Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2018 ONSC 641
CITATION: Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2018 ONSC 641
DIVISIONAL COURT FILE NO.: 262/17
DATE: 2018 01 25
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, VARPIO. and MYERS JJ.
BETWEEN:
TORONTO TRANSIT COMMISSION
Applicant
– and –
AMALGAMATED TRANSIT UNION, LOCAL 113, A DIRECTOR APPOINTED UNDER THE OCCUPATIONAL HEALTH AND SAFETY ACT AND THE ONTARIO LABOUR RELATIONS BOARD
Respondents
COUNSEL:
Michael Hines and Dolores Barbini, for the Applicant
Joshua Phillips and Kristen Allen for the Respondent, Amalgamated Transit Union Local 113
Leonard Marvy and Aaron Hart for the Respondent, The Ontario Labour Relations Board
Gráinne McGrath and Graeme Adams, for the Respondent, A Director Appointed Under the Occupational Health and Safety Act
HEARD at Toronto: January 25, 2018
ORAL REASONS FOR JUDGMENT
MYERS J. (Orally)
[1] The applicant asks for an order by way of judicial review:
(a) quashing the decision of the Ontario Labour Relations Board dated December 19, 2016 in which the board declined to adjudicate an appeal by the ATU under the Occupational Health and Safety Act, RSO 1990, c.O.1; and
(b) requiring the OLRB to hear the appeal.
[2] Reviewing the board’s reasons and order, it is apparent that it has adjourned the appeal pending the outcome of a grievance arbitration between the same parties arising out of the same concerns. The facts and legal issues in the grievance overlap with the facts and issues in the appeal. The grievance process commenced some ten months before the refusal to work that underpins the proposed appeal.
[3] In considering the adjournment request, the board cited the appropriate considerations of practicality and fairness/absence of prejudice.
[4] The TTC argues that the board is not entitled to decline to exercise its exclusive appellate jurisdiction under OHSA or to subordinate its own decision-making authority to an arbitrator hearing a grievance under the collective agreement between the parties. The difficulty with that argument is that, at this stage, the board has not made any final finding or determination. It has not ruled that it will not hear the appeal or that its jurisdiction is to be subordinated to that of the arbitrator. Rather, it has exercised its undoubted jurisdiction to adjourn a hearing on the basis that it is more practical and appropriate for the related arbitration to proceed first. We do not know yet what the outcome of the arbitration will be and what, if any, effect that decision may have on the board’s handling of the adjourned appeal.
[5] The TTC acknowledges that the order that it asks us to review is an interim order. The order defers but does not finally resolve the appeal. The TTC also accepts that the doctrine of prematurity precludes judicial review of interim decisions made by administrative tribunals in all but exceptional cases. It argues that this case is exceptional because the effect of the adjournment is to defeat the statutory intention to provide the parties an expeditious appeal hearing before the proper tribunal involving the proper parties. Moreover, TTC argues that the adjournment exacerbates the risk of conflicting decisions between the arbitrator and the board.
[6] In our view, this case is not exceptional. The board has not declined to exercise its jurisdiction. Rather, it granted an interlocutory adjournment of the appeal hearing so as to be informed by the arbitrator’s decision before determining how to proceed with the appeal.
[7] Subsection 61 (3.6) of the OHSA provides for the board to determine its own procedures in an appeal. There is no discernable overriding legislative intention to fetter the board’s discretion so as to prevent it from adjourning a hearing in a proper case. Moreover, while the Inspector under OHSA is not a party to the arbitration, it remains a party to the appeal once the appeal comes on for hearing. The exclusion of the Inspector from the arbitration does not deny the parties of the Inspector’s involvement in the appeal as provided in the legislation. Finally, while the TTC disagrees with the board’s view that allowing it to be informed by the outcome of the arbitration will decrease the risk of inconsistent outcomes, the issue is entirely speculative at this point. How the board will avoid inconsistent outcomes may be a matter with which it has to grapple. Or, it may never become a relevant issue depending on the outcome of the arbitration.
[8] Until the appeal is heard and the board makes a final decision, it is premature for this court to be engaged.
[9] The TTC challenges the sufficiency of the board’s reasons. However, in our view, the path followed by the board is both apparent and well within the range of reasonable outcomes that was before it on the ATU’s adjournment request.
[10] In light of our decision, we do not need to decide whether the TTC has also failed to exhaust its remedies at the board and, if so, whether this too ought to stand as a bar to prevent it from seeking judicial review at this time.
[11] The application is therefore dismissed.
C. HORKINS. J.
[12] I have endorsed the Application Record of the Applicant as follows: “This Application for Judicial Review is dismissed. Oral reasons provided by Myers J. Costs have been agreed on. The Applicant shall pay the Respondent Amalgamated Transit Union, Local 113 costs in the amount of $7,500 all inclusive.”
___________________________ MYERS J.
I agree
C. HORKINS J.
I agree
VARPIO J.
Date of Reasons for Judgment: January 25, 2018
Date of Release: February 2, 2018
CITATION: Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2018 ONSC 641
DIVISIONAL COURT FILE NO.: 262/17
DATE: 2018 01 25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, MYERS and VARPIO JJ.
BETWEEN:
TORONTO TRANSIT COMMISSION
Applicant
– and –
AMALGAMATED TRANSIT UNION, LOCAL 113, A DIRECTOR APPOINTED UNDER THE OCCUPATIONAL HEALTH AND SAFETY ACT AND THE ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
MYERS J.
Date of Reasons for Judgment: January 25, 2018
Date of Release: February 2, 2018