CITATION: Misra v. City of Toronto, 2016 ONSC 1011
DIVISIONAL COURT FILE NO.: 511/15 DATE: 20160216
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
AJAY MISRA Applicant
– and –
CITY OF TORONTO, MAUREEN SALTMAN and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 Respondents
Self-represented Darragh Meagher for the Respondent, City of Toronto Gavin J. Tighe for the Respondent, Maureen Saltman Douglas J. Wray for the Respondent, Canadian Union of Public Employees, Local 79
HEARD at Toronto: February 8, 2016
J. Wilson J.
REASONS FOR JUDGMENT
The Motion
[1] The Respondents, the City of Toronto and the Canadian Union of Public Employees, Local 79 (the “City” and “Local 79”) bring a motion challenging the standing of the Applicant, Ajay Misra, to act on his own behalf to proceed with either of the two applications for judicial review of the award of the Arbitrator Maureen Saltman issued under the collective agreement between Local 79 and the City. They seek an order quashing both applications.
Background
[2] The Applicant was terminated from his employment with the City as a Budget Analyst in the Business Support Unit of the Facilities & Real Estate Division in 2009. Local 79 represented the Applicant in the six grievances filed. The arbitration in this matter concluded after a 17-day hearing in July 2012.
[3] Section 48(7) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, confirms that decisions of arbitrators shall be issued within 30 days of completing the arbitration, subject to some flexibility to extend the time limit when appropriate: i.e., when the parties to the arbitration agree on an extension or when the arbitrator decides that he or she requires an extension, so long as the arbitrator then provides reasons for the delay.
[4] In the months and years following the end of the arbitration hearing, no decision was released. After reminding M. Saltman several times of her obligation to release written reasons, Local 79 eventually filed an application for judicial review seeking, by way of mandamus, an order that the Arbitrator provide her reasons (the “First Judicial Review Application”).
[5] On June 18, 2015, three years after the conclusion of the arbitration, lengthy written reasons were provided by the arbitrator with very negative findings of credibility against the Applicant. The Applicant immediately expressed his wish to have the Decision challenged by way of judicial review alleging bias and serious prejudice caused by the excessive delay.
[6] There is no issue that there was an extraordinarily lengthy delay before reasons were released. Counsel describe the delay as “epic”. I will consider the question of delay when reviewing the Applicant’s arguments.
[7] After obtaining legal advice from counsel representing the Applicant at the arbitration, Local 79 decided not to seek judicial review of the substantive decision, as the Applicant had obtained an award of reinstatement with his seniority protected. The only issue was the question of retroactive compensation in light of the delay. The significant delay was identified as problematic, but the opinion was rendered that findings of credibility are very difficult to overturn. The Applicant asked the union to reconsider its decision, but his internal appeal was dismissed. Therefore, Local 79 filed a notice of abandonment in the First Judicial Review Application on October 2, 2015.
[8] The Applicant immediately sought to be added as Intervener in 101/15 to continue the abandoned judicial review application initiated by Local 79, and seeks relief by way of certiorari to review the substantive decision.
[9] The Applicant then initiated this second judicial review application (File # 511/15, the “Second Judicial Review Application”). He is seeking to judicially review the decision of the arbitrator. This second application seeks essentially the same relief as he seeks by way of his intervener status in the First Judicial Review Application.
[10] At the opening of the argument, the parties agreed that the same relief is being brought in both applications for judicial review: i.e., the Applicant is seeking to proceed acting on his own behalf with an application for judicial review of the substantive arbitration decision of M. Saltman, order issued June 2014 with reasons released on June 20, 2015.
[11] As the First Judicial Review Application was abandoned by Local 79, and its status is therefore uncertain, the parties agreed to focus their arguments on the Applicant’s standing in the Second Judicial Review Application. The Applicant agreed to abandon the Intervener request in the First Judicial Review Application and to proceed with his arguments on one front.
The Issue of Delay
[12] The Applicant’s submissions were somewhat free flowing: slipping into an assessment of the factual findings and the merits, as opposed to issues of standing.
[13] Focusing on the standing issue, the Applicant argues that he should be allowed to continue with the application due to various breaches of natural justice that occurred after completion of the arbitration hearing, namely the extraordinarily long time he had to wait for reasons to be released. He also raises allegations of bias.
[14] He argues that he fits within the narrow range of exceptions outlined in the case law to allow him to continue with the application for judicial review. Notwithstanding the paucity of precedent and the strong policy reasons for maintaining a union’s exclusivity to deal with judicial review of substantive decisions, he argues that this is the kind of extraordinary case where an individual employee should be permitted to continue with an application for judicial review that his or her union declines to pursue.
[15] Beginning in September 2012, counsel for Local 79 and, at the time, the Applicant, began making inquiries about when the reasons of the arbitrator would be released. This was three months after the conclusion of the arbitration hearing. The Arbitrator advised that she was ill.
[16] On March 27, 2014, counsel again wrote to the Arbitrator advising that the Union intended to file an application with the Ministry of Labour under section 48 of the Labour Relations Act. The Arbitrator responded that she was working tirelessly on the decision, and that it would be issued by June 20, 2014. Local 79 decided not to make the application.
[17] After much prodding, the arbitrator released a two paragraph decision on June 20, 2014. The decision ordered that the Applicant would be reinstated with seniority, but he would not receive retroactive compensation.
[18] After the release of the bottom line decision in June 2014, but before the release of the written reasons in June 2015, the Applicant launched a campaign in the media criticizing the arbitrator for the delays.
Consideration of the Case Law on Standing
[19] A foundational principle of modern labour law is that the union has exclusive right to represent employees in a dispute involving the interpretation of the collective agreement. Justice LeBel strongly articulated the reasoning behind this principle in Noël v. Société d’ènergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207, at paras. 62-63:
Given the day-to-day reality of managing collective agreements, the interpretation of arbitration awards, and the abundance of litigation in this area, a union cannot be placed under a duty to challenge each and every arbitration award at the behest of the employee in question on the ground of unreasonableness of the decision, even in dismissal cases. The rule is that the employer and the union are entitled to the stability that results from s. 101 L.C., which provides: “The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned. . .”. Judicial review must therefore not be seen as a routine way of challenging awards or as a right of appeal. Accordingly, even in discipline and dismissal cases, the normal process provided by the Act ends with arbitration. That process represents the normal and exclusive method of resolving the conflicts that arise in the course of administering collective agreements, including disciplinary action. In fact, this Court gave strong support for the principle of exclusivity and finality in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at pp. 956-957 and 959, per McLachlin J. That approach is also intended to discourage challenges that are collateral to disputes which, as a general rule, will be definitively disposed of under the procedure for administering collective agreements. While judicial review by the superior courts is an important principle, it cannot allow employees to jeopardize this expectation of stability in labour relations in a situation where there is union representation. Allowing an employee to take action against a decision made by his or her union, by applying for judicial review where he or she believes that the arbitration award was unreasonable, would offend the union’s exclusive right of representation and the legislative intent regarding the finality of the arbitration process, and would jeopardize the effectiveness and speed of the arbitration process.
Recognition of this kind of right to challenge an arbitration award would necessarily offend the fundamental principles governing relations with the employer where there is a right of exclusive collective representation. In a case where the arbitration process has been carried out, in accordance with the collective agreement, the employer is entitled to expect that a grievance that has been disposed of by the arbitrator will, as a rule, be disposed of permanently, and that the arbitration process will not be exposed to challenges that are launched without any control being exercised by its union interlocutor. As a general rule, the proper performance by the employer of the duty to negotiate and apply collective agreements must carry with it an assurance of stability in terms of the conditions of employment in its company.
[20] As foundational as this principle may be, there are limited exceptions where an individual employee may pursue a remedy on his or her behalf.
[21] These exceptions to the general rule of union exclusivity are found in Yee v. Trent University, 2010 ONSC 3307, [2010] O.J. No 2697, at para. 8, and in Yashin v. National Hockey League, [2000] O.J. No 3306, at paras. 16 to 21:
- Where the collective agreement confers such a right;
- Where the union takes a position adverse in interest to the employee; or
- Where the union representation of the employee has been so deficient that the employee should be given the right to pursue judicial review.
[22] Beyond noting that the first exception does not apply in the present matter, I would also note that in assessing whether the union has taken a position adverse in interest, the court has considered whether the position taken by the employee and the union at the hearing disclosed a conflict between their positions.
[23] A recent decision considering the narrow exceptions to this general rule is found in Ali v. United Food and Commercial Workers Canada, Local 175, 2013 ONSC 6208, [2013] O.J. No. 4666 (Div. Ct.). The three exceptions were articulated by Justice Lederer, sitting as a single judge of the Divisional Court, as follows:
- The collective agreement provides for such a right;
- The right of the employee to the procedural protections of natural justice has been breached; or
- The employee was unfairly or inadequately represented by the union.
[24] The right of natural justice contemplated in the second exception requires consideration of all of the indicia of what occurs at the hearing, including notice of the hearing, the right to attend, whether the employee was given an opportunity to testify, whether evidence was presented on the employee’s behalf, whether submissions were made, and “whether a decision was made and reasons were provided”.
[25] It appears that in Lederer, J.’s interpretation of the exceptions, he would have considered facts arising after the hearing as relevant to a breach of natural justice [Ali, at para. 13, emphasis added]:
The second of the three exceptions occurs when the right of the employee to the procedural protections of natural justice has been breached. In this case, the general indicia of compliance with the requirements of natural justice are evident. Abdalla Mohamed Ali was aware of the arbitration and was given notice of it. He was in attendance at the arbitration. He testified. Through the participation of the Union, evidence was presented on his behalf, the witnesses called by the employer were cross-examined and submissions were made in support of his position. A decision was made and extensive reasons were provided. Nonetheless, counsel on behalf of Abdalla Mohamed Ali says that his right to natural justice was breached, not by the arbitrator on the conduct of the arbitration, but by the conduct of the Union…
[26] I note that when Ali was heard before a full panel of the Divisional Court, Justice Nordheimer upheld the decision of Lederer, J. but framed the three exceptions using the language from Yee: see Ali v. United Food and Commercial Workers Canada, Local 175, [2014] O.J. No. 6155, at para. 5. The panel neither approved nor disapproved of the natural justice exception as stipulated by Lederer, J.
[27] The City and Local 79 argue that if the breach of natural justice is a principle to consider when assessing the question of standing, the breach of natural justice is assessed in the context of the union’s conduct during the hearing, not after its conclusion after reasons are released.
[28] Counsel for the Local 79 argues that there was no divergence of approach or opinion between the Applicant and the Union until the written reasons were released on June 18, 2015.
[29] Local 79 counsel argues that it is for counsel for the union, not the grievor, to frame the grievance and to determine how to proceed, including whether to proceed with judicial review. Counsel argues that to allow an employee to take action against a decision made by his union by applying for judicial review for a decision that he deems unacceptable would offend the union’s exclusive right of representation and the legislative intent of finality.
[30] It is the position of the Applicant that the refusal of a union to pursue a case as far as he would like to may constitute inadequate union representation: see Canada Post Corp. v. Varma [1991] O.J. No. 3397, at paras. 5 and 6.
[31] I disagree with the Appellant’s agruments.
[32] Based upon the decision of the full panel in Ali reconfirming the more restrictive articulation of the three exceptions from Yee, it does not appear that standing will be granted for a breach of natural justice which occurred after the conclusion of the arbitration.
[33] Even if such an expansion of the law of breach of natural justice is appropriate to take into account circumstances after the arbitration has been completed, it would not assist the Applicant.
[34] In the present case there no evidence of any inadequate representation by Local 79 for the period of time until the June 18, 2015 Decision was released. To the contrary, the representation throughout these lengthy proceedings including to the point in time when the written reasons were released appears to be exemplary.
[35] The Divisional Court in Wong v. Globe and Mail Inc., 2014 ONSC 6372, 123 O.R. (3d) 28, at para. 26 confirms that standing based upon the exceptions may be granted when the union’s representation has been inadequate:
I return then to the central issue and that is whether the applicant can bring herself within any of the three exceptions set out in Yee so as to give her standing to bring this judicial review application. The first exception does not apply because the collective agreement did not confer a right on an individual to pursue a matter to arbitration. In terms of the second exception, the applicant not rely [sic] on this exception in her factum and she expressly placed no reliance on it during the course of the hearing. This then leaves only the third exception, that is, where the union’s representation of the employee was so deficient that the employee should be given a right to pursue judicial review. The possible application of this third exception leads into the companion issue raised under this heading and, that is, the applicant’s contention that the Union’s representation of the applicant was “so deficient” as to amount to a breach of the rules of natural justice. [Emphasis added]
[36] This requirement of facts supporting a finding of deficient union representation is confirmed in Richard J. Charney and Thomas E.F. Brady, Judicial Review in Labour Law, loose-leaf (Toronto: Canada Law Book, 2015), at para. 15.400. The authors summarize the exception as follows:
Finally, the courts have stated that employees may have standing to apply for the judicial review of arbitral awards where they can establish that they were inadequately represented by the union. In Singh v. Laurentian University, an employee sought the judicial review of an arbitrator’s award upholding his dismissal on the ground that he was entitled to separate representation. The Ontario Divisional Court opined that while the collective bargaining regime was generally premised on representation of employees by the union, there may be cases “where the drastic consequences of dismissal coupled with some reasonable apprehension of inadequate representation by the union required personal representation”. However, the court found no evidence in that case that the union had inadequately represented the grievor.
[37] The procedural issues of delay and potential bias arising from the media campaign raised by the Applicant are serious. However the case law is clear that union exclusivity will only be disregarded when the union itself is responsible for a procedural breach—not a third party, such as an arbitrator.
[38] A union’s ability to exclusively represent its members is a foundational part of Canadian labour relations. Even if a serious procedural breach was caused by a third party, sidestepping union exclusively would still be seen by unions as an attack on this fundamental right.
[39] For these reasons the motion sought by the City and by Union 79 is granted. I conclude that the Applicant has no standing to either intervene in the First Proceeding, or to begin the Second Judicial Review Application. Both Applications for judicial review are therefore quashed.
The Application by the Applicant for a Breach of the Duty of Fair Representatio
[40] As troubling as what transpired after the conclusion of the arbitration may be, the only viable challenge available to the Applicant is if Local 79 chooses or is required to act on his behalf.
[41] The Applicant brought an application seeking a determination of whether the duty of fair representation was breached by Local 79 by declining to challenge the substantive decision by way of judicial review. The hearing took place on January 18, 2016.
[42] After conclusion of the argument in this matter, the decision dated February 10, 2016, the Ontario Labour Relations Board was released. It concluded that Local 79 did not breach its duty of fair representation and dismissed the application.
Future Hearing Date and Costs
[43] I am advised that the judicial review application in 511/15 is perfected. There are dates scheduled by the Applicant to proceed with the Second Judicial Review Application at the end of March, 2016. As I have not granted the Applicant standing for the reasons given, these dates may be used if the Applicant chooses to challenge this decision.
[44] I am not suggesting to the Applicant that such a challenge is warranted. However, there is a need for finality in this long outstanding and difficult matter for all parties.
[45] I heard the submissions of counsel on costs. Counsel for the Arbitrator sought costs of $250.00. Counsel for the City left whether I thought costs should be awarded to my discretion. The union sought costs of between $1750.00 and $2000.00. In my view in the interests of justice, based upon the exceptional unique circumstances of this case, this is not an appropriate case to award costs.
___________________________ J. Wilson J.
Released: February 16, 2016
CITATION: Misra v. City of Toronto, 2016 ONSC 1011
DIVISIONAL COURT FILE NO.: 511/15
DATE: 201602--
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
AJAY MISRA Applicant
– and –
CITY OF TORONTO, MAUREEN SALTMAN and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 Respondents
REASONS FOR JUDGMENT
J. Wilson J.
Released: , 2016