CITATION: Tsoi v. Unite Here, Local 75, Hilton Toronto, 2014 ONSC 1108
DIVISIONAL COURT FILE NO.: 330/12
DATE: 20140219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SACHS AND DALEY JJ.
BETWEEN:
ALBERT TSOI
Applicant
– and –
UNITE HERE, LOCAL 75, HILTON TORONTO, and ONTARIO LABOUR RELATIONS BOARD
Respondents
In Person
Ronald N. Lebi, for the Respondent, Unite Here, Local 75
Michelle A. Alton, for the Respondent, Hilton Toronto
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: February 19, 2014
SACHS J.
[1] The applicant applies for judicial review of a decision of the Ontario Labour Relations Board (the “Board”) dated November 1, 2011. He also seeks judicial review of the Board’s decision denying his Request for Reconsideration, dated May 31, 2012. The decisions relate to the applicant’s allegation that the Union breached the duty of fair representation it owed to the applicant. The applicant asks this court to quash the decisions of the Board and to have his matter sent to arbitration under the Labour Relations Act, S.O. 1995, c. 1 (the “LRA”). Alternatively, he requests that a fresh LRA Consultation hearing be held.
Issues
[2] On this application, the applicant raises two issues:
(i) He asserts that he was denied natural justice and procedural fairness, because in the course of the consultation process, the Board permitted a brief recess before the Union answered a question posed by the adjudicator. Further, he complains that the Union’s answer to the question raised facts that had not been pleaded concerning the distinction between artesian water and plain bottled water.
(ii) The Board erred when it found that the Union did not breach its duty of fair representation under s. 74 of the LRA.
Standard of Review
[3] On questions involving allegations of breach of natural justice, no standard of review analysis is necessary. A proceeding is either procedurally fair or it is not.
[4] On the issue of substance, i.e. whether the Board erred in its assessment of the Union’s duty under s. 74 of the LRA, this is a question of mixed fact and law, involving the Board’s home statute. Thus, the applicable standard of review is reasonableness.
Analysis
The Natural Justice Issue
[5] In this case, the proceeding at issue was a consultation, which is a process that is meant to be less formal than an arbitration. In Consultations, adjudicators lead the proceeding and frequently ask questions. The giving of evidence under oath and cross-examination of witnesses is not usually a feature of Consultations. In this case, the brief recess did not interrupt or involve the presentation of evidence by a sworn witness. There was nothing unfair or improper about the recess, which was taken in order to provide a response to a question asked by the adjudicator. Further, in Consultations, parties are not precluded from making submissions not based on facts set out in their pleadings. The Board’s rules allow for the Board to receive evidence whether it has been pleaded or not. Finally, the applicant did not object at the time and the Board cannot, therefore, be faulted for failing to explain why it received information when no objection was made.
Section 74 Issue
[6] The Board in its Consultation process acted reasonably in concluding that there was no violation of s. 74 of the LRA, in that there was no evidence that the Union represented the applicant in a manner that was “arbitrary, discriminatory or in bad faith.” On its assessment of the merits of a potential grievance, the Union is not required to be correct. Although the Union acknowledges that it was in error in originally stating in its December 16, 2009 letter to the applicant that bottled water was not a product in the vending machines, and may have been further in error when, during the consultation process, it made a distinction between bottled water in the vending machines and artesian water on the in-room minibar menu, such errors do not demonstrate arbitrariness or bad faith on the part of the Union and were not critical to the issue before the Board.
[7] It was reasonable for the Board to conclude that the Union had made a proper investigation and assessment in determining that there had been no contracting out of the minibar service given the qualitative difference in the services provided by the in-room minibar and the coin operated vending machines in the hotel corridors.
Conclusion
[8] For these reasons the application is dismissed.
LEDERMAN J.
COSTS
[9] I have endorsed the Record, “The application is dismissed for oral reasons delivered by Sachs J. No costs.”
SACHS J.
LEDERMAN J.
DALEY J.
Date of Reasons for Judgment: February 19, 2014
Date of Release: February 21, 2014
CITATION: Tsoi v. Unite Here, Local 75, Hilton Toronto, 2014 ONSC 1108
DIVISIONAL COURT FILE NO.: 330/12
DATE: 20140219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SACHS AND DALEY JJ.
BETWEEN:
ALBERT TSOI
Applicant
– and –
UNITE HERE, LOCAL 75, HILTON TORONTO, and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: February 19, 2014
Date of Release: February 21, 2014