Misra v. Canadian Union of Public Employees, Local 79, 2016 ONSC 6745
CITATION: Misra v. Canadian Union of Public Employees, Local 79, 2016 ONSC 6745
DIVISIONAL COURT FILE NO.: 176/16
DATE: 20161027
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MARROCCO A.C.J.S.C., NORDHEIMER and THORBURN JJ.
BETWEEN:
AJAY MISRA
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and THE CITY OF TORONTO
Respondents
– and –
ONTARIO LABOUR RELATIONS BOARD
Intervener
Self-represented
Douglas J. Wray, for the Respondent, Canadian Union of Public Employees, Local 79
Darragh Meagher, for the Respondent, The City of Toronto
Leonard Marvy, for the Ontario Labour Relations Board
HEARD at Toronto: October 27, 2016
NORDHEIMER J. (orally)
[1] Ajay Misra seeks judicial review of two decisions of the Ontario Labour Relations Board. The first decision dismissed the applicant’s application alleging that the respondent Union failed in its obligation of fair representation towards the applicant and the second decision declined the applicant’s request to reconsider the first decision.
[2] The applicant was involved in a grievance with the City of Toronto arising from his dismissal. The grievance was arbitrated. The arbitrator ordered the applicant to be reinstated in his employment with the City. However, the arbitrator also determined that the applicant had committed serious offences and had not been truthful in his evidence. Consequently, the arbitrator concluded that the applicant should not receive compensation for the time between his discharge and his reinstatement. This latter decision, while of some significance to any employee in the normal course, had much more significant consequences for the applicant. Those consequences arose from the fact that it took the arbitrator two years to release her “bottom line” decision and a further year to release her reasons. As a result, the applicant lost at least two years of income.
[3] As inexcusable as the delay by the arbitrator was in this case, the relief that the applicant now seeks is simply misguided. It arises from the fact that the respondent Union, in response to the delay in obtaining the arbitrator’s decision and reasons, eventually commenced a judicial review application directed at compelling the arbitrator to provide her reasons. When the reasons were finally received, the respondent Union concluded that the judicial review application could not succeed and abandoned it. The applicant alleges that the respondent Union’s decision in this regard represents a failure to fairly represent him because he says that the respondent Union ought to have proceeded with the judicial review to challenge the arbitrator’s award.
[4] The Board dismissed the applicant’s allegation of a breach of the duty of fair representation. In its decision, the Board carefully reviewed the allegations made by the applicant regarding what he says that the respondent Union ought to have done. The Board concluded that the respondent Union had acted reasonably, and on the basis of legal advice, in abandoning the application for judicial review, once the arbitrator’s reasons were received.
[5] The issue before this court is whether the Board’s decision is a reasonable one. I conclude that it is. The respondent Union made a judgment call that the judicial review application regarding the arbitrator’s decision was unlikely to succeed given that the applicant had been ordered reinstated with no loss of seniority. The respondent Union pointed out that it is not unusual for there to be no order for “back pay” in such cases. The issue of back pay was the only remedy that the applicant had not received through the arbitration process. The magnitude of the impact of that aspect of the arbitrator’s decision really arose from the delay in obtaining the arbitrator’s decision and not in the essence of the decision itself. I do not see how the respondent Union can be faulted for concluding that it would be highly unlikely that a court would interfere with the arbitrator’s award because of the peculiar circumstances in which it was ultimately rendered. The respondent Union was also reasonably concerned that by proceeding with the judicial review application, it opened up the reinstatement decision of the arbitrator and that would not be in the best interests of the applicant.
[6] While the applicant, somewhat remarkably, says that he would have been quite content with the possibility that the judicial review application might result in him losing the reinstatement order, the respondent Union was not required to blindly pursue a matter on behalf of any member regardless of the potential consequences.
[7] I agree with the conclusion reached by the Board at para. 41 of its decision in which it said:
Thirdly, having read the arbitrator’s 239 page decision setting out her reasons for reinstating Mr. Misra without compensation, I am not persuaded that there are errors so obvious and pervasive in the award that I could conclude that the chance of success at judicial review was very strong, and that therefore the Union was arbitrary in failing to proceed with such an application on Mr. Misra’s behalf.
[8] It was the respondent Union’s job to make a judgment call regarding the likelihood of success on the judicial review application. The Board found that the respondent union’s decision was a reasonable one and, consequently, found no breach of the duty of fair representation. I conclude that the Board’s decision was also a reasonable one and, consequently, there is no basis for this court to interfere with it.
[9] The application for judicial review is dismissed.
COSTS - Marrocco A.C.J.S.C.
[10] I have endorsed the Application Record as follows: “This Application is dismissed for oral reasons delivered today. Costs to the Respondent CUPE Local 79 in the amount of $2,500 and to the Respondent City of Toronto $1,500 inclusive of HST and disbursements.”
NORDHEIMER J.
I agree
MARROCCO A.C.J.S.C.
I agree
THORBURN J.
Date of Reasons for Judgment: October 27, 2016
Date of Release:
Local 79, 2016 ONSC 6745
DIVISIONAL COURT FILE NO.: 176/16
DATE: 20161026
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., NORDHEIMER and THORBURN JJ.
BETWEEN:
AJAY MISRA
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and THE CITY OF TORONTO
Respondents
– and –
ONTARIO LABOUR RELATIONS BOARD
Intervener
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: October 27, 2016
Date of Release: