CITATION: Cooray v. Ontario Public Service Employees Union, 2018 ONSC 3876
DIVISIONAL COURT FILE NO.: 324/16
DATE: 20180620
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY and SHEARD JJ.
BETWEEN:
CECIL COORAY
Applicant
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION and HER MAJESTY IN RIGHT OF ONTARIO, INTERVENOR
Respondents
Counsel:
Cecil Cooray, acting in person
Christopher Bryden, for the Respondent, Ontario Public Service Employees Union
Jonathan Rabinovitch, for Her Majesty in Right of Ontario, Intervenor
Aaron Hart and Leonard Marvy, for the Ontario Labour Relations Board
HEARD at Toronto: June 20, 2018
Oral Reasons for Judgment
CONWAY J. (Orally)
[1] The applicant, Cecil Cooray, seeks judicial review of the Ontario Labour Relations Board (the “Board”) decision dated June 6, 2016. The Board dismissed Mr. Cooray’s claim that the respondent, Ontario Public Service Employees Union (“OPSEU”), breached its duty of fair representation contrary to s. 74 of the Labour Relations Act, S.O. 1995, c. 1, Sched. A (the “Act”).
[2] At the relevant time, the applicant was employed by the Ministry of the Attorney General (MAG) as a Court Registrar and OPSEU was his bargaining unit. The applicant filed two grievances. The first grievance related to overtime assignments. Prior to the hearing at the Grievance Settlement Board (GSB), OPSEU attempted to mediate the matter. At the mediation, a heated interaction took place between the applicant and Stephen Giles, a Senior Grievance Officer with OPSEU, who believed the application had no prospect of success. However, OPSEU did not withdraw its referral of the grievance to the GSB and the application proceeded. Vice-Chair Herlich dismissed the grievance on April 3, 2012.
[3] The second grievance alleged that MAG discriminated against the applicant by failing to assign him to Family Court. Vice-Chair David Williamson dismissed the application on June 1, 2015. The applicant sought to challenge the Williamson decision. Mr. Giles, at the time the Acting Supervisor, Contract Enforcement Unit and Health and Safety Unit, sent an email dated June 29, 2015 to the applicant advising of Mr. Giles’ decision not to seek judicial review of the Williamson Decision. The applicant responded to Mr. Giles’ email expressing his disagreement with that decision and his belief that Mr. Giles was biased against him from their interaction on the overtime grievance.
[4] The applicant filed a complaint with the Board on September 15, 2015 alleging that OPSEU failed to represent him fairly, contrary to s. 74 of the Act. The Board (Vice-Chair McKellar) dismissed the application, finding that Mr. Giles neither was biased nor acting in bad faith when he refused to proceed with a judicial review application, because: (i) there had been no contact between the applicant and Mr. Giles for almost 3 years by the time Mr. Giles sent the June 29, 2015 email to the applicant; (ii) Mr. Giles’ email provided an accurate summary of the principles governing judicial review applications and a concise rationale for why an application could not succeed; and (iii) Mr. Giles was not a neutral decision-maker. His role required him to have an opinion.
[5] The standard of review where the Board is interpreting and applying its home statute (in this case s. 74 of the Act) is reasonableness. For questions of procedural fairness, there is no standard of review.
[6] With respect to the applicant’s submission that the Board erred in concluding that Mr. Giles was not biased and did not act in bad faith, there was no evidence to support the applicant’s position. The Board noted that OPSEU representatives are entitled to voice their opinions forcefully, which does not equate to bad faith. The Board considered Mr. Giles’s email to the applicant, which explained OPSEU’s rationale for not proceeding with a judicial review application. The Board’s decision that there was no bias or bad faith on the part of Mr. Giles was reasonable.
[7] The applicant alleges lack of procedural fairness and bias on the part of Vice-Chair McKellar with respect to the Board hearing. There is no merit to these submissions. Sections 99 and 110 of the Act permit the Board to use consultations for fair representation complaints. The applicant was represented by counsel, and did not object to the consultation process being used. His counsel cross-examined all of the OPSEU’s witnesses. The applicant was permitted to resubmit his complaint, and the process involved the exchange of detailed pleadings and documents, affording the Board a full record for the consultation. There is no evidence of a reasonable apprehension of bias on behalf of Vice-Chair McKellar.
[8] The application for judicial review is dismissed.
C. HORKINS J.
[9] I have endorsed the Application Record as follows: “The Applicant Cecil Cooray shall pay the Respondent, Ontario Public Service Employees Union costs fixed at $5,000 all inclusive.”
___________________________ CONWAY J.
I agree
C. HORKINS J.
I agree
SHEARD J.
Date of Reasons for Judgment: June 20, 2018
Date of Release: June 21, 2018
CITATION: Cooray v. Ontario Public Service Employees Union, 2018 ONSC 3876
DIVISIONAL COURT FILE NO.: 324/16
DATE: 20180620
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, CONWAY and SHEARD JJ.
BETWEEN:
CECIL COORAY
Applicant
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION and HER MAJESTY IN RIGHT OF ONTARIO, INTERVENOR
Respondents
ORAL REASONS FOR JUDGMENT
CONWAY J.
Date of Reasons for Judgment: June 20, 2018
Date of Release: June 21, 2018