CITATION: Ma v. Ontario Labour Relations Board, 2018 ONSC 5959
DIVISIONAL COURT FILE NO.: 543/16
DATE: 20181009
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., CONWAY, and MYERS JJ.
BETWEEN:
YUCHAO MA
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, - AND – UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, LOCAL 1998 (USW LOCAL 1998) – AND – GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Respondents
Roy Tofilovski, counsel for the Applicant
Shaheen Harani, counsel for the USW Local 1998
Frank Cesario, counsel for University of Toronto
Aaron Hart, counsel for Ontario Labour Relations Board
HEARD at Toronto: October 4, 2018
REASONS FOR JUDGMENT
MYERS J.
The Application
[1] Mr. Ma seeks judicial review of the decision of the Ontario Labour Relations Board dated July 29, 2016 dismissing his application under s. 74 of the Labour Relations Act, 1995, SO 1995, c.1. In its decision, the Board dismissed Mr. Ma’s claim that the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1998 violated its duty to represent him fairly in his grievances against his former employer University of Toronto.
[2] Mr. Ma also seeks judicial review of the Board’s decision dated August 29, 2016 to decline to reconsider its dismissal of Mr. Ma’s proceeding against the union.
[3] For the reasons that follow, the application is dismissed.
Background
[4] Mr. Ma’s application alleged that the union had failed to represent him fairly in respect of six grievances that the union had filed to challenge the propriety of the decision of the University to terminate his employment on November 2, 2010. The employer claimed that it terminated Mr. Ma’s employment due to the reorganization of his lab which resulted in the elimination of Mr. Ma’s position. Mr. Ma claimed that the employer’s excuse was a sham masking the employer’s retaliation against Mr. Ma for making complaints and seeking accommodation regarding the scent of a graduate student who worked in close physical proximity to Mr. Ma.
[5] An experienced mediator met with the parties. Mr. Ma says that the mediator required that he be allowed to arbitrate the grievances if the mediation was unsuccessful. The parties agreed. During the mediation phase, the mediator advised the union and Mr. Ma that he had serious doubts about the union’s likelihood of success on the grievances.
[6] After consulting with Mr. Ma and obtaining legal advice, the union decided to withdraw all of the grievances. In addition, it declined Mr. Ma’s request that it move to recuse the mediator as arbitrator due to bias. Mr. Ma appealed the union’s decision to withdraw the grievances to its executive committee. The executive of the union agreed that five of the grievances would be withdrawn but that it would continue with one of the grievances.
[7] The union’s counsel advised some 17 months later that in his view the remaining grievance had little chance of success. After consulting with Mr. Ma, the union advised Mr. Ma in early January, 2015, that its executive had determined that it would not be proceeding with the last grievance. The union settled the grievance with the employer and obtained a monetary settlement for Mr. Ma.
[8] Mr. Ma then brought an application to the Board to ask it to find that the union had failed in its duty to represent him fairly.
The Board’s Process
[9] Section 99 of the Labour Relations Act provides that the Board is not required to hold a formal oral hearing on a complaint of this type.
[10] The Board’s practice was to consider these matters in a consultation process. The Board’s Information Bulletins #11 and #12 describe to participants the objectives and procedure for a consultation process. In essence, the Vice-Chair who conducts a consultation seeks to draw out the relevant facts and arguments to consider the complaint. He or she does not look at defences but just considers whether the complaint presents a case that is of sufficient merit to require the respondents to provide their defences.
[11] There was some confusion in the process undertaken by the Board in this case. The union asked the Board to dismiss the application summarily on the basis that it had no chance of success. In a decision dated March 17, 2016, the Vice-Chair ruled that he could not decide the motion on the written complaint alone. Instead, he referred the parties to a consultation process. He ruled at that time that the consultation would not be a hearing and it would not deal with the merits. Rather, it would deal solely with the question of whether Mr. Ma’s complaint disclosed facts that, if true and provable, would create a basis for finding that the union had violated its duty of fair representation. The Vice-Chair explained the process in that ruling and advised Mr. Ma that he would be questioned closely about his complaint. Moreover, the Vice-Chair notified Mr. Ma that as a result of the consultation, the Board may decide not to hear Mr. Ma’s application further or that only some or all of Mr. Ma’s allegations would proceed to a further hearing process.
[12] In a ruling dated April 19, 2016 the Vice-Chair mistakenly wrote that he had already dismissed the union’s motion to summarily dismiss Mr. Ma’s application. However, on being contacted by the parties, the Vice-Chair corrected his error on April 26, 2016. In his reasons dated April 26, 2016, the Vice-Chair explained the upcoming consultation process that had evolved from the initial discussion:
[6] What this means, in practical terms, of course is that the panel of the Board conducting the consultation will have a full and complete understanding of the merits of Mr. Ma’s case by the end of his answers and submissions. No relevant matter will be excluded and no relevant consideration will be ignored. At the end of that process, the Board will next consider the extent, if any, to which the Employer and the Union will need to respond.
[7] I say “if any” as I have not yet excluded the possibility that the panel of the Board hearing the matter may conclude that, having heard Mr. Ma’s case, there is nothing to which to respond. That is, whether one calls it a non-suit or a motion to dismiss, the application may be determined at the end of Mr. Ma’s case. It will, however, be Mr. Ma’s entire case and all of the relevant factual and legal considerations in it.
[13] As a result, it is clear that the consultation was to decide if Mr. Ma’s case would proceed based on his own allegations, his responses to detailed questioning on the merits at the consultation meeting, and submissions to be made by all of the parties.
[14] The consultation was held on July 6, 2016. In a thorough decision dated July 29, 2016 the Vice-Chair concluded that the union had not done anything “that could constitute a violation of section 74.” In fact, based on Mr. Ma’s allegations (and a few documents from the respondents to which Mr. Ma pointed in the consultation process) the union “went above and beyond what was required by section 74.” It had investigated all of the facts relevant to Mr. Ma’s grievances and came to a “well-researched, honest and exceedingly reasonable conclusion.”
[15] The Board therefore dismissed Mr. Ma’s application.
Jurisdiction and Standard of Review
[16] This application is brought under ss. 2 and 6(1) of the Judicial Review Procedure Act, RSO 1990, c J.1.
[17] All of the parties agree that on an application for judicial review that considers a decision of the Board under the Labour Relations Act, the standard of review is reasonableness. This is a deferential standard of review. The court is not re-hearing the matter or sitting on appeal from the Board. Wilton-Siegel J. recently described a reasonableness standard of review in Agyapong v. Jevco Insurance Company et al., 2018 ONSC 878, in this way:
[13] In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.
[18] The court will also intervene if the board denied the appellants procedural fairness or violated the principles of natural justice.
[19] It is important to emphasize that in reviewing a tribunal’s decision on judicial review, the court adopts a deferential standard. It considers the reasons holistically. It will not focus on minor individual complaints if they do not undermine the reasonableness of the decision as a whole. The Supreme Court of Canada made this point in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, 2011 SCC 62, at para. 16:
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[20] The Supreme Court of Canada made a more pointed direction in Law Society of New Brunswick v. Ryan, [2003] 1 SCR 247, 2003 SCC 20, at para. 56:
Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
Procedural Fairness
[21] Mr. Ma argues that he was denied procedural fairness by the Board. He argues that the April 26, 2016 reasons were “rather confusing and do not fully clarify” the process at the upcoming consultation for Mr. Ma. As a result, he says that he did not submit all of the documents that he should have submitted during the consultation.
[22] Mr. Ma also argues that the process was unfair because he was not allowed to explain fully the difference between his old employment position and the alleged new position created by the employer.
[23] In my view, while the process was not perfect, perfection is not required. The Vice-Chair made a mistake in his ruling of April 19 and then he corrected it in his ruling of April 26. The correction is clear and complete. Procedural mistakes must be correctable, otherwise proceedings would have to end every time a mistake is made. As long as any prejudice that may result from the mistake can be sufficiently remedied, it is not unfair to continue a proceeding after a procedural error has been corrected.
[24] In my view, the April 26 reasons set out clearly for Mr. Ma what was to happen at the consultation. Mr. Ma was given a full opportunity to make submissions and he was asked if he had anything else that he would like to say. In all, Mr. Ma was provided with ample notice of the process and a full and fair opportunity to state his case.
[25] Further, Mr. Ma concedes that when he complained that he had not submitted all of his documents, the Vice-Chair received those documents as part of the reconsideration process. The Vice-Chair reviewed the documents and ruled that they did not help Mr. Ma’s position. In fact, he found them to be harmful to Ma.
[26] The Board did not violate the doctrine of procedural fairness and did not deny Mr. Ma natural justice.
Alleged Substantive Errors
Failure to Deal with Every Issue Raised
[27] Mr. Ma argues that the decision of the Vice-Chair was unreasonable in a number of ways. He argues that in his reconsideration decision, the Vice-Chair failed to deal with a number of complaints made by Mr. Ma concerning the initial decision. The Vice-Chair received and reviewed Mr. Ma’s comprehensive materials. He distilled the complaints down to two that he perceived to be of significance. He explained his reasons for not reconsidering the initial decision. There is nothing unreasonable in the Vice-Chair choosing to deal with only the points that he perceived as being significant in the reconsideration decision.
[28] Mr. Ma also argues that the Vice-Chair commented on the lack of original recordings of a meeting when he made no mention of the fact that transcriptions of the recordings were in evidence. It is clear from the Vice Chair’s reasons that he understood the point being made by Mr. Ma. He alleged that he had surreptitiously recorded employer representatives stating that it was eliminating his position due to lack of funding whereas the employer later changed its rationale. This, he argues, goes to the employer’s credibility. The Vice-Chair understood that point. What the evidence does not advance however, whether there was a transcript in evidence or not, is a claim against the union for violating its duty of fair representation.
Bad Faith
[29] Mr. Ma argues that the Vice-Chair erred at para. 71 of his decision in finding that Mr. Ma does not claim that the union acted in bad faith. Mr. Ma makes several allegations of bad faith in his pleading. We do not know if Mr. Ma was asked about bad faith during the consultation or what, if anything, he may have told the Vice-Chair. However, at the consultation, Mr. Ma was required to provide the outlines of his evidence of misconduct that could establish that the union had breached its duty of fair representation. The Vice-Chair properly set out the test for bad faith at para. 72 of the decision and, in any event, his findings that the union acted reasonably and honestly in para. 99 of the decision negative any claim of bad faith.
The Alleged Promise to Arbitrate
[30] Mr. Ma argues that when the union’s executive granted his initial appeal and agreed to continue with one of the six grievances, it was effectively promising to take the matter to arbitration at all costs. He argues that the union violated its promise when the union’s counsel determined that the case should be settled and the executive agreed to do so. He says that the union was required to take the case to arbitration to satisfy Mr. Ma’s desire to be heard despite what the union believed to be in its best interest.
[31] Mr. Ma did not plead this before the Board or in his factum. His counsel only raised it at the hearing of the application for judicial review. It cannot be an error for the Board not to resolve the issue that was never raised before it. In any event, there is no basis in law to find that the union is compelled to take a case to a hearing that it believes will not succeed. By settling, it obtained some compensation for Mr. Ma. Moreover, Mr. Ma’s argument ignores that the union may have its own strategic reasons for not wanting to proceed with a hearing that it believes it will lose. In my view, this argument has no merit.
Summary of Reasonableness
[32] On a full and fair reading of the Board’s detailed decision, it plainly and appropriately dealt with the issues and evidence presented by Mr. Ma. The result reached was transparent, intelligible, and among the alternatives available to the Board on the evidence and arguments before it. Mr. Ma points to numerous holdings or comments that he does not believe are perfectly correct. None of his points, either individually, or taken as a whole, undermine the clarity and intelligibility of the decision. There is no basis for the court to intervene in the Board’s decision in this case.
Outcome
[33] The application is therefore dismissed.
[34] The University and the Board do not seek costs. Mr. Ma and the union agreed that costs fixed at $8,000 all-inclusive should be paid to the successful party. Therefore Mr. Ma is ordered to pay costs of $8,000 to the union.
F.L. Myers J.
I agree _______________________________
Marrocco A.C.J.S.C.
I agree _______________________________
Conway J.
Release Date: October 9, 2018
CITATION: Ma v. Ontario Labour Relations Board, 2018 ONSC 5959
DIVISIONAL COURT FILE NO.: 543/16
DATE: 20181009
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., CONWAY, and MYERS JJ.
BETWEEN:
YUCHAO MA
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, - AND – UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, LOCAL 1998 (USW LOCAL 1998) – AND – GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Respondents
REASONS FOR JUDGMENT
Released: October 9, 2018