Misra v. City of Toronto, 2016 ONSC 2246

CITATION: Misra v. City of Toronto, 2016 ONSC 2246

DIVISIONAL COURT FILE NO.: DC-15-511

DATE: 20160401

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

S. LEDERMAN, J. THORBURN, D. EDWARDS JJ.

BETWEEN:

AJAY MISRA Applicant

– and –

CITY OF TORONTO Respondent

– and –

CANADIAN UNION OF PUBLIC EMPLOYEES (CUPE) LOCAL 79 Respondent

– and –

MAUREEN SALTMAN Respondent

Ajay Misra, Self-Represented Darragh Meagher, for the Respondent, City of Toronto Douglas Wray, for the Respondent, Union Gavin Tighe, for the Respondent, Maureen Saltman

HEARD at Toronto: March 30, 2016

OVERVIEW

[1] The Applicant’s employment was terminated by the Respondent, City of Toronto on April 23, 2009. The Applicant brought several grievances that were submitted to arbitration.

[2] After several requests for a decision and complaints about the delay, the Arbitrator provided a two paragraph “bottom line” decision on June 20, 2014. She ordered that the Applicant be reinstated without loss of seniority, but denied him compensation for lost wages.

[3] After several more requests and complaints regarding the delay, she provided fulsome reasons for her decision on June 18, 2015. In her reasons, the Arbitrator explained that, although she ordered that the Applicant be reinstated, she was denying the Applicant compensation because the case was “close to the line”, discharge was within the range of reasonable disciplinary responses, and she found the Applicant’s evidence was not credible.

[4] After receiving the arbitral award, the Canadian Union of Public Employees (CUPE) Local 79 (“the Union”) sought two legal opinions from its counsel. In those opinions, counsel for the Union advised that “there are only two possible results: the application is dismissed, or it is allowed – in which case the Award gets quashed in its entirety and remitted to another arbitrator to start again. … there is no possibility of the court substituting a different result – such as reinstatement with full or partial compensation.”

[5] The Union decided not to seek judicial review of the Arbitrator’s decision.

[6] Thereafter, the Applicant sought standing to bring his own Application for Judicial Review of the Arbitrator`s decision.

[7] J. Wilson J., the motions judge granted the motion brought by the City and the Union. She held that the Applicant lacked standing to seek judicial review of the Respondent Arbitrator's decision. She also noted that the Labour Relations Board concluded the Union did not breach its duty of fair representation of the Applicant.

THE ISSUE

[8] The Applicant seeks to vary the decision of the motions judge in which she denied him standing to bring an Application for judicial review.

[9] The issue on this motion to vary is whether J. Wilson J. erred in deciding that the Applicant has no standing to bring an Application for judicial review of the Arbitrator’s decision.

JURISDICTION TO HEAR THIS APPLICATION

[10] R. 21.01(3)(b) of the Courts of Justice Act R.S.O. 1990, c. C.43. provides that a single judge may dismiss an action on the basis that the plaintiff is without legal capacity to commence or continue the action and therefore has no standing. Such a motion may also be brought in respect of an Application, notwithstanding that the language of the Rules relates to actions. (Martin v Ontario, [2004] O.J. No. 2247, 2004 CarswellOnt 6385, at paras. 8-10; Fraser v Canada (Attorney General), [2005] O.J. No. 5580, [2005] O.T.C. 1127, 51 Imm. L.R. (3d) 101, 144 A.C.W.S. (3d) 879, 2005 47783, 2005 CarswellOnt 7457, at para. 47, Dolan v Ontario (Civilian Commission on Police Services), supra, at para. 38.)

[11] A single judge of the Divisional Court may quash or dismiss an application for judicial review. (Dolan v Ontario (Civilian Commission on Police Services), [2011] O.J. No. 1028, 2011 ONSC 1376, 277 O.A.C. 109, 2011 CarswellOnt 1439, 199 A.C.W.S. (3d) 985, 24 Admin. L.R. (5th) 284, at para. 36.)

[12] A three-person panel of the Divisional Court may, on motion, set aside or vary the decision of a judge of the Divisional Court who hears and determines a motion. (Section 21 and 21(5) of the Courts of Justice Act RSO 1990, c C.43, Kohar v. Dufferin-Peel Catholic District School Board,[1999] O.J. No. 3644 (Div. Ct.))

THE STANDARD OF REVIEW

[13] In considering the Applicant's request to set aside the February 16 Order of J. Wilson J., the Court must apply a standard of correctness on matters of law and palpable and overriding errors on findings of fact or matters of mixed fact and law. For an error to be palpable, the error must be plainly evident. (3394603 Canada Incorporated v Harman Transport, 2008 67404 (ON SCDC) at 1; Damallie v Malik, 2014 ONSC 6561 (ON SCDC) at 2); Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8.)

THE EVIDENCE BEFORE THE MOTIONS JUDGE

Grievances leading to Arbitration

[14] The Applicant was employed by the Respondent, City. He was party to a Collective Agreement between the Union and the City.

[15] The Applicant filed three grievances against the City. Thereafter, he was discharged by the Respondent, City on April 23, 2009. He filed another grievance protesting his discharge and two further grievances. The grievances were dealt with in accordance with the grievance procedure set out in the Collective Agreement.

[16] The parties held a mediation on April 26, 2010 in an attempt to resolve the grievances. The mediation was not successful.

[17] The Applicant told the Respondent Union that he wanted the arbitration of his grievances expedited.

[18] The parties agreed on an early date of June 27, 2010 for arbitration of the grievances and agreed on an arbitrator. The parties attempted to mediate a settlement that day and those efforts were not successful.

[19] The parties then agreed to select Maureen Saltman as arbitrator. She was to address the Applicant’s grievances including a two-day suspension, alleged violation of Minutes of Settlement, discharge, sick time, and alleged harassment.

[20] The arbitration commenced on October 6, 2010 and continued over 17 hearing days, concluding on July 16, 2012.

Union Requests for Decision from the Arbitrator

[21] Thereafter the Union made many attempts to obtain a decision from the arbitrator.

[22] On March 27, 2014, counsel for the Union wrote to the Respondent Arbitrator advising that because of the delay in issuing an award, the Union intended to file an application with the Minister of Labour under Section 48(11) of the Labour Relations Act. The next day the Arbitrator responded that she would render her full decision by June 20th, 2014.

[23] Based on this e-mail, the Union, in discussions with the Applicant, decided to wait until June 20, 2014.

“Bottom Line” Decision from the Arbitrator

[24] On June 20, 2014, (two years after completion of the hearing) the Arbitrator issued a two paragraph “bottom line” decision with respect to the discharge grievance, stating in part:

“After careful consideration, I have decided to reinstate the Grievor in employment without compensation but with no loss of seniority. I will remain seised (sic) for purposes of implementation and to complete this award, by providing reasons for this decision, as well as the decisions and reasons for the other grievances of which I am seised.”

[25] Thereafter, the Applicant returned to work.

Further Requests for the Arbitrator’s Reasons

[26] On June 27, 2014, the Union wrote to the Respondent Arbitrator asking when she expected to release the full reasons regarding all the grievances as, “Local 79 and the Moving Party wish to consider the possibility of a judicial review, and we do not believe this can be done until we have your written reasons.”

[27] The Respondent Arbitrator responded that she would do so, “as soon as reasonably practicable.”

[28] On July 24, 2014, the Union filed an application to the Minister of Labour concerning the delay by the Respondent Arbitrator issuing her award and reasons.

[29] On September 19, 2014 the Ministry of Labour advised the Union that the Arbitrator had provided the Minister with an October 31, 2014, date for the release of the balance of the decision.

[30] When the Respondent Arbitrator failed to issue her decision and reasons by October 31, 2014, the Union again contacted the Ministry of Labour several times. Counsel for the Union also sent an e-mail to the Respondent Arbitrator.

[31] On February 10, 2015, the Union also filed a complaint with the Ontario Labour-Management Arbitrators’ Association of which the Respondent Arbitrator was a member at the time.

[32] On February 25, 2015, the Union filed a Notice of Application for Judicial Review in Court File No. 101/15. The Union requested an order in the nature of mandamus directing the Arbitrator to issue her award and reasons.

[33] In the meantime, the Applicant went on stress leave, alleged harassment and his employment was then terminated by the City.

The Arbitrator’s Decision

[34] On June 18, 2015, (3 years after the hearing had ended) Arbitrator Saltman issued extensive reasons for her decision. In light of the release of the Respondent Arbitrator's Decision, the Union served and filed its Notice of Abandonment of the mandamus Application on October 2, 2015.

[35] In her reasons, the Arbitrator found that the Applicant threatened to “break” his supervisor and refused to leave the supervisor’s and manager’s offices when repeatedly directed to do so. The Arbitrator also referred to his disciplinary record. However, notwithstanding these incidents, the Arbitrator decided to exercise her discretion under Subsection 48(17) of the Ontario Labour Relations Act in the Applicant’s favour and order reinstatement with no loss of seniority but without compensation for lost wages from the time of his dismissal to the time of his reinstatement.

[36] The Arbitrator explained that she awarded no compensation to the Applicant because the case was “close to the line”, discharge was well within the range of reasonable disciplinary responses to the circumstances and the Applicant was not credible.

The Union’s Decision not to Challenge the Arbitral Award

[37] After the June 18, 2015 award was issued, the Applicant asked the Union to amend its Application for judicial review or file a new Application for judicial review to challenge the merits of the Arbitrator’s award. His particular concern was that he was not awarded back pay from the time he was fired in April 2009 to the time the decision was rendered in June 2015.

[38] The Union sought a legal opinion from its counsel. The legal opinion was provided by letter dated July 7, 2015. The opinion letter states in part:

“If an application for judicial review is brought, there are only two possible results: the application is dismissed, or it is allowed – in which case the Award gets quashed in its entirety and remitted to another arbitrator to start again. A successful application would cancel the bottom line decision ordering reinstatement. Mr. Misra would again be out of work pending disposition of the case by another arbitrator. To be clear, there is no possibility of the court substituting a different result – such as reinstatement with full or partial compensation.”

Clearly, the lengthy delay here was unusual and troubling. The parties and especially a discharged employee should not have to suffer such a delay. As you know, within the two-year delay, we made various attempts to get the Award issued.

The very specific issue then is whether the two (2) year delay in this case would likely cause the court to interfere with Ms. Saltman’s bottom line decision of reinstatement.

I believe a credible argument could be made that a delay of two (2) years in issuing a decision in a discharge case is on the face of it unreasonable. However, there are two reasons why, in the present case, I am of the opinion that the court would not likely quash Ms. Saltman’s bottom line decision.

Firstly, there is the questionable efficacy of a court decision quashing the bottom line decision in the circumstances. As noted earlier, the only judicial remedy possible in this case if we were successful in our application would be to quash the Award in its entirety. Mr. Misra would lose the favourable aspect of the Award – the reinstatement order. The case would have to be remitted to a different arbitrator to start the arbitration from the beginning; with Mr. Misra being, once again, a discharged employee.

In other words, such a result would necessarily involve significant further delay. Imposing additional delay appears to be an irrational remedy ….

In addition, judicial review is an extraordinary, discretionary remedy. Given Ms. Saltman’s repeated and highly critical comments concerning Mr. Misra’s credibility, a court is not going to be sympathetic to exercise its discretion in his favour.

For all the above reasons, in my opinion an application for judicial review of Ms. Saltman’s bottom line decision and Award would not likely succeed.”

[39] A copy of this opinion was provided to the Applicant.

[40] After learning of the Union’s decision not to proceed in November 2015, the Applicant filed his Notice of Motion on August 28, 2015 to intervene in Court File No. 101/15.

[41] Thereafter, in a second letter, Union’s counsel wrote a further letter dated September 17, 2015 to respond to some of the Applicant’s subsequent arguments:

“I understand that Mr. Misra is going to appear before the Grievance Committee on September 21, 2015 to appeal the Committee’s decision not to pursue an application for judicial review of Ms. Saltman’s award. I already provided you with my opinion in a letter dated July 7, 2015 which I stand by.

I understand Mr. Misra has raised certain arguments; I would like to comment on three (3) points:

1. Mr. Misra apparently wants the Court to award him back pay. As I explained in my earlier letter, that simply is not going to happen. The Court will either dismiss the application or strike out the entire award and force the parties to start over. (For reasons cited in my earlier letter, in my opinion the Court will not likely strike out the award.);

2. Mr. Misra claims that the arbitrator relied on his lack of credibility in making her decision when this was not a ground the City relied upon in discharging him. This is irrelevant. Ms. Saltman relied on her assessment of the Grievor’s credibility not to justify the discharge but as a factor in the exercise of her discretion whether to award any back pay.

3. Finally, the Grievor claims that Ms. Saltman was biased because of the complaint to the Minister of Labour; our application to the Arbitrators’ Association; and Mr. Misra taking his situation to the media. The problem with this is that Ms. Saltman issued her bottom line decision reinstating Mr. Misra without compensation in June 2014, before any of things he refers to occurred.”

[42] The Applicant appeared before the Grievance Committee. The Committee considered the Applicant’s submissions and the two opinion letters it had received from counsel and decided not to pursue an Application for Judicial Review.

[43] The Union decided not to challenge the Arbitrator’s award based on the legal opinions that such a challenge would not likely be successful in maintaining the Applicant’s reinstatement while granting him back pay.

[44] The Union served and filed a Notice of Abandonment of its judicial review application with the Court in Court File No. 101/15 on October 2, 2015.

THE DECISION OF THE MOTIONS JUDGE

[45] On October 9, 2015, the Applicant filed an Application for Judicial Review seeking to challenge the Arbitrator’s awards in his individual capacity, (Court File No. 511/15) and/or continue the abandoned Judicial Review Application initiated by the Union as intervenor or friend of the court (Court File No. 101/15).

[46] The Respondents, City and the Union sought to dismiss the motions on the basis the Applicant lacks standing.

[47] The motion was heard by J. Wilson J. on February 8, 2016.

[48] On February 10, 2016, the Ontario Labour Relations Board dismissed the Applicant’s complaint against the Union on the grounds that the Union’s decision not to pursue a judicial challenge to the Arbitrator’s Award was based solely on the opinion of its counsel that such an application would not likely be successful.

[49] On February 16, 2016, J. Wilson J. concluded that the Applicant had no standing to bring an Application for judicial review in his own name for the following reasons:

[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 …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.

[50] She therefore quashed the Application.

THE LAW

The Effect of an Arbitral Award

[51] Section 48 of the Labour Relations Act, 1995 S.O. 1995, c. 1, Sch. A, as amended, provides that every collective agreement must provide for the final and binding settlement by arbitration, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement.

[52] The decision of an arbitrator is binding upon the parties and upon the employees covered by the collective agreement who are affected by the decision.

The Powers of the Union in Pursuing Grievances of its Members

[53] A union is not required to take instructions from the grievor with respect to how to present a grievance at arbitration. (Woldetsadik v. Yonge Street Hotels (c.o.b. Courtyard by Marriott Downtown Toronto), [2012] O.J. No. 1074, 2012 ONSC 1580, at para. 8; Gilinsky v Carrier, [2012] O.J. No. 4922, 2012 ONSC 5497, at para. 7.)

[54] Counsel's obligation is to the Union and to the court not the grievor. Consequently, it falls to the Union to decide how the proceeding should be advanced. (Wong v. The Globe and Mail Inc. et al., 123 O.R. (3d) 28, 2014 ONSC 6372, at para. 28-29.)

[55] Allowing an employee to take action against a decision made by his or her union, by applying for judicial review solely on the basis that the Union member believes the arbitration award was unreasonable, offends the union's exclusive right of representation and the legislative intent regarding the finality of the arbitration process, and jeopardizes the effectiveness and speed of the arbitration process. (Noël v Société d'énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207, [2001] S.C.J. No. 41, at para. 62-63.)

The Rights of a Member of a Collective Agreement to Challenge Arbitration Awards on Their own Behalf

[56] The general rule that trade unions have the exclusive right to commence, conduct, withdraw and challenge the results of arbitration proceedings on behalf of a union member is subject to three exceptions:

i. where the collective agreement expressly confers a right on the individual to pursue a matter to arbitration in his/her individual capacity;

ii. where the union takes a position adverse in interest to the employee (described also as where the right of the employee to the procedural protections of natural justice has been breached); or

iii. where the union’s representation of the employee was unfair or so deficient that the employee should be given a right to pursue judicial review.

(Yee v Trent University, [2010] O.J. No. 2697, 2010 ONSC 3307, 320 D.L.R. (4th) 746, 195 L.A.C. (4th) 97, 190 A.C.W.S. (3d) 585, 2010 CarswellOnt 4411 at para. 8; Ali v United Food and Commercial Workers Canada, Local 175, 2014 ONSC 7318 at para. 5; Ali v United Food and Commercial Workers Canada, Local 175, [2013] O.J. No. 4666, 2013 ONSC 6208, 234 A.C.W.S. (3d) 743, [2013] CLLC para. 220-063, 2013 CarswellOnt 14152, 315 O.A.C. 358, at paras. 10-14.)

[57] Some indicia of Union compliance with the requirements of natural justice include:

i. employee awareness of the arbitration;

ii. employee attendance at the arbitration;

iii. employee opportunity to testify at the arbitration;

iv. evidence presented on the employee's behalf, through the Union or otherwise;

v. witnesses called by the employer cross-examined by Union counsel;

vi. submissions made by the Union in support of the employee's position; and

vii. a decision rendered and reasons provided.

(Ali v UFCW, Local 175, [2013] supra, at para. 13).

[58] An individual employee has been granted standing where the union took a position that was adverse to the interest of the employee on a central issue.

[59] For example, in Hoogendoorn v. Greening Metal Products and Screening Equipment Co. 1967 20 (SCC), [1968] S.C.R. 30, a grievance procedure was aimed entirely at securing his dismissal. Mr. Hoogendoorn was not present at the Arbitration. The court held that the requirements of natural justice were not fulfilled.

[60] Similarly in Re Bradley et al. and Ottawa Professional Fire Fighters Association et al. 1967 160 (ON CA), [1967] 2 OR 311 (O.C.A.) the court held that once a collective agreement is accepted, union members are entitled to notice of arbitration proceedings taken to test their right to continued enjoyment of the benefits. An arbitrator must therefore refrain from adjudicating on the collecting agreement benefits of unrepresented employees unless they have been given proper notice. The arbitration award was quashed as one group of employees was not given notice that benefits conferred on them would be taken away at the arbitration.

[61] However, in Wong v. The Globe and Mail (supra), the Divisional court rejected the argument that excluding her from standing to bring a judicial review application would leave her without a remedy. The court noted that the Applicant could have brought an Application before the Ontario Labour Relations Board for breach of the Union’s obligation of fair representation.

[62] The obligation of fair representation is imposed on a Union by section 74 of the Labour Relations Act, 1995, S.O., c. 1, Schedule A. That provision reads as follows:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

ANALYSIS AND CONCLUSION

[63] The motions judge correctly articulated the legal test that generally speaking, a trade union is the exclusive representative of a union member subject to the three exceptions.

[64] She held that the Applicant failed to establish that any of the three exceptions applied in this case because:

i. the Collective Agreement between the City and the Union does not allow the Applicant to file a grievance on his own behalf;

ii. an employee can only bring himself within the breach of natural justice exception when the union (not the Arbitrator) is responsible for a procedural breach; and

iii. the representation by the Union prior to release of the Arbitrator’s full reasons on June 18, 2015 was not in conflict with the interests of the Applicant or inadequate during the Arbitration.

[65] The Applicant claims that the Union acted in a manner contrary to his interest as it failed to call additional witnesses he felt would assist his case at arbitration. We note that in Woldetsadik (supra), the court held that the Union is not required to take instructions from the grievor regarding how to conduct the arbitration.

[66] He also claims on this Application that at the Arbitration, the Union did not take the position that he sought only damages for wrongful termination, not reinstatement. We find no merit in this claim as the Applicant never suggested that he did not wish to return to the workplace prior to receipt of the Arbitrator’s “bottom line” decision and that option was therefore not put before the Arbitrator as to do so would be to acknowledge that he could not go back to work.

[67] After the “bottom line” award was communicated, the Applicant raised for the first time his wish for compensation in lieu of returning to work. Union counsel went to City and the City was only prepared to offer $25,000 while the Applicant sought damages in excess of $300,000. As such, the matter could not be settled.

[68] The Applicant’s most serious complaint is that in deciding not to pursue judicial review of the Arbitrator’s award at the Arbitration to seek back pay, the Union “sold me out” and he was “collateral damage”.

[69] After the final arbitral award was rendered, the Union sought two legal opinions from its legal counsel (Mr. Wray) and was advised that in all likelihood, either the decision would be upheld or struck down in whole. This was because the Arbitrator found that the Applicant’s evidence was not credible and the Applicant’s behaviour was improper such that discharge was well within the range of reasonable disciplinary responses to the circumstances. If those findings of fact were upheld, there would be no reason to grant back pay. If those findings of fact were struck down, the matter would have to be looked at afresh.

[70] This is not a situation such as the ones in Hoogendoorn or Re Bradley where the union took a position that was adverse to the interest of the employee on a central issue and therefore the court saw fit to grant the employee standing to seek judicial review.

[71] The Applicant also filed a Complaint to the Labour Relations Board asserting that the Union breached its duty of fair representation to the Applicant. In his Complaint, he did not allege that the Union failed to seek payment in lieu of reinstatement at the Arbitration. The Labour Board dismissed the Complaint.

[72] In the decision, Vice Chair Kelly found there was no basis to conclude that the Union breached its duty of fair representation to the Applicant and the Union’s decision not to pursue a judicial challenge to the Arbitrator’s Award was based solely on the reasonable decision to rely on the two opinions of its counsel that such an Application would not likely be successful.

[73] The Respondent Union was found by the Labour Relations Board to have taken “all reasonable steps to obtain the arbitrator’s decisions” and “in fact, they took extraordinary measures…” with respect to the Union’s decision not to seek judicial review of the Arbitrator’s decision, the Union’s decision was based on the two legal opinions from counsel that “cannot be said to be even remotely unreasonable”.

[74] The Applicant has not sought judicial review of the Labour Relations Board decision.

[75] Even if there were some reason for the Union to seek judicial review, that is not of itself, a basis to grant status to an individual grievor to challenge an arbitration award. (Yashin v. National Hockey League, 2000 22620 (ON SC), [2000] O.J. No. 3306 at paragraph 21.) Allowing the Applicant to apply for judicial review solely on the basis that the Union member believes the arbitration award was unreasonable, offends the union's exclusive right of representation. (Noël v Société d'énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207, [2001] S.C.J. No. 41, at para. 62-63.)

[76] In sum, we find the motions judge made no error of law. She properly considered and applied the law in concluding that the union has the exclusive right to represent employees in a dispute involving the interpretation of the collective agreement unless the collective agreement provides for such a right, the employee’s right to the procedural protections of natural justice has been breached, or the employee was unfairly or inadequately represented by the union. (Ali v. United Food and Commercial Workers Canada, Local 175, 2013 ONSC 6208, [2013] OJ. No. 4666 (Div. Ct.).)

[77] Moreover, the motions judge made no palpable or overriding error of fact or mixed fact and law in concluding that, although there was an inordinate and unacceptable delay on the part of the Arbitrator in rendering her arbitral award, the Applicant had no standing to challenge the award as his request for standing does not fit within any of the exceptions to the general rule that a Union conducts proceedings on behalf of its members.

[78] In short,

a. the Applicant was covered by the Union’s Collective Agreement and the Union had exclusive carriage of the grievances;

b. the grievances were the subject of an arbitration;

c. the Union took a position consistent with that of the employee at the arbitration which was that the City’s complaints were unfounded;

d. thereafter it attempted to secure damages from the City at the request of the grievor;

e. after the final arbitral award was rendered, the Union reasonably relied on legal advice in deciding not to pursue judicial review; and

f. the Labour Relations Board dismissed the Applicant’s complaint on the basis that the Union took all reasonable steps to obtain the arbitrator’s decisions and the reliance on the two legal opinions from Union counsel was reasonable.

[79] Her decision was therefore reasonable.

[80] For these Reasons, the Application to vary the Order of J. Wilson J. is dismissed.

[81] In view of the result, the participation of the parties in this Application, and the submissions of the Applicant and counsel for the Respondents, costs to the City in the amount of $1,000 and costs to the Union in the amount of $2,000. No Order for costs in favour of the Arbitrator.

J. Thorburn J.

S. Lederman J.

D. Edwards J.

Released: April 1, 2016

CITATION: Misra v. City of Toronto, 2016 ONSC 2246

DIVISIONAL COURT FILE NO.: DC-15-511

DATE: 20160401

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. THORBURN, S. LEDERMAN, D. EDWARDS JJ.

AJAY MISRA Applicant

– and –

CITY OF TORONTO, CANADIAN UNION OF PUBLIC EMPLOYEES (CUPE) LOCAL 79, and MAUREEN SALTMAN Respondents

REASONS for decision

Released: April 1, 2016