2017 ONSC 6054
DIVISIONAL COURT FILE NO.: 1021/16
DATE: 20171010
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kiteley, Conway, Mulligan JJ.
BETWEEN:
David Houle
Trent Falldien, for the Applicant
Applicant
– and –
Sudbury Mine, Mill & Smelter Worker’s
Dijana Simonovic, for the Respondent Unifor
Union, Local 598/Unifor and Ontario
Labour Relations Board
Aaron Hart, for the Respondent Ontario
Labour Relations Board
Respondents
– and –
Glencore Canada Corporation
Ian Dick, Counsel for the Respondent
Glencore
Intervenor
HEARD at Sudbury: October 10, 2017
Kiteley, J. (Orally)
[1] The Applicant is seeking judicial review of two Ontario Labour Relations Board (OLRB) decisions dated August 25, 2015 and October 15, 2015. The OLRB dismissed the Applicant’s complaint that the Sudbury Mine, Mill & Smelter Worker’s Union, Local 598 (the Union) breached its duty of fair representation under s. 74 of the Labour Relations Act (Act).
[2] That decision was upheld by the OLRB on reconsideration.
Background
[3] The Applicant was hired in 2000 and almost 14 years later he received a letter dated January 22, 2014 terminating his employment for cause. According to the termination letter, during the period January 13 to 16, 2014 during an afternoon shift run, a surveillance camera captured multiple ultimate severity hoist infractions committed by him and a co-worker. The Director took the position that those infractions were contrary to the Occupational Health and Safety Act and contrary to company policies and procedures and could have resulted in a fatality. The discipline for that type of offense was termination of employment.
[4] At that time, the applicant was about 6 weeks from his 65th birthday.
[5] The co-worker’s employment was also terminated on that day and he received a letter with the same explanation.
[6] The Applicant immediately filed a grievance with the Union and the Union immediately processed it.
[7] On February 11, 2014 the Applicant participated in the second stage grievance meeting.
[8] In April 2014, the union representative viewed the video taken by the employer of the events that occurred in the several days preceding the termination. The employer did not permit others to view the video.
[9] After viewing the video and interviewing the Applicant, representatives of the Union concluded that the grievance had little prospect of success. The Union recommended settlement and received the Applicant’s agreement to pursue that path.
[10] The Applicant began drawing on his pension effective March 1, 2014. He did not consult with the Union as to the implications on the outstanding grievance nor did he report to the Union that he had taken steps to do so.
[11] On July 7, 2014, the employer made a written settlement proposal that would have replaced the termination with a resignation. On July 11, 2014 the Union communicated that offer to the Applicant and it was then that the Applicant advised that he had started receiving his pension effective March 1, 2014.
[12] On July 25, 2014, the Union withdrew the grievance on the basis that, having started to draw on his pension, the Applicant was retired, would not seek reinstatement and there was no point in pursuing the grievance. The Union informed the Applicant of the withdrawal and advised him he had 30 days to appeal that decision. He did not appeal.
[13] The co-worker who had been terminated at the same time had also filed a grievance. The hearing of that grievance was scheduled for December 11, 2014 at which time a settlement was reached.
[14] On May 4, 2015 the Applicant initiated this s. 74 application.
[15] On August 5, 2015, the OLRB conducted a consultation hearing with respect to the s. 74 complaint.
Decisions of the Tribunal
[16] In the decision dated August 25, 2015, the Tribunal identified the Applicant’s main allegations as follows:
(a) The union acted in an arbitrary manner by failing to fully investigate the applicant’s claim that there was a past practice of employees not strictly following the requirements of the OHSA Regulations, and the employer’s policy and procedures.
(b) The union was guilty of arbitrary conduct by not permitting him to view the employer’s video.
[17] I quote from paragraph 18 of the decision of the Tribunal as follows:
The harsh reality is that there is nothing in Houle’s allegations that could lead the Board to conclude that Unifor committed any “flagrant error” or exhibited a “non- caring attitude”, or acted in a manner that was “implausible” or “reckless” in the way it went about representing him. At its highest Houle’s allegation that Unifor failed to properly and fully investigate whether there was evidence of past practice of employees not following the OHSA signaling Regulations, and the employer’s policy and procedures, would be characterized as “simple negligence” given all the other surrounding circumstances.
[18] At paragraph 19, the Tribunal also held that:
…given the undisputed facts concerning whether a helpful past practice existed I find that Unifor’s actions were perfectly understandable and did not breach its section 74 duty.
[19] In the reconsideration decision dated October 15, 2015, the Tribunal at paragraph 10 corrected the timing issue of the co-worker’s grievance and at that paragraph held as follows:
What the Applicant fails to address in its Request for Reconsideration is the Board’s finding that the Union was entitled to take into account the fact that the Applicant had unilaterally retired from his employment without ever notifying the Union or seeking its advice as to whether such unilateral retirement/resignation would or could affect his grievance. Such failure on his part was fatal to the outcome.
Analysis
[20] The issues in the Application for Judicial Review are as follows:
(a) What is the standard of review of the decision on the merits of the case (August 25, 2015) and for its decision to deny the request for reconsideration dated October 15, 2015?
(b) Do the decisions of the board meet that standard?
(c) Did the Board’s process violate the principles of procedural fairness?
[21] In submissions, counsel for the Applicant agreed with the submissions on behalf of the Union, the intervenor and the Board that the standard of review is reasonableness. The issue arising from a s. 74 application is within the category of questions which attract deference to the decisions of the Board on a matter that is within the Board’s exclusive jurisdiction and which require the Board to apply the Act within a specialized labour relations context. This court has applied the standard of reasonableness to decisions arising from a s. 74 complaint that the Union had breached its duty of fair representation (Koscik v. Ontario Labour Relations Board 2015 ONSC 1652; Williams v. Ontario Labour Relations Board 2016 ONSC 1239) and to the Board’s reconsideration decisions (Roni Excavating Limited v. International Union of Operating Engineers, Local 793 2011 ONSC 4079; BA International Inc. v. Ontario (Labour Relations Board) 2005 45405).
[22] The Applicant in a s. 74 application must meet a high standard to establish arbitrariness as described at paragraph 17 of the original decision. We conclude that it was within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law for the Tribunal to have reached the decision that the Union had not acted arbitrarily and for the Tribunal not to reconsider that decision given the finding at paragraph 10 that the Applicant’s retirement without notifying the Union or seeking it’s advice was fatal to the outcome.
[23] The other aspect of this application is the allegation that the Board violated the principles of procedural fairness. The essence of the procedural fairness submission is that the Applicant did not have an arbitration. We do not consider that an aspect of denial of procedural fairness, rather it is wound up in submissions with respect to the s. 74 application.
[24] The Application for Judicial Review is dismissed.
[25] This Court orders costs in the amount agreed upon, namely, the Applicant shall pay costs to Unifor in the amount of $2000.
[26] The Board did not seek costs.
[27] The employer seeks costs in the amount of $2000 which is dismissed. The employer has throughout participated only as an intervenor.
__________________________________ Kiteley J.
I agree
Conway J.
I agree
Mulligan J.
Date of Reasons for Judgment: October 10, 2017
Date of Release: October 13, 2017
2017 ONSC 6054
DIVISIONAL COURT FILE NO.: 1021/16
DATE: 20171010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kiteley, Conway, Mulligan JJ.
BETWEEN:
David Houle
Applicant
Applicant
– and –
Sudbury Mine, Mill & Smelter Worker’s
Union, Local 598/Unifor and Ontario
Labour Relations Board
Respondents
Respondents
– and –
Glencore Canada Corporation
Intervenor
Intervenor
ORAL REASONS FOR JUDGMENT
Kiteley J.
Date of Reasons for Judgment: October 10, 2017
Date of Release: October 13, 2017