclusion that the issue of standing was res judicata was reasonable, given that the parties remained the same and they were proceeding under the same collective agreement and the MOA. Moreover, cases in which an individual employee has been granted standing, as a matter of natural justice, have been ones in which the union is taking a position in the arbitration that is adverse to the individual employee's interests. A difference of opinion between a grievor and the union about the manner in which a case is to be advanced or defended does not entitle a grievor to independent standing in the grievance and arbitration process, let alone allow him or her to displace the union in the carriage of the proceeding. The arbitrator reasonably concluded that the jurisdiction to assess the adequacy of the union's representation lay with the Ontario Labour Relations Board, not with her. Given the arbitrator's ruling on standing, she reasonably refused to determine the motion for recusal. The applicant had no standing to bring this issue before the arbitrator, and neither of the parties to the arbitration proceeding sought to have this issue determined.

The application for judicial review was premature. Specifically, it was premature to determine any allegation that the applicant would be denied natural justice if the proceeding continued with union carriage. Similarly, the request for an order prohibiting the arbitrator from proceeding because of a reasonable apprehension of bias was premature, given the fact that the applicant agreed in the MOA that the arbitrator would arbitrate the dispute. The court should have the benefit of the arbitrator's full reasoning and final decision before entertaining any judicial review application founded on an allegation of reasonable apprehension of bias.

Hoogendoorn v. Greening Metal Products and Screening Equipment Co., 1967 20 (SCC), [1968] S.C.R. 30, [1967] S.C.J. No. 75, 65 D.L.R. (2d) 641, 67 CLLC Â14,064 at 305; Yashin v. National Hockey League, 2000 22620 (ON SC), [2000] O.J. No. 3306, 192 D.L.R. (4th) 747, [2000] O.T.C. 681, 99 A.C.W.S. (3d) 438 (Div. Ct.); Yee v. Trent University, [2010] O.J. No. 2697, 2010 ONSC 3307, 320 D.L.R. (4th) 746, 195 L.A.C. (4th) 97 (Div. Ct.), distd

Other cases referred to

3M Canada Inc. v. CAW-Canada, Local 27 (Chapman Grievance), 1997 25010 (ON LA), [1997] O.L.A.A. No. 582, 64 L.A.C. (4th) 213, 48 C.L.A.S. 383 (Knopf); Air Canada v. Lorenz (T.D.), 1999 9373 (FC), [1999] F.C.J. No. 1383, [2000] 1 F.C. 494, 175 F.T.R. 211, 91 A.C.W.S. (3d) 411 (T.D.); [page792] Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, 2011EXP-3798, J.E. 2011-2083, 424 N.R. 70, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, 519 A.R. 1, 208 A.C.W.S. (3d) 434; Bradley and Ottawa Professional Firefighters Assn. (Re), 1967 160 (ON CA), [1967] 2 O.R. 311, [1967] O.J. No. 1017, 63 D.L.R. (2d) 376, 67 CLLC Â14,043 at 202 (C.A.); C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J. No. 274, 2010 FCA 61, [2011] 2 F.C.R. 332, 400 N.R. 367, 2011EXP-3678; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-22, 164 A.C.W.S. (3d) 727; Durham Regional Police Assn. v. Durham (Regional Municipality of Durham Police Services Board), [2006] O.J. No. 4852, 218 O.A.C. 261, 153 A.C.W.S. (3d) 986, 2006 40787 (Div. Ct.); Gilinsky v. Carrier, [2012] O.J. No. 4922, 2012 ONSC 5497 (Div. Ct.); Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1, [2006] O.J. No. 1756, 267 D.L.R. (4th) 509, 212 O.A.C. 131, 49 C.C.E.L. (3d) 205, [2006] CLLC Â220-032, 150 L.A.C. (4th) 385, 147 A.C.W.S. (3d) 737 (C.A.); Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 295 O.A.C. 164, 40 Admin. L.R. (5th) 307, 355 D.L.R. (4th) 518, 220 A.C.W.S. (3d) 240; Woldetsadik v. Yonge Street Hotels (c.o.b. Courtyard by Marriott Downtown Toronto), [2012] O.J. No. 1074, 2012 ONSC 1580 (Div. Ct.)

Statutes referred to

Arbitration Act, 1991, S.O. 1991, c. 17, s. 1 [as am.]

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A [as am.], ss. 48 [as am.], (15), (20), 74

APPLICATION for judicial review of an interim award of the arbitrator.

David W. Scott, Q.C., and Peter Thompson, Q.C., for applicant.

Stephen J. Shamie and Jodi Gallagher-Healy, for respondent Globe & Mail.

Tim Gleason and Sean Dewart, for the respondent union.

The judgment of the court was delivered by

SWINTON J.: —

Overview

1The applicant, Jan Wong, brought an application for judicial review of the interim arbitration award of Arbitrator Louisa Davie (the "Arbitrator") dated February 8, 2013, which dismissed a motion by the applicant seeking exclusive carriage to defend herself in the arbitration hearing and refused to consider a motion that the Arbitrator recuse herself on the grounds of reasonable apprehension of bias.

2At the end of oral argument of the application, the Divisional Court announced its decision to dismiss the application, with reasons to follow, in order to allow the parties to proceed [page793] with a further day of the arbitration hearing scheduled for May 30, 2013. These are the reasons for the dismissal.

Factual Background

3For many years, the applicant was employed as a reporter at the Globe & Mail (the "Globe"). Her employment was terminated in June 2008 following a lengthy period when she had been absent from work because of depression.

4The applicant was represented by the Communications, Energy and Paperworkers Union of Canada, Local 87-M (the "Union"). It filed grievances on her behalf because of the Globe's failure to pay sick leave and the termination of her employment.

5The grievances proceeded to mediation and arbitration before the Arbitrator on two days, resulting in a Memorandum of Agreement ("MOA") dated September 24, 2008 that settled the applicant's grievances. The MOA is between the Globe and the Union, but was also signed by the applicant.

6The MOA provided for certain payments to the applicant by the Globe, provided the terms of the settlement were kept confidential. Key to the present application for judicial review are paras. 6 and 8 of the MOA, which state:

With the exception of paragraph 5, the parties agree not to disclose the terms of this settlement, including Appendix A to anyone other than their legal or financial advisors, Manulife and the Grievor's immediate family.
Should the Grievor breach the obligations set out in paras. 5 and 6 above, Arbitrator Davie shall remain seized to determine if there is a breach and, if she so finds, the Grievor will have an obligation to pay back to the Employer all payments paid to the Grievor under paragraph 3.

Paragraph 13 stated that the Arbitrator remain seized of all matters.

7The applicant published a book about her experience with workplace depression in May 2012, and gave some interviews to the media. This led the Globe to initiate a hearing before the Arbitrator in accordance with para. 8 of the MOA on the grounds that the applicant had breached her non-disclosure obligations under the MOA. The Globe seeks enforcement of the MOA only as against the applicant.

8On July 11, 2012, the applicant made a motion to the Arbitrator, with the consent of the Union, seeking independent intervenor status in the hearing, so that she could be represented by her own lawyer and have full rights of participation. However, the Union would continue to have carriage of the defense. The Globe opposed this motion. [page794]

9The Arbitrator denied the motion in an interim award dated July 25, 2012. She noted that there was no right to independent status for the applicant in the MOA. She rejected the argument that the rules of natural justice required separate representation, both because of the willingness of the Union to fully represent the applicant and the lack of any apparent divergence of interests between the Union and the applicant. She concluded that the Union had exclusive carriage of the matter, since the MOA had been entered into within the confines of the collective agreement and at a time when the applicant was a member of the bargaining unit and represented by the Union.

10The applicant did not seek judicial review of this award. However, when the arbitration hearing resumed on February 8, 2013, the applicant's new counsel brought two motions: first, the applicant now sought exclusive standing in the arbitration hearing; and second, she sought to have the Arbitrator recuse herself because of a reasonable apprehension of bias. At this point, counsel for the applicant argued that there was a divergence of interests between the applicant and the Union because of the Union's position on certain issues relating to her defence, including its refusal to advance the motion for recusal.

11The Arbitrator held that she was "without jurisdiction" to hear the two motions. With respect to the motion for exclusive standing, she accepted the argument of the Globe and the Union that the issue of standing was res judicata, because she had already determined the applicant was not entitled to independent legal representation. The Arbitrator refused to deal with the allegation of an adversity of interest between the Union and the applicant, because the Ontario Labour Relations Board (the "OLRB") has exclusive jurisdiction to determine if the Union has breached its statutory obligations with respect to fair representation. She noted that her jurisdiction stemmed from the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "LRA"), the collective agreement and the MOA, and she rejected an argument that she had jurisdiction to deal with an alleged contract between the applicant and the Union dated July 5, 2012 governing separate representation.

12Finally, the Arbitrator refused to deal with the recusal motion, as the applicant had no standing to bring such a motion.

The Application for Judicial Review

13The applicant sought judicial review of this second interim award. She argued that the Arbitrator erred in finding that she had no jurisdiction to grant the applicant standing and in failing to deal with the recusal motion, and she sought an [page795] order to prohibit the Arbitrator from continuing to preside at the hearing.

14The Globe and the Union argued that the applicant has no standing to pursue this application for judicial review. As well, they argued that the application was premature and should not be determined on its merits. They also argued that much of the affidavit material filed by the applicant is not admissible on this application for judicial review. Finally, on the merits, they argued that the decision of the Arbitrator respecting the applicant's lack of standing in the arbitration is reasonable.

Analysis

15Assuming, without deciding, that the applicant has standing to bring this application for judicial review, the application is dismissed because the decision of the Arbitrator is not only reasonable, but indeed, correct on the issue of the applicant's lack of standing at the arbitration hearing. Moreover, the application for judicial review is premature. Given these conclusions, we need not rule on the admissibility of the applicant's affidavit evidence.

The standing decision

16The applicant argues that the standard of review with respect to the Arbitrator's ruling on standing is correctness because the Arbitrator concluded that she had no jurisdiction to grant standing to the applicant. Given that an issue of jurisdiction is involved, the standard of review is said to be correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at para. 59).

17I agree with the respondents' submission that the standard of review is reasonableness. The fact that the Arbitrator used the term "jurisdiction" to describe her decision does not attract correctness review by this court (see Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1, [2006] O.J. No. 1756 (C.A.), at para. 30). The Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61 makes it clear that "true" questions of jurisdiction that attract correctness review will be exceptional (at para. 42).

18The Arbitrator was determining an issue with respect to standing in the arbitration proceeding. When she said that she had no jurisdiction to determine the motions, she was, in effect, stating that the motions were not arbitrable. Arbitrators' determinations of arbitrability have been reviewed on a standard of [page796] reasonableness (Seneca College, above at paras. 48, 69; Durham Regional Police Assn. v. Durham (Regional Municipality of Durham Police Services Board), [2006] O.J. No. 4852, 2006 40787 (Div. Ct.), at para. 16).

19In coming to her decision, the Arbitrator had to consider the effect of her own prior award, so as to determine whether the issue of standing was res judicata. She also had to consider the MOA, the collective bargaining regime and the LRA. All these are matters within the specialized expertise of an arbitrator and call for review on a reasonableness standard.

20I now turn to the application of that standard to the standing decision. The Arbitrator applied the doctrine of res judicata, concluding that the issue of the applicant's independent standing had been determined in her earlier ruling.

21That was a reasonable conclusion, given that the parties remained the same, and they were proceeding under the same collective agreement and the MOA. If the applicant was unhappy with that earlier ruling, she could have sought judicial review, but she did not do so.

22The applicant argued before the Arbitrator that there was now a divergence of interests between her and the Union which justified exclusive standing for her because she took issue with the way the Union proposed to defend the case. She relies on Hoogendoorn v. Greening Metal Products and Screening Equipment Co., 1967 20 (SCC), [1968] S.C.R. 30, [1967] S.C.J. No. 75, where the Supreme Court held that Mr. Hoogendoorn should have been given notice and a chance to make submissions in an arbitration hearing as a matter of natural justice, because his interests diverged from the Union's. In that case, the Union sought his dismissal because of his refusal to authorize deduction of union dues.

23Relying on Hoogendoorn and passages in Yashin v. National Hockey League, 2000 22620 (ON SC), [2000] O.J. No. 3306, 192 D.L.R. (4th) 747 (Div. Ct.) and Yee v. Trent University, [2010] O.J. No. 2697, 2010 ONSC 3307 (Div. Ct.), the applicant submits that the circumstances demonstrate the existence of major conflicts between her and the Union's counsel, giving rise to a reasonable apprehension of inadequate representation. In order to give her due process, she should be granted standing in the arbitration hearing.

24Neither Yashin nor Yee dealt with the issue of standing before an arbitration board. Each dealt with the standing of an individual employee to seek judicial review of an arbitration award when the union has refused to do so. In the present case, [page797] the court has chosen not to deal with the issue of standing to review an award.

25More important here is the line of cases dealing with individual standing at an arbitration hearing. Cases in which an individual employee has been granted standing, as a matter of natural justice, have been ones in which the union is taking a position in the arbitration that is adverse to the individual's employment interests. For example, in Hoogendoorn, the union brought a grievance seeking to have the individual employee dismissed for failing to comply with a mandatory payment of dues provisions. The majority reasons in the Supreme Court of Canada state that "[o]n the facts it is obvious that the proceeding was aimed entirely at securing Hoogendoorn's dismissal" (at p. 38 S.C.R.), and the union took a "position completely adverse to Hoogendoorn", as it wanted him dismissed from employment (at p. 39 S.C.R.). Thus, he should have been given notice and an opportunity to participate in the hearing.

26Similarly, where a union pursues a grievance challenging a job competition on behalf of the unsuccessful employee, the incumbent employee can seek independent standing because the union is taking a position adverse to his or her interests (Bradley and Ottawa Professional Firefighters Assn. (Re), 1967 160 (ON CA), [1967] 2 O.R. 311, [1967] O.J. No. 1017 (C.A.)).

27In the present case, the Union has indicated that it will represent the applicant in the hearing, and it has retained experienced counsel for the proceeding. This is not a situation like Hoogendoorn, as the Union does not seek a result adverse to the applicant.

28Under the Canadian system of labour relations, it is the Union that has carriage of the grievance and the arbitration procedure unless there are specific provisions in the collective agreement giving the individual a right to proceed. There are no provisions in the collective agreement between the Globe and the Union giving such rights to an individual. A difference of opinion between a grievor and the union about how a case should be advanced or defended does not entitle a grievor to independent standing in the grievance and arbitration process, let alone allow him or her to displace the union in the carriage of the proceeding (Woldetsadik v. Yonge Street Hotels (c.o.b. Courtyard by Marriott Downtown Toronto), [2012] O.J. No. 1074, 2012 ONSC 1580 (Div. Ct.), at para. 8; Gilinsky v. Carrier, [2012] O.J. No. 4922, 2012 ONSC 5497 (Div. Ct.), at para. 7).

29The Arbitrator reasonably concluded that the jurisdiction to assess the adequacy of the Union's representation lies with [page798] the OLRB, not with her. Pursuant to s. 74 of the LRA, a union has a duty of fair representation to bargaining unit members:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

30An individual who claims there has been a violation of this provision can bring an unfair labour practice complaint to the OLRB. The OLRB can provide an appropriate remedy, including an order to the union to provide the individual with counsel of her choice (see 3M Canada Inc. v. CAW-Canada, Local 27 (Chapman Grievance), 1997 25010 (ON LA), [1997] O.L.A.A. No. 582, 64 L.A.C. (4th) 213 (Knopf), at para. 28). I note that the applicant in the present case has not pursued a complaint to the OLRB.

31The applicant argues that an arbitrator can and should determine matters related to "due process", including allegations of conflict of interest between the grievor and the union and other circumstances giving rise to a reasonable apprehension of inadequate representation by the union. If she is correct, an arbitrator would be put in the awkward, if not impossible position of having to rule on the quality of the union's representation in the course of an ongoing dispute with the employer. For example, in the present case, the Arbitrator would be asked to weigh the differing opinions of the applicant and Union counsel on the strength, advisability and ethics of advancing certain positions. The determination of the adequacy of the union's representation is more appropriately left to the OLRB for resolution, as this Arbitrator and others have found (see, for example, 3M Canada above, at paras. 33-34).

32Before this court, the applicant argued that she has a contractual right to arbitrate the claim by the Globe, as she is a contracting party with the Globe under para. 8 of the MOA. She submits that this two-party "side agreement" falls outside the ambit of topics covered by the collective agreement between the Globe and the Union and constitutes an arbitration agreement as defined in s. 1 of the Arbitration Act, 1991, S.O. 1991, c. 17. Alternatively, if the MOA is to be considered part of the collective agreement, the applicant still has a contractual entitlement to act on her own behalf in the arbitration hearing.

33Again, these arguments are inconsistent with the labour relations system established in Ontario. The proceeding before the Arbitrator is clearly an arbitration under s. 48 of the LRA. The MOA, a settlement document to resolve two grievances, [page799] arose in a collective bargaining context, and is not a contract independent of the collective agreement. Moreover, by its terms, the MOA cannot be interpreted as a contract between her and the Globe. As well, s. 48(15) of the LRA provides that an Arbitrator may enforce the written settlement of a grievance.

34Finally, s. 48(20) of the LRA provides that the Arbitration Act, 1991 does not apply to proceedings before an arbitrator acting under s. 48 of the LRA.

35In sum, the Arbitrator reached a reasonable, and indeed, correct decision on the exclusive standing motion. The parties to the arbitration proceeding before her are the Union and the Globe.

36Given the Arbitrator's ruling on standing, she reasonably refused to determine the motion for recusal. The applicant had no standing to bring such an issue before the Arbitrator, and neither the Union nor the Globe, the parties to the arbitration proceeding, seeks to have this issue determined.

Prematurity

37The respondents argued that the application for judicial review is premature. They relied on the longstanding principle that courts will not intervene through an application for judicial review during the course of the proceedings of an administrative tribunal, unless there are exceptional circumstances (Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, at para. 70; C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J. No. 274, 2010 FCA 61, at paras. 30-33). The reluctance to intervene arises from concerns about the fragmentation of the administrative process and increased costs and delay and respect for the administrative process.

38In Volochay, the Ontario Court of Appeal recently stated that issues characterized as questions of jurisdiction or allegations of a denial of procedural fairness are not automatically "exceptional circumstances" warranting early judicial intervention (at paras. 67 and 70). Moreover, if there is an adequate alternative remedy, the courts should not intervene before the administrative process has run its course.

39In the present application, we considered and ultimately determined the application on the merits, because there was an initial concern as to whether the arbitration process would be fatally flawed if the applicant were denied standing and the arbitration proceeded.

40However, having heard and rejected the applicant's argument on standing, we have also concluded that the present [page800] application for judicial review is premature. In particular, it is premature to determine any allegation that the applicant will be denied natural justice if the proceeding continues with Union carriage. It is impossible to know at this early stage of the arbitration proceeding whether the Union's representation of the applicant will be adequate or not. More importantly, the applicant has an alternative remedy through the OLRB to challenge the quality of Union representation, which she has not pursued.

41Similarly, the request for an order prohibiting the Arbitrator from proceeding because of a reasonable apprehension of bias is premature, especially given the fact that the applicant agreed in the MOA that the Arbitrator would arbitrate the dispute in question. The court should have the benefit of the Arbitrator's full reasoning and final decision prior to entertaining any judicial review application founded on an allegation of reasonable apprehension of bias (Air Canada v. Lorenz (T.D.), 1999 9373 (FC), [1999] F.C.J. No. 1383, [2000] 1 F.C. 494 (T.D.)).

Conclusion

42For these reasons, the application for judicial review is dismissed. The Union and the Globe both sought costs of $15,000. Given that there was duplication between the work and argument of these two parties, we would reduce the amount of costs each should receive to an amount that is fair and reasonable for the applicant to pay in the circumstances. Accordingly, the applicant shall pay costs of $7,500 all inclusive to both the Union and the Globe.

Application dismissed.

End of Document