2017 ONSC 4084
DIVISIONAL COURT FILE NO.: 192/17
DATE: 20170630
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
AMALGAMATED TRANSIT UNION, LOCAL 113, and ROBERT KINNEAR on his own behalf and on behalf of all other MEMBERS OF THE AMALGAMATED TRANSIT UNION, LOCAL 113
Applicants/Moving Parties
– and –
TORONTO TRANSIT COMMISSION
Respondent/Responding Party
Ian Fellows, Dean Ardron, Kristen Allen & Ashley Schuitema, for the moving parties
Paul Schabas, Roy C. Filion Q.C, Kaley Pulfer & Bonnea Channe, for the responding party
HEARD at Toronto: written submissions
NORDHEIMER J.:
[1] The applicants seek leave to appeal from the Order of Associate Chief Justice Marrocco, dated April 3, 2017, that denied their application for an interlocutory injunction to prevent the respondent from implementing random drug and alcohol testing pending the conclusion of a grievance arbitration.[^1]
[2] Two issues are raised. The first is whether this court has jurisdiction to consider the motion for leave to appeal. The second is, if this court does have jurisdiction, should leave to appeal be granted.
Background
[3] For the purposes of this motion, I believe that the background can be stated briefly.
[4] On October 17, 2010, the respondent implemented a “Fitness for Duty Policy” (the “Policy”) which, for the first time, provided for drug and alcohol testing of its employees.
[5] On July 8, 2010, upon receiving notice of the Policy, the Amalgamated Transit Union (“ATU”) filed a policy grievance claiming, inter alia, that the entire Policy, or alternatively aspects of it, violated the parties’ Collective Agreement, the Human Rights Code, R.S.O. 1990, c. H.19, and the right to be free from unreasonable search and seizure under s. 8 of the Charter.
[6] On August 10, 2010, the ATU referred the grievance to arbitration pursuant to the terms of the parties’ Collective Agreement and s. 48 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. At some point after the grievance was referred to arbitration, the respondent implemented drug and alcohol testing under the Policy.
[7] On March 8, 2011, the grievance arbitration commenced before an arbitrator. Between September 2012 and April 2016, the parties continued to litigate the grievance challenging the validity of the Policy without random drug and alcohol testing in place. The parties had four hearing days in 2012, eleven in 2013, twelve in 2014, and sixteen in 2015. Remarkably, notwithstanding the passage of six years since the arbitration commenced, the ATU has not yet closed its case in chief.
[8] On October 19, 2011, after the arbitration process was underway, the respondent amended the Policy to require employees working in “safety-sensitive” positions and specified management positions to submit to random drug and alcohol testing. The revised Policy provided that employees could be subject to a breathalyzer test for alcohol impairment or an oral swab test for drug impairment without warning. The ATU contended, and the arbitrator agreed, that this amended Policy fell within the terms of the ongoing grievance arbitration policy. As a consequence of that decision, the respondent did not then commence random drug testing.
[9] However, in or around March 2016, the respondent determined that it was going to proceed to implement random drug and alcohol testing before the arbitration concluded. It gave notice to its employees of that intention.
[10] On December 8, 2016, the respondent provided the ATU with notice that it would implement random drug and alcohol testing starting March 1, 2017. This date was subsequently revised to April 1, 2017 to accommodate the argument of the application for an interlocutory injunction.
Jurisdiction
[11] In terms of the first issue, the respondent argues that the order in question is a final order and thus the appeal route is to the Court of Appeal. The respondent says that this situation results from the fact that the applicants brought their request for an injunction by way of an application under r. 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The sole relief sought in the application was the interlocutory injunction. The respondent says that, since the application was dismissed, the application has been finally determined. The resulting order is therefore a final order according to the respondent. It relies on the decision in Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97 (C.A.) in support of its position.
[12] The applicants contend that the order in question is interlocutory. They point to the obvious fact that the relief that they sought was an interlocutory injunction which is, by definition, not a final order. It is interim relief while the substantive issue remains to be determined. The applicants rely on the decision in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 (C.A.) in support of their position.
[13] The decision in Hendrickson sets out the test for the difference between an interlocutory order and a final order. The decision has been oft-quoted in various cases that have wrestled with this recurring issue since. Of particular importance is the application of the test set out by the court at p. 678:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties - the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.
[14] At first blush, this test would seem to direct the conclusion that the refusal of the request for an interlocutory injunction pending the determination of the grievance arbitration resulted in an interlocutory order. There is no dispute that the merits of the case, that is whether the random drug testing instituted by the respondent is permitted under the collective agreement, is still to be determined in the grievance arbitration.
[15] As self-evident as that conclusion, at first instance, may appear to be, it does not take into account the nature of the proceeding in which the interlocutory injunction was sought nor does it take into account the reasoning set out in Buck Bros.
[16] In Buck Bros. the applicant brought an application for the determination of rights under a contract along with declaratory relief. More specifically, the applicant sought an order that it had satisfied the requirements in the agreement between the parties such that the applicants were entitled to proceed to arbitration. The respondents sought the opposite finding. The application judge did not grant either of the declarations sought but rather made a declaration that the question should be determined by the arbitrators.
[17] The respondents appealed the order of the applications judge to the Court of Appeal. The applicant moved to quash the appeal on the basis that the application judge’s order was interlocutory. The Court of Appeal dismissed the motion to quash, finding that the application judge’s order was a final order and therefore properly appealed to the Court of Appeal.
[18] Central to the conclusion reached by the Court of Appeal in Buck Bros. was the fact that the proceeding in question was an application and that the order of the application judge had finally determined that application. The Court of Appeal recognized that there was a broader issue still outstanding between the parties but nonetheless held that that fact did not turn the order into an interlocutory one.
[19] In order to understand the Court of Appeal’s conclusion, I believe it is necessary to set out a few excerpts from the court’s reasons. I begin with what Morden A.C.J.O. said, at para. 8(QL), directly after referring to the decision in Hendrickson:
The foregoing conclusion is not merely a matter of interpreting the words in Hendrickson. It is, in my view, in accord with the purpose of a provision which categorizes orders for appeal purposes. I have difficulty concluding that an order on an issue raised in a proceeding which ends the proceeding is interlocutory simply because it does not finally determine another, quite possibly larger, issue between the parties which may be subsequently determined in some other proceeding or by some other process.
[20] In terms of the relationship between the application judge’s order and the contents of the application, Morden A.C.J.O. added, at para. 9(QL):
Subject to an appeal from this order, this proceeding is finally determined. There is no further issue in it that remains to be decided.
[21] In the course of his reasons, Morden A.C.J.O referred to an earlier unreported decision of the Court of Appeal in Automatic Systems Inc. v. E.S. Fox Ltd. (Doc. No. C17413, February 18, 1994) where the court was dealing with an appeal from the dismissal of an application that had sought orders to stay actions. Again, one of the parties sought to quash the appeal on the ground that the order dismissing the application for a stay was interlocutory since the actions would be continuing. The Court of Appeal disagreed. It said, as quoted by Morden A.C.J.O at para. 18(QL):
. . . the procedural consequences that flow from the fact that the matter was commenced by application include the right of appeal to this court from the judgment on the application. The application is separate from the construction lien action. That action is not before this court, nor is any part thereof. The judgment on the application finally disposed of the entire matter raised in that proceeding.
[22] Morden A.C.J.O. was not oblivious to the appearance that the court’s conclusion might raise, namely, if a party seeks some form of interim relief respecting a broader dispute between the parties, one would think almost automatically that the resulting order would be interlocutory because the broader dispute remains. In response to that concern, Morden A.C.J.O. said, at para. 23 (QL):
I appreciate that in some situations this approach can lead to apparently anomalous results. The order in question may bear on a small part only of a larger area of conflict between the parties, an area that may or may not yet be involved in other proceedings. This is not a consideration, however, which inclines me to depart from an approach which is entirely consistent with the meaning and function of a proceeding (as opposed to a step in a proceeding, such as a motion) and which is reasonably predictable in its application. The opposite approach, which allows an order made at the end of a proceeding to be held to be interlocutory if it appears that it is part of a larger area of conflict is more problematic and less predictable in its application.
[23] In my view, the situation here is indistinguishable from the situation that presented itself in Buck Bros. Here the applicants brought an application seeking an interlocutory injunction. That application was dismissed.[^2] The order dismissing the application ended that proceeding. It is therefore a final order and, pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, any appeal lies to the Court of Appeal.
[24] This conclusion is also consistent with the decision in R. v. Consolidated Fastfrate Transport Inc. (1995), 1995 1527 (ON CA), 24 O.R. (3d) 564 (C.A.) where the Court of Appeal held that the granting of what was, in essence, a Mareva injunction was a final order when that was the only relief that had been sought in the application. Following on the decision in Buck Bros., Galligan J.A. said, at para. 13(QL):
Because this injunction was the only relief sought in the civil proceeding, the order granting it determined the only matter in dispute between the parties to that proceeding. It was, therefore, a final order and the appeal from it is properly before this court.
[25] Contrary to the submissions of the applicants, I can see no principled distinction between the situation in Buck Bros. and in Consolidated Fastfrate and the situation here.
[26] There are certain other arguments advanced by the applicants that I should address. The first is the applicants’ submission that
… it would be arbitrary and inconsistent to characterize the motion’s judge order as ‘final’ simply because it was commenced by application rather than motion, particularly since it could have been commenced by motion under Rule 40.01 and section 101 of the CJA.
[27] There are two points to be made in response to that assertion. One is that the assertion ignores the fundamental finding made by the Court of Appeal in Buck Bros. where a very clear distinction was drawn between an application and a motion in terms of the proper characterization of the order that results. The other is that for a motion to have been brought, there would have had to be a proceeding launched within which the motion could be brought. That proceeding, presumably commenced by statement of claim, would have had to advance some cause of action separate and apart from the request for an interlocutory injunction. If that had been the route taken in this case, then the reasoning in Buck Bros. would not apply. However, that is not this case. Simply put, the applicants cannot avoid the effect of Buck Bros. by saying that they could have proceeded differently in the first instance. The fact is that they did not.
[28] The second is the applicants’ reliance on the decision in Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 215 (SCC), [1996] 2 SCR 495. That decision does not assist the applicants. It dealt with the jurisdiction of a court to grant injunctive relief. There is no issue here that the application judge had the jurisdiction to grant the injunction if he deemed it appropriate to do so. Rather, the issue here is the appellate jurisdiction and that appellate jurisdiction depends on whether the order in question is final or interlocutory – an issue that was not dealt with in Brotherhood.
[29] The third is the applicants’ reliance on the decision in Ontario Medical Association v. Miller (1976), 1976 679 (ON CA), 14 O.R. (2d) 468 (C.A.) which held, on the particular facts of that case, that a decision dismissing an application for an injunction gave rise to an interlocutory order. It is not clear from the reasons in that case what type of proceeding was involved in which the request for an injunction was brought. Although the decision refers to an “application” for an injunction, as will be seen from other cases there is sometimes a loose (if not incorrect) usage of the words “application” and “motion”. Assuming it was, in fact, an application for an injunction, then I accept that the conclusion in Ontario Medical Association appears to conflict with the decision in Buck Bros. I note that there is no mention of the decision in Ontario Medical Association in the detailed analysis undertaken by Morden A.C.J.O. in Buck Bros.[^3] In any event, assuming that there is a conflict between those decisions, that is a matter for the Court of Appeal to resolve. I choose to follow the more recent decision (and if I may say, respectfully, the more thorough analysis of the issue) in Buck Bros.
[30] Consequently, I conclude that the order in question is a final order and that this court has no jurisdiction to hear a motion for leave to appeal from it.
Leave to Appeal
[31] In light of my conclusion on the issue of jurisdiction, I do not get to the question whether leave to appeal ought to be granted nor do I consider it appropriate or necessary to offer any observations on that question in these circumstances.
Conclusion
[32] The motion for leave to appeal is dismissed for want of jurisdiction. If the parties cannot agree on the costs of this motion, they may make written submissions. The respondent’s submissions are to be delivered within fifteen days and the applicants’ submissions are to be delivered within ten days thereafter. There are to be no reply submissions without leave of the court. Neither party’s submissions shall exceed ten pages in length.
NORDHEIMER J.
Date of Release: June 30, 2017
2017 ONSC 4084
DIVISIONAL COURT FILE NO.: 192/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
AMALGAMATED TRANSIT UNION, LOCAL 113, and ROBERT KINNEAR on his own behalf and on behalf of all other MEMBERS OF THE AMALGAMATED TRANSIT UNION, LOCAL 113
Applicants/Moving parties
– and –
TORONTO TRANSIT COMMISSION
Respondent/Responding party
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release:
[^1]: Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, [2017] O.J. No. 1614 (S.C.J.)
[^2]: I appreciate that the application judge, at the end of his reasons, said that the “motion” is dismissed but it is quite clear that it was the application that was being dismissed. There was no motion before the court.
[^3]: I note that Morden A.C.J.O. did refer to Ontario Medical Association in Laurentian Plaza Corp. v. Martin (1992), 1992 7561 (ON CA), 7 O.R. (3d) 111 (C.A.) that was decided just two years before Buck Bros.