CITATION: Toronto Community Housing Corporation v. Canadian Union of Public Employees, Local 79, 2018 ONSC 697
DIVISIONAL COURT FILE NO.: 636/17
DATE: 20180201
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
TORONTO COMMUNITY HOUSING CORPORATION
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and ARBITRATOR JASBIR PARMAR
Respondents
Lisa Bolton and Jessica Wuergler, for the Applicant
Douglas J. Wray and Ngozi Okidegbe, for the Respondent Canadian Union of Public Employees, Local 79
HEARD at Toronto: January 18, 2018
c. horkins J.
introduction
[1] The applicant, Toronto Community Housing Corporation ("TCH") has commenced an application for judicial review seeking to quash a Grievance Arbitration Board Award of Arbitrator Jasbir Parmar (the "Arbitrator") dated September 18, 2017 ("Award") and to dismiss the grievance. In the alternative, TCH asks that the matter be referred back for a new hearing before a different arbitrator.
[2] The Award upheld the grievance of the Canadian Union of Public Employees, Local 79 ("Union") that alleged Paulinus Ebosele ("Grievor") was dismissed from his employment without just cause.
[3] The Arbitrator ordered TCH to reinstate the Grievor's employment and restore all lost compensation, benefits and seniority. TCH submits that the Arbitrator made errors of law, breached the rules of natural justice and procedural fairness and made errors of mixed law and fact leading to an unreasonable result.
[4] TCH brings this motion for an interim order staying the Award, pending the final determination of its application for judicial review. In the alternative, if the request for an interim stay of reinstatement is denied, the Applicant seeks an interim stay of the requirement to restore lost compensation and benefits.
THE LEGAL FRAMEWORK
[5] The parties do not agree on the first branch of the test that applies to determine if a stay should be granted.
[6] The Union states that the Board's decision should not be stayed unless TCH can establish:
(i) a strong prima facie case on the merits of the application for judicial review;
(ii) that it will suffer irreparable harm if no stay is granted; and
(iii) that the balance of convenience favours the granting of a stay.
[7] TCH argues that the first part of the test only requires the moving party to show that there is a serious issue to be tried. I disagree.
[8] In the labour relations field, the courts in Ontario have generally applied the strong prima facie test. I accept that this is the test that must apply (Bur-Met Contracting Ltd. v. Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, Local 1669 at para. 3; National Waste Services Inc. v. National Automobile, Aerospace [2009] O.J. No. 4485 (Div. Ct.) at paras. 18-22; Ontario Public Service Employees Union v. Professional Institute of the Public Service of Canada, [2004] O.J. No. 5622 (Div. Ct.) at para. 2, Ellis-Don Ltd. v. Ontario (Labour Relations Board), 1992 6354 (ON SCDC), [1992] O.J. No. 1431 (Div. Ct.) at p.3; Sobeys Inc. v. U.F.C.W., Local 1000A, 1993 8659 (ON SC), [1993] O.J. No. 453 (Div. Ct.); Edgewater Gardens Long Term Care Centre v. Ontario Public Service Employees Union, [2008] O.J. No. 4489 (Div. Ct.) at paras 7-9, 11.
[9] While these cases involve the stay of a Labour Board award, I see no principled reason for applying the less onerous test (serious issue to be tried) to the request to stay a labour arbitration award. Arbitration and Board decisions are both reviewed on a reasonableness standard. Deference is owed to both decision makers. An Arbitrator’s findings of fact and assessments of credibility are owed the highest level of deference (United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 6500 v. Vale Canada Ltd., 2014 ONSC 3346 (Div. Ct.) at para. 21; Mechanical Contractors Assn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2014 ONSC 6909 (Div Court.) at para. 4).
Background fACTS and Analysis
[10] The Grievor was a tenant in a rental unit and THC was the landlord. The Grievor was also employed by THC as of 2009.
[11] In 2015, the Grievor became a Tenant Service Coordinator at THC. His responsibilities in this job included, matching prospective tenants with available rental units, making offers to eligible prospective tenants and collecting and processing rent payments.
[12] In December 2015, the Grievor and his family moved out of the THC rental unit and into a home that they had purchased. At this point, the Grievor’s lease with THC had not expired. As a result, he entered into a sublet agreement with a person (referred to as “W”).
[13] The Grievor collected rent from W for February 2016 and remitted this money to Dell Property Management (“Dell”).
[14] The Grievor also collected rent from W for March 2016. He did not remit this rent money to Dell. Instead, he kept the rent money as reimbursement for the one month deposit that he paid at the commencement of his tenancy.
[15] When THC learned about the sublet and the rent that the Grievor had collected, it conducted an investigation. As a result of the investigation, THC concluded that the Grievor had sublet his rental unit to W, contrary to his lease with THC. THC also concluded that the Grievor improperly accepted rent payments from W and failed to remit the March rent in order to trigger eviction proceedings against W.
[16] THC terminated the Grievor’s employment. The Grievor says that he was unjustly discharged.
[17] After a four day hearing, the Arbitrator released a decision that reviewed and analyzed the evidence. The Arbitrator found that the evidence did not support THC’s position that the Grievor had engaged in the alleged improper conduct and therefore there was no basis for the dismissal.
[18] This motion for an interim stay of the Award fails on the first part of the test. THC has not demonstrated that it has a strong prima facie case. I reach this conclusion for the following reasons.
[19] THC called one witness at the arbitration, the investigator. He had no direct knowledge of the events that were alleged to constitute misconduct.
[20] The Grievor testified and explained why he did what he did. This evidence had been provided to the investigator. The Grievor said that he gave notice to Dell that he was terminating his lease. He testified that he obtained permission from Dell employees, Nicoleta and later Hedi, to have W added as an occupant in his unit for the remainder of his lease term. The Grievor understood that when he moved out of the unit, W would have to leave as well. The Grievor testified that W was a single mother with four children looking for a place to live. He sublet his rental unit to her in an effort to assist her and not for any personal gain.
[21] The Grievor also testified about the rent money he received from W. W made one payment to the Grievor in February 2016 which he remitted to Dell for the February 2016 rent. He and W agreed that he would keep the second payment (received in March 2016) which amounted to one month's rent, as reimbursement for the one month deposit he paid at the commencement of his tenancy. W was to pay the rent after February 2016 (that is, commencing in March 2016) directly to Dell.
[22] The arbitrator noted that THC had the onus of proving the allegations against the Grievor and failed to do so.
[23] THC did not call W or the Dell employees to testify. As a result, there was no evidence to challenge the Grievor’s evidence that he obtained consent from the Dell employees to rent his unit to W. There was also no evidence to support THC’s position that the March money was paid as rent, rather than reimbursement for the Grievor’s rent deposit.
[24] In summary, it is apparent from the Arbitrator’s reasons that she allowed the grievance and made the orders, because THC led no direct evidence to challenge the Grievor’s testimony.
[25] In these circumstances I find that there is no strong prima facie case for judicial review. Since THC has failed to meet the first step of the test, it is not necessary to consider the remaining parts of the test. All three parts must be satisfied to justify a stay.
[26] Finally, I reject the request for the alternative relief. The same test and analysis applies. The test is either satisfied or it is not. Having decided that there is no strong prima facie case for judicial review, I see no logical basis for allowing the stay to be applied to the Grievor’s remedy award. The motion is dismissed.
[27] The parties cannot agree on costs of this motion. The Union seeks $4,000 all inclusive. If the THC had been successful, it was seeking $20,000. The quantum of their costs highlights the reasonableness of the Union’s costs.
[28] I order the THC to pay the Union costs fixed at $4,000 all inclusive.
___________________________ C. Horkins J.
Released: February 1, 2018
CITATION: Toronto Community Housing Corporation v. Canadian Union of Public Employees, Local 79, 2018 ONSC 697
DIVISIONAL COURT FILE NO.: 636/17
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
TORONTO COMMUNITY HOUSING CORPORATION
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and ARBITRATOR JASBIR PARMAR
Respondents
REASONS FOR JUDGMENT
C. Horkins J.
Released: February 1, 2018