Court File and Parties
CITATION: University of Windsor v. Faculty Assn. of the University of Windsor, 2014 ONSC 3247
DIVISIONAL COURT FILE NO.: 432/13
DATE: 20140527
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SWINTON AND TOSCANO ROCCAMO JJ.
BETWEEN:
THE UNIVERSITY OF WINDSOR
Applicant
– and –
THE FACULTY ASSOCIATION OF THE UNIVERSITY OF WINDSOR
Respondent
Counsel:
Albert Formosa and Nancy Jammu-Taylor, for the Applicant
James A. Renaud, for the Respondent
HEARD at Toronto: May 27, 2014
Oral Reasons for Judgment
SWINTON J. (ORALlY)
[1] The University argues that it was denied procedural fairness because the Arbitrator misunderstood the concession made by the University and deprived it of an opportunity to have a hearing on the issue of the neutrality of Mercer. The University argues the Arbitrator erred in finding that there was a concession that Mercer lacked “neutrality”, when it in fact conceded that Mercer lacked “independence.” Therefore, in ordering disclosure of the contested documents at this point, the Arbitrator has effectively given a final remedy without giving the University the opportunity for a hearing on the issue whether Mercer lacked neutrality, and consequently, whether the documents in issue should be disclosed.
[2] In our view, there was no denial of procedural fairness. The University conceded the lack of independence of Mercer. Once that confession was made, it was open to the Arbitrator to find the contested documents arguably relevant and not confidential based on the Wigmore criteria.
[3] We find the distinction between neutrality and independence to be “wordsmithing”, to adopt the term used by Union counsel.
[4] Had the University wanted to lead evidence respecting Mercer’s neutrality, as distinct from its lack of independence, the time to raise the request to lead evidence was during the arbitration hearing.
[5] The University also took issue with the jurisdiction of the Arbitrator to order disclosure, arguing that it was outside the scope of the remedy sought in the grievance. It was for the Arbitrator to interpret the terms of the grievance. This is her area of expertise, and her interpretation was well within the range of reasonable outcomes.
[6] For these reasons, the application for judicial review is dismissed.
DAMBROT J.
COSTS
[7] On behalf of the panel, I have endorsed the back of the Application Record, “This application is dismissed for oral reasons delivered today. Costs to the respondent in the amount of $22,578.52 all in, which covers all matters and motions.”
SWINTON J.
DAMBROT J.
TOSCANO ROCCAMO J.
Date of Reasons for Judgment: May 27, 2014
Date of Release: May 30, 2014
Appendix
CITATION: University of Windsor v. Faculty Assn. of the University of Windsor, 2014 ONSC 3245
DIVISIONAL COURT FILE NO.: 432/13
DATE: 20140527
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SWINTON AND
TOSCANO ROCCAMO JJ.
BETWEEN:
THE UNIVERSITY OF WINDSOR
Applicant
– and –
THE FACULTY ASSOCIATION OF THE UNIVERSITY OF WINDSOR
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: May 27, 2014
Date of Release: May 30, 2014