CITATION: Koscik v. OLRB, 2015 ONSC 1652
DIVISIONAL COURT FILE NO.: DC-14-000634-00
DATE: 20150327
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Bogdan Koscik, Applicant
AND: Ontario Labour Relations Board, ONTARIO PUBLIC SERVICE EMPLOYEE UNION and LAKERIDGE HEALTH CORPORATION, Respondents
BEFORE: Corbett, Harvison Young and A. O’Marra JJ.
COUNSEL: Bogdan Koscik, on his own behalf Leonard Marvy, for the Respondent, Ontario Labour Relations Board Jane Letton, for the Respondent, Ontario Public Service Employee Union
HEARD at Oshawa: March 4, 2015
ENDORSEMENT
HARVISON YOUNG J.
[1] The Applicant, Bogdan Koscik, seeks judicial review of the December 19, 2013 decision of David A. McKee of the Ontario Labour Relations Board (the “Board”). That decision dismissed the Applicant’s claim that the Ontario Public Services Employee Union (the “Union”) had violated its duty of fair representation (section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A, ss. 74, 114(1), 116), (the “Act”) by failing to seek judicial review of an arbitration decision upholding the Applicant’s termination from employment at Lakeridge Health Corporation (Lakeridge Health).
Background
[2] The Applicant, Bogdan Koscik, was terminated from his employment with Lakeridge Health in 2010 for insubordination and alleged time theft. He filed a grievance with the Union, and went to arbitration to challenge his termination. The arbitrator upheld the termination and dismissed the Applicant’s grievance. The Respondent, Union, notified the Applicant that it would not seek judicial review. The Applicant brought a judicial review application regarding the arbitration decision which was dismissed on August 1, 2013 by Gilmore J. on the basis that the Applicant lacked standing. On June 18, 2013, the Applicant filed an application under s. 74 of the Labour Relations Act in which he alleged that OPSEU failed in its duty of fair representation by refusing to seek judicial review of the arbitration decision.
[3] The Union sought the dismissal of the application on a prima facie basis and on the basis of delay. In a decision dated December 19, 2013, Vice-Chair of the Board, David A. McKee, dismissed the s. 74 application, finding that “the Union has the exclusive right [to decide whether] to bring the application or not. The trade Union is under an obligation to make that decision in a manner that is free from arbitrariness, discrimination and bad faith”. The Board did not dismiss the application on the basis of delay because it was of the view that the issue was moot given its view that the application should be dismissed as Mr. Koscik had not made out a prima facie case.
Standard of Review
[4] The standard of review of the Board’s decision is clearly that of reasonableness: see Dunsmuir v. New Brunswick (2008), 2008 SCC 9, 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. The interpretation of s. 74 of the Labour Relations Act lies at the heart of the specialized expertise of the Board.
Analysis
[5] At the outset, we make two points. First, this application seeks judicial review of the Board’s dismissal of the Applicant’s s.74 application alleging that the Union’s refusal to seek judicial review of the arbitration decision constituted unfair representation. It is not a judicial review of the arbitrator’s decision. Moreover, it is not an opportunity to re-litigate the grievance arbitration.
[6] Second, the Respondent Union submits that the Applicant has raised matters and issues that were not raised before the Board. It points in particular to his claim that the Union’s representation of him in the course of the grievance arbitration was defective. The Union submits that this is not appropriate, as this is a judicial review of the Board’s decision to dismiss the Applicant’s unfair representation which was made on the basis that the unfairness consisted of the Union’s refusal to seek judicial review of the arbitrator’s dismissal of the grievance.
[7] The Applicant submitted that his claim that the Union did not represent him fairly in the course of the grievance arbitration was, in fact part of his s. 74 complaint and his submissions to the Board. In the course of the hearing before this court, we indicated that we would review the submissions made to the Board to consider whether the Board should have understood the Applicant to have been raising issues about the quality of representation by the Union in the course of the grievance arbitration rather than simply its refusal to seek judicial review of the arbitrator’s decision. We have now done so.
[8] To begin with, we are satisfied that the Notice of Application itself makes no reference to the conduct of the Union in the course of the grievance proceedings. It focusses squarely on the refusal to seek judicial review and does not raise issues about the representation in the course of the grievance arbitration.
[9] The submissions before the Board, as before this court, concentrated on the findings of the arbitrator and the Applicant’s position that they were wrong and unreasonable. While there are some references in the Applicant’s submissions to the Board that suggest that the Applicant was unhappy with aspects of the Union’s conduct during the grievance arbitration, these were passing references. Read fairly and as a whole, the focus of the proceeding before the Board was the Union’s refusal to seek review of the arbitrator’s decision and not the conduct of the union in the course of that proceeding.
[10] Given the record before it and particularly the s. 74 application, there was no basis, given the substance of the pleading and the submissions before it, for the Board to have pursued this issue. We are unable to conclude that the Board should have treated the application as one raising issues about the Union’s representation of him in the course of the grievance arbitration.
[11] In summary, the allegations the Applicant now makes about the conduct of the Union during the grievance arbitration were not before the Board and did not form part of its decision. This Court’s role is confined (subject to certain exceptions which are not applicable here) to considering the reasonableness of the Board’s decision on the basis of the issues and evidence put before it at that time. For that reason, those allegations may not be raised in this judicial review of the Board’s decision.
[12] In its decision, the Board carefully considered the Applicant’s submissions that there had been significant chances of success on judicial review of the grievance arbitration in the course of its finding that the Applicant had not made out a prima facie case of unfair representation. It was not persuaded that the chances of success at judicial review had been strong. More importantly, it was not persuaded that the Union acted arbitrarily in deciding not to bring an application for judicial review: see Reasons for Decision para. 30.
[13] In reaching this conclusion, the Board applied the correct test. As the Board stated in Thompson v. Teamsters Local 938, 2003 17657 (ON LRB) at para 32, in a s. 74 application with respect to a Union’s refusal to seek judicial review:
…[i]t is not up to the Board to evaluate whether the arbitrator’s award is patently unreasonable, but the Board can assess whether the union’s conclusion that it would not seek judicial review of the award is arbitrary, discriminatory or in bad faith.
[14] The Applicant disagrees with the Board’s decision, and his submissions before us again focused on the proceedings before the arbitrator and his view that it was wrong. The Board, however, considered the proper test, that is, whether the trade Union had made its decision not to seek judicial review in a manner that was free from factors of arbitrariness, discrimination and bad faith.
[15] The Board reviewed the evidence as to the basis of the Union’s decision not to seek judicial review, citing the Union’s view that a judicial review of the arbitration decision would be unlikely to succeed because the reviewing court would likely find that it was reasonable as falling within a range of reasonable outcomes. It noted that the Applicant had not suggested that the Union’s process of reaching that decision was arbitrary, discriminatory or in bad faith but had rather asserted “only that the decision was arbitrary because it is wrong, and that he has a good case”.
[16] The Board in its reasons continued to consider the reasonableness of the arbitration decision, concluding that “what Mr. Koscik has said, even accepting it as accurate, does not suggest that there were significant chances of success on judicial review.” (Reasons, para. 30).
[17] Having taken all of these considerations into account, the Board found that the Applicant had not established that the Union’s decision not to seek judicial review of the dismissal of his grievance was arbitrary, discriminatory or in bad faith.
Conclusion
[18] In our view, the Board’s decision was reasonable. It applied the correct legal test, and it considered the evidence and submissions before it at that time. Its decision was justified, transparent and intelligible and it fell within the range of possible acceptable outcomes: Dunsmuir, supra. The application is therefore dismissed. Costs are payable by the Applicant to the Respondent OPSEU in the amount of $5000.
Corbett J.
Harvison Young J.
A. O’Marra J.
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