Ali v. United Food and Commercial Workers Canada, Local 175, 2014 ONSC 7318
CITATION: Ali v. United Food and Commercial Workers Canada, Local 175, 2014 ONSC 7318
DIVISIONAL COURT FILE NO.: 497/12
DATE: 20141217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, HORKINS AND HARVISON YOUNG JJ.
BETWEEN:
ABDALLA MOHAMED ALI
Appellant
(Applicant)
– and –
UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175, AVIS BUDGET GROUP and PETER F. CHAUVIN
Respondents
(Respondents)
Joseph Markin, for the Appellant (Applicant)
Michael A. Church, for the Respondent, UFCW Canada Local 175
Jordan D. Winch and Christopher J. Hunter, for the Respondent, Avis Budget Group
HEARD at Toronto: December 17, 2014
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (ORALLY)
[1] Mr. Ali brings this motion to set aside the order of Lederer J. dated October 9, 2013, that quashed Mr. Ali’s application for judicial review of a decision of an arbitrator. The application for judicial review was quashed on the basis that Mr. Ali does not have standing to seek to review the arbitrator’s decision.
[2] Mr. Ali was employed by Avis. Avis terminated Mr. Ali’s employment for cause. Mr. Ali’s union, the United Food and Commercial Workers Canada, grieved the dismissal. After a hearing, the arbitrator concluded that the termination of Mr. Ali’s employment was justified. The Union decided that it would not seek judicial review of that decision.
[3] Mr. Ali complains that he was not provided by his Union with an interpreter for the arbitration hearing. Mr. Ali says that his first language is Somali and he could not fully understand the arbitration proceedings that were conducted in English. Prior to the arbitration hearing, Mr. Ali had asked his Union to provide him with an interpreter but the Union refused.
[4] It is well established that, with three exceptions, an employee does not have the right to seek judicial review of an arbitration proceeding. The union has the exclusive right to do so: Nöel v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207 at para. 69.
[5] The three exceptions to this general principle are set out in Yee v. Trent University, 2010 ONSC 3307, [2010] O.J. No. 2697 at para. 8. They are:
(i) where the collective agreement confers a right on the individual to pursue a matter to arbitration;
(ii) where the union takes a position adverse in interest to the employee; and,
(iii) where the union’s representation of the employee has been so deficient that the employee should be given a right to pursue judicial review.
[6] It is accepted that neither the first or second exceptions apply in this case. In terms of the third exception, Mr. Ali says that his right to procedural fairness or natural justice was infringed because of the failure of the Union to ensure that he had an interpreter for the hearing. This is not presented as a true breach of natural justice issue since, if it was, the Union would have the right to seek judicial review on that basis. Rather, this assertion of a breach of natural justice is the gravamen of Mr. Ali’s claim of deficient representation by the Union.
[7] The motion judge heard and considered the evidence with respect to the interpreter issue. He concluded, correctly in my view, that the evidence did not support Mr. Ali’s contention that he required the assistance of an interpreter in order to fully and properly participate in the arbitration proceeding.
[8] I note in that regard, that not only did Mr. Ali fail to raise any such issue before the arbitrator, he also failed to advance it as a ground in his application for judicial review. He only raises it now in response to this motion to quash that application.
[9] I can find no error in the analysis or result reached by the motion judge. Mr. Ali does not have standing to seek judicial review of the arbitrator’s award. If Mr. Ali is of the view that the Union failed to properly and adequately put his case before the arbitrator, his remedy was to seek relief from the Ontario Labour Relations Board.
[10] The motion for review is dismissed.
COSTS
[11] I have endorsed the Motion Record, “The motion is dismissed. Costs payable by Mr. Ali fixed in the amount of $5,000 payable to Avis and $4,000 payable to UFCW, both inclusive of HST and disbursements.”
NORDHEIMER J.
HORKINS J.
HARVISON YOUNG J.
Date of Reasons for Judgment: December 17, 2014
Date of Release: December 22, 2014
CITATION: Ali v. United Food and Commercial Workers Canada, Local 175, 2014 ONSC 7318
DIVISIONAL COURT FILE NO.: 497/12
DATE: 20141217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, HORKINS AND HARVISON YOUNG JJ.
BETWEEN:
ABDALLA MOHAMED ALI
Appellant
(Applicant)
– and –
UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175, AVIS BUDGET GROUP and PETER F. CHAUVIN
Respondents
(Respondents)
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: December 17, 2014
Date of Release: December 22, 2014