Canadian Nuclear Laboratories v. Int’l Union of Operating Engineers, Local 772, 2015 ONSC 3436

CITATION: Canadian Nuclear Laboratories v. Int’l Union of Operating Engineers, Local 772, 2015 ONSC 3436

DIVISIONAL COURT FILE NO.: 526/14

DATE: 20150527

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, R. J. SMITH AND WILTON-SIEGEL JJ.

BETWEEN:

CANADIAN NUCLEAR LABORATORIES Applicant

– and –

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 772 Respondent

Frank Cesario, for the Applicant Howard Goldblatt, for the Respondent,

HEARD at Toronto: May 27, 2015

SACHS J. (ORALLY)

[1] This is an application for judicial review of Arbitrator Pamela Chapman’s Decision, dated July 18, 2014, in which she determined that the Canadian Nuclear Laboratories (the “Employer”) breached its Collective Agreement with the International Union of Operating Engineers, Local 772 (the “Union”), under which, according to the Arbitrator, the employee was entitled to Union representation at the investigative meetings that led to his discharge for cause.

[2] The Arbitrator concluded that the Employer’s denial of Union representation did not mean that the employee’s discharge should be voided. Rather, she determined that “the consequence of the Employer’s violation will best be assessed within a review of all the facts of this case when the merits of the grievance is heard.” (Arbitrator’s Decision, p. 20).

[3] The Employer asks that the Arbitrator’s Decision be quashed on the basis that the Arbitrator’s interpretation of the Collective Agreement was unreasonable. The Union seeks to have the Employer’s application quashed by reason of prematurity.

[4] The Union submits that the Employer’s application for judicial review is premature as the employee’s grievance has not yet been decided.

[5] Courts are reluctant to hear and determine applications for judicial review of interim or interlocutory decisions of administrative decision makers. Such applications fragment and delay the administrative decision making process and may undermine the legislative goal to have a more speedy and less costly decision making process through the use of an administrative tribunal. Moreover, depending on the outcome of the administrative proceeding, there may be no need for judicial review.

[6] The classic statement of the Court’s reluctance to intervene in the course of administrative proceedings is found in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798, 1993 3430 (Div. Ct.) at p. 800:

For some time now, the Divisional Court has … taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceeding at their conclusion.

[7] A Court does have the jurisdiction to hear a premature application for judicial review but will do so only in exceptional circumstances. The Divisional Court described such “exceptional circumstances” in Ackerman v. Ontario Provincial Police, 2010 ONSC 910 at para. 19:

That is not to say that the court will never consider a judicial review application while administrative proceedings are still ongoing. However, the court will do so rarely, when exceptional circumstances are demonstrated. For example, judicial intervention may be warranted in situations where the tribunal clearly lacks jurisdiction to proceed (Roosma; Deemar v. College of Veterinarians of Ontario (2009), 2008 ONCA 600; 92 O.R. (3d) 97 (C.A.)). Where the decision, although interlocutory in most respects, determines a particular issue (as in Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlom (2005), 2005 FC 1000, 35 Admin. L.R. (4th) 213 (FC) in which the summons issued would be dispositive of the witnesses’ privacy rights); or, where proceeding with the hearing would result in an unfair hearing or a breach of natural justice (MacIntosh; People First of Ontario v. Regional Coroner of Niagara, (1992), 1992 7462 (ONCA), 6 O.R. (3d) 289 (C.A.)). Even in those extreme situations, the remedy is discretionary and will be exercised sparingly.

[8] In this case, the employer argues that there are exceptional circumstances that would warrant our intervention at this stage. In particular, it submits:

(i) that a new Arbitrator has now been appointed and that this constitutes an exceptional circumstance;

(ii) that the Arbitrator’s interpretation of the Collective Agreement will stand as a precedent for future dealings between the parties, which it asserts is particularly problematic since it was based on what the employer describes as a “fragmentary” record; and

(iii) this is not a case where the judicial review application will delay the proceedings as the arbitration on the merits is not scheduled to start until August 2014.

[9] With respect to the first submission, the applicant’s counsel acknowledges that he commenced this application before he knew that a new Arbitrator was going to be appointed. Given this, it cannot be said that the appointment of the second Arbitrator constituted an exceptional circumstance that justified this judicial review application.

[10] The only consideration raised by the Employer that might constitute exceptional circumstances is the possibility that the Employer will not have an opportunity to judicially review the Arbitrator’s interpretation of the Collective Agreement such that the result could constitute a persuasive determination in future dealings between the parties. This is not a certainty however. If the new Arbitrator takes the findings of the previous Arbitrator into consideration on remedy, the Employer will be in a position to seek judicial review. Moreover, the Employer retains the right to argue within the arbitration that any material change in the factual record should require a reconsideration of the interim award. Finally, it is also important to note that the principle of stare decisis does not apply to arbitral awards of this kind.

[11] More generally, these circumstances are not unusual. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 69, Laskin J.A. endorsed the view expressed therein that “Courts should not interfere with ongoing administrative processes until after they are completed or until available effective remedies are exhausted.” There is no distinction in principle between administrative and labour arbitration processes for present purposes. In this case, the issue before the arbitrator is the employee’s grievance. The arbitration process has not exhausted the remedies to the Employer in respect of this grievance.

[12] With respect to the Employer’s third submission, namely, that in this case the application for judicial review will cause no delay, this does not address the other policy reasons for not reviewing the interlocutory decisions of administrative decision makers - namely, the increase in costs associated with the bringing of judicial review applications of such decisions, the unnecessary use of judicial resources if there is ultimately no need for a judicial review because of the outcome of the proceeding and the distraction that such applications entail.

[13] For these reasons we would quash this application as premature.

[14] I have endorsed the Application Record, “This application is quashed as premature for reasons given orally by Sachs J. As per the agreement of the parties, the respondent Union is entitled to its costs of this application fixed in the amount of $6,500, all inclusive.”

___________________________ SACHS J.

R. J. SMITH J.

WILTON-SIEGEL J.

Date of Reasons for Judgment: May 27, 2015

Date of Release: June 1, 2015

CITATION: Canadian Nuclear Laboratories v. Int’l Union of Operating Engineers, Local 772, 2015 ONSC 3436

DIVISIONAL COURT FILE NO.: 526/14 DATE: 20150527

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, R. J. SMITH AND WILTON-SIEGEL JJ.

BETWEEN:

CANADIAN NUCLEAR LABORATORIES Applicant

– and –

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 772 Respondent

ORAL REASONS FOR JUDGMENT

SACHS J.

Date of Reasons for Judgment: May 27, 2015

Date of Release: June 1, 2015