United Food and Commercial Workers Canada, Local 175 v. Olymel, Barton
CITATION: United Food and Commercial Workers Canada, Local 175 v. Olymel, Barton, 2014 ONSC 1119
DIVISIONAL COURT FILE NO.: 277/13
DATE: 20140219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SACHS AND DALEY JJ.
BETWEEN:
UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175 Applicant
– and –
OLYMEL and PETER BARTON Respondents
Douglas J. Wray, for the Applicant
Mark D. Contini, for the Respondent, Olymel
HEARD at Toronto: February 19, 2014
lederman j. (ORALLY)
[1] This is an application for judicial review of an arbitral award dated March 17, 2013 brought by the applicant Union. The Arbitrator dismissed the Union’s grievance concerning the discharge of an employee, Kashmir Singh.
[2] Mr. Singh had filed a grievance pursuant to the Collective Agreement alleging that the respondent Olymel had failed to accommodate him as a disabled worker, contrary to the Collective Agreement and the Ontario Human Rights Code.
[3] This application is based on two rulings of the Arbitrator made in the course of the arbitration hearing that the applicant alleges amounted to a denial of natural justice and procedural fairness to the applicant. In the alternative the applicant argues that both rulings were unreasonable.
[4] The first ruling refused the applicant’s request for an order that counsel for the applicant be allowed access to the respondent Olymel’s plant to fully prepare for the hearing by observing and getting a better sense of possible jobs that the Grievor could perform.
[5] The second ruling refused the applicant’s request to admit as an exhibit the Physical Demands Analysis documents (“PDA”) produced by the respondent Olymel.
[6] In making the first ruling, the Arbitrator explained in an email to Union counsel, that although it would be useful to take a view because he had come on as counsel mid-way through the hearing, the difficulty was that he risked stepping outside a lawyer’s role into that of a witness.
[7] Of greater importance, the Arbitrator went on to say that it was the Union representatives’ role to instruct counsel and for counsel to present the evidence.
[8] The Arbitrator specifically stated to the applicant’s counsel: “I have not heard from you that the evidence is hard to understand. It seems fairly clear and direct.”
[9] The request for access to the plant was not made by Union counsel until after the Union closed its case. It was made by way of an email exchange with the Arbitrator, without Union counsel even copying Company counsel, and not even formally at the hearing.
[10] Nor indeed, as is clear from the Arbitrator’s response, was any position taken by counsel that the evidence was difficult to understand or to appreciate unless a tour of the plant was granted.
[11] The Arbitrator stated that Union counsel was ably assisted by representatives on the site who could readily observe and provide the necessary information to counsel.
[12] There is no presumptive right for counsel to be granted access to the opposing party’s premises for the purpose of preparing their case, in the absence of any submission that even with the assistance of the representatives, such access is necessary to understand the evidence.
[13] It was reasonable, therefore, for the Arbitrator in his discretion, to deny such access and there was no procedural unfairness.
[14] As to the second ruling, refusing to admit into evidence the PDA relating to the bone-checker and the slitter jobs, the context is important: The PDA was not tendered through a witness who could identify and explain the documents, even though Union counsel could have done so earlier through the Company witness, Ms. Arthur, the Human Resources Manager, or in reply evidence through a proper witness.
[15] It was reasonable for the Arbitrator not to receive the PDA as an exhibit in these circumstances. However, he did allow counsel to cross-examine Mr. Naveed Ahmed, a lead hand and Union Member on the PDA and specifically on the fact that it did not refer to bending or twisting.
[16] In fact, Mr. Ahmed agreed with counsel on cross-examination that no bending or twisting was required, as stated in the PDA.
[17] Further, it is clear that the Arbitrator took the relevant portions of the PDA into account in his reasons. He acknowledged that, “A PDA done by a student in 2008 did not reference bending or twisting as required for de-boning.”
[18] This reference just reinforces that there was no prejudice to the applicant by the Arbitrator’s ruling that the PDA not be marked as an exhibit.
[19] In view of the fact that the ruling caused no prejudice, it cannot be said that the applicant was deprived of natural justice or any right to be heard.
[20] Accordingly, the application is dismissed.
Costs
[21] I have endorsed the Record to read, “The application is dismissed for oral reasons delivered. As agreed by counsel, the respondent will have its costs fixed at $5,000 all inclusive.”
LEDERMAN J.
SACHS J.
DALEY J.
Date of Reasons for Judgment: February 19, 2014
Date of Release: February 21, 2014
CITATION: United Food and Commercial Workers Canada, Local 175 v. Olymel, Barton, 2014 ONSC 1119
DIVISIONAL COURT FILE NO.: 277/13
DATE: 20140219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SACHS AND DALEY JJ.
BETWEEN:
UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175 Applicant
– and –
OLYMEL and PETER BARTON Respondents
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: February 19, 2014
Date of Release: February 21, 2014