National Ballet of Canada v. Glasco et al.

[Indexed as: National Ballet of Canada v. Glasco]

49 O.R. (3d) 223

[2000] O.J. No. 1071

Court File No. 176/2000

Ontario Superior Court of Justice Divisional Court O'Leary J. March 31, 2000*

*Note: This judgment recently came to the attention of the editors.

Arbitration -- Award -- Stay of award -- Arbitrator making interim award suspending notice of non-renewal of dancer's employment contract and ordering that dancer be assigned roles in usual manner pending final award -- Ballet company bringing application to set aside award on grounds that arbitrator did not have jurisdiction to make it -- Company moving for order staying interim award -- Motion dismissed -- Judicial review application raising serious question -- Company would not suffer irreparable harm if stay not granted -- Any further hiatus in her dancing could be fatal to dancer's career -- Balance of convenience favoured dancer.

After she was informed by the applicant ballet company that her contract of employment would not be renewed when it expired, the respondent G filed a grievance that her employment had been wrongfully terminated, brought an action in the Superior Court of Justice against the applicant and filed a proceeding with the Ontario Labour Relations Board asking that the notice that her contract would not be renewed be declared a nullity. The parties agreed to submit the grievance, the lawsuit and the labour relations proceeding to private binding arbitration. The arbitrator made an interim award suspending the notice of non-renewal pending the final award and ordering that G be assigned roles and performances in the usual manner. The applicant brought a motion for an order staying the interim award on the grounds that the arbitrator did not have jurisdiction to make it.

Held, the motion should be dismissed.

The applicant's argument that the arbitrator lacked the power to reinstate G was by no means frivolous or vexatious. The argument raised a serious issue to be disposed of on the application for judicial review.

The applicant had not established that it would suffer irreparable harm if the stay was not granted.

G was a mature artist in the final stages of her career. Any further hiatus in her dancing was likely to prevent her from being able to resume her career. Such a loss to her was impossible to measure and could not adequately be compensated for by monetary damages. The balance of convenience favoured G.

MOTION for a stay of an interim arbitral award.

Cases referred to RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, 60 Q.A.C. 241, 111 D.L.R. (4th) 385, 164 N.R. 1, 20 C.R.R. (2d) D-7, 54 C.P.R. (3d) 114

Statutes referred to Arbitration Act, 1991, S.O. 1991, c. 17, ss. 8(1), 31 Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 48(12), (13), 98

Mark D. Contini, David G. Cowling and William C. McDowell, for applicant, National Ballet of Canada. James K. McDonald and Jeffrey Sack, Q.C., for respondent, Kimberly Glasco. Harold F. Caley, for respondent, Canadian Actors' Equity Association.

Reasons for Decision

[1] O'LEARY J.: -- On March 16, 2000 arbitrator Christopher Albertyn made an interlocutory award suspending the December 1998 notice of non-renewal of Kimberly Glasco's employment contract pending the outcome of the main action, deeming Ms. Glasco to be employed by the National Ballet of Canada ("Ballet"), and ordering that she be assigned roles and performances in the usual manner pending the outcome of the main action.

[2] Ballet then brought an application for judicial review of that interlocutory order on the grounds that the arbitrator did not have the jurisdiction to make it. That application is scheduled to be heard on May 9, 2000 [reported p. 230 post].

[3] Ballet has also brought a motion, heard by me on March 29, 2000 asking for an order staying the award of the arbitrator.

[4] In order to obtain a stay, Ballet must establish that there is a serious question to be tried, that if the stay is not granted it will suffer irreparable harm and that if the stay is not granted it will suffer greater harm than Glasco will if the stay is granted.

Is there a serious question to be heard by the Divisional Court on the application for judicial review?

[5] Following the receipt by Glasco of notice that her contract of employment would not be renewed after its expiry on June 30, 1999, Canadian Actors' Equity Association on behalf of Glasco filed a grievance that her employment had been wrongfully terminated. Glasco brought an action in the Superior Court of Justice against Ballet and also filed a proceeding with the Ontario Labour Relations Board asking that the notice that her contract would not be renewed be declared a nullity because it was a reprisal against her for speaking out on behalf of dancers with the Ballet.

[6] On March 18, 1999 by a written agreement, Glasco, National Ballet and Canadian Actors' Equity Association agreed to submit the grievance, the lawsuit and the proceeding before the Ontario Labour Relations Board ("OLRB") to private binding arbitration.

[7] It was agreed "the arbitrator will have all the powers and remedies of the court, tribunal or arbitration board in those proceedings", that the arbitrator would be Christopher Albertyn and that the arbitration would proceed and be enforceable under the Arbitration Act, 1991, S.O. 1991, c. 17.

[8] Paragraph 13 of the March 18, 1999 agreement reads in part:

The parties agree that the arbitrator has jurisdiction to determine all issues raised in the lawsuit, the OLRB complaint, and the grievance filed on behalf of Glasco and no objections will be made by any party to the arbitrator's jurisdiction, without prejudice to the abilities of the parties to make argument at the conclusion of the hearing with respect to remedy and without prejudice to the right of any party to rely on the existence of a collective agreement as an evidentiary matter.

[9] It is the position of Ballet that the words of the agreement which state"the arbitrator will have all the powers and remedies of the court, tribunal or arbitration board in those proceedings" and "the parties agree that the arbitrator has jurisdiction to determine all issues raised in the lawsuit, the OLRB complaint, and the grievance filed on behalf of Glasco", by implication mean the arbitrator will have the powers but only the powers that a court, an arbitrator under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A and the OLRB would have had if the matters had stayed in their hands.

[10] The Labour Relations Act, 1995 reads in part:

98(1) The Board may make interim orders concerning procedural matters on application in a pending proceeding and, with respect to the Board, the power to make interim orders under this subsection applies instead of the power under subsection 16.1(1) of the Statutory Powers Procedure Act.

(2) The Board shall not make an order under subsection (1) requiring an employer to reinstate an employee in employment.

48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,

(i) to make interim orders concerning procedural matters;

(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.

(13) An arbitrator . . . shall not make an interim order under clause (12)(i) requiring an employer to reinstate an employee in employment.

[11] Accordingly arbitrator Albertyn whether exercising the power of the Board or an arbitrator under the Labour Relations Act was without jurisdiction to reinstate Glasco on an interim basis. Further this court, and so Albertyn exercising such power, was without jurisdiction to grant reinstatement since the issue in dispute arises under a collective agreement and must by the provisions of the Labour Relations Act be determined by arbitration.

[12] Arbitrator Albertyn took the position however that since the March 18, 1999 agreement provides"the arbitration will proceed and be enforceable under the Arbitration Act", that he has all the powers of an arbitrator under that Act. He says the words of the agreement spelling out that he has powers of the court, tribunal or arbitration board augment rather than restrict his powers as an arbitrator under the Arbitration Act, 1991.

[13] I note there are no words in the March 18, 1999 agreement that specifically take away Albertyn's power as an arbitrator under the Arbitration Act. If the parties had wished to take away such power they could have easily so provided. In my view the arbitrator is right when he says he has all the powers of an arbitrator under the Arbitration Act including the power to grant an interlocutory injunction. In that regard the Arbitration Act, 1991 provides:

8(1) The court's [Superior Court of Justice] powers with respect to the detention, preservation and inspection of property, interim injunctions and the appointment of receivers are the same in arbitrations as in court actions.

31. An arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies.

[14] Just because in my view Albertyn had the power to reinstate Glasco does not mean there is no merit to the argument that he lacked that power. The argument is by no means frivolous or vexatious. In my view the argument raises a serious issue to be disposed of on the application for judicial review no matter what deference the court must show to the decision of arbitrator Albertyn.

[15] Will the National Ballet of Canada suffer irreparable harm if the stay is not granted?

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision [citation omitted]; where one party will suffer permanent market loss or irrevocable damage to its business reputation [citation omitted]; or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined [citation omitted].

(Per Sopinka and Cory JJ. in RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311 at p. 341, 111 D.L.R. (4th) 385 at p. 405)

[16] As to damages the Ballet is likely to suffer if a stay is not granted, virtually the same material that is now before me on this point was before the arbitrator.

[17] Based on that material the Ballet claims it will suffer financial loss that it will be unable to recoup from Ms. Glasco if it is eventually decided by the arbitrator she is not entitled to reinstatement. The Ballet says her $96,000 annual salary will be largely or entirely wasted if she is reinstated and appears in relatively few performances. Ms. Glasco agrees she only danced in eight performances in her last year with the Ballet, but says that was partly because she only danced once in the last six months of her contract following the notice of non-renewal she received in December 1998. In other words the decision not to use her more was not hers. She had danced some 28 times the previous years, considerably more than other dancers. She is prepared to assume a full load of performances.

[18] The Ballet is concerned that if Ms. Glasco is reinstated, even on an interlocutory basis, a message will be sent to donors and potential donors that the Ballet acted improperly towards Ms. Glasco and that Mr. Kudelka the Artistic Director, no longer has the authority to direct the company. That message it is said will undermine funding. That of course is speculation. So far as I can discern from the evidence, Ms. Glasco's reinstatement could help donations more than harming them. In any event the Artistic Director and other spokespersons for the Ballet have been imprudent in pronouncing that Ms. Glasco does not fit with the artistic director's vision for the Ballet, that she is deteriorating as a dancer, and hard to train. If harm flows to the Ballet from such statements it will not be the reinstatement that will have caused the harm but the unwise decision to carry on a public campaign against her. Albertyn states as follows p. 96 of his reasons:

The Ballet argues that Mr. Kudelka, in his capacity as principal choreographer of the Ballet, must have confidence in the ability of his dancers and when that is absent, as in the case of Ms. Glasco, then it is not possible for the choreographer to proceed positively to present productions of the highest quality. This consideration applies all the more, in the Ballet's submission, to Mr. Kudelka in his capacity as Artistic Director. In that role he must shape the artistic direction of the company. When he does that he takes account of the financial restraints within which he operates and, in order for him to fulfil the vision he has for the company, he must be able to exercise his professional, artistic judgement without having a dancer, like Ms. Glasco, whom he feels no longer justifies her presence in the company.

The Ballet is concerned that any order issued requiring it to assign dancing roles to Ms. Glasco may not be enforceable because the selection of dancers for roles is at the discretion of the choreographer (or his or her agent or successor) who created the ballet. That is not a matter the Ballet need be concerned about. An order requiring that Ms. Glasco be assigned roles will not require the Ballet and its artistic management to do more than it would do in normal circumstances on behalf of its dancers. The Artistic Director can sometimes facilitate or ease the grant of a role to one or other of his dancers in ballets of which he is not himself the choreographer. An order of interlocutory reinstatement for Ms. Glasco would require no more from the Artistic Director than he would normally do. Interlocutory relief to Ms. Glasco would not require visiting choreographers to assign roles to Ms. Glasco.

. . . Mr. Kudelka himself refers more to a difference of vision than to defects in Ms. Glasco's performance. Taking all of these considerations into account, on balance, I am not persuaded that the Ballet will be weakened by the performances which Ms. Glasco would give if reinstated in the interim.

[19] I agree with and adopt those words of the arbitrator. The Ballet has not established that it will suffer irreparable harm if the stay is not granted.

[20] Where lies the balance of convenience? Which will suffer the greater harm, Ms. Glasco if I stay the order for her reinstatement, or the National Ballet of Canada if I allow the order to stand?

[21] Ballet submits that any stay order need only last until May 9, 2000, a period of just six weeks. On May 9, 2000 it will become the responsibility of the Divisional Court, which is scheduled to hear on that day the application for judicial review, to decide whether any stay order is lifted or continued. It is said that what I have to compare is damage that may be caused to Ms. Glasco if she is kept from dancing with the Ballet for six more weeks, with the damage and inconvenience to the Ballet which has already made full arrangements for the spring season if she is allowed to return.

[22] I do not accept that any stay order I might make will only prevent Ms. Glasco from dancing with the Ballet for six weeks. The application for a stay was argued before me for a full day. Should I grant a stay, it is unrealistic to expect the court to spend another day on the same question six weeks from now. Any stay I might grant is likely to last until the application for judicial review is finally determined. Since Ballet can seek leave to appeal and, if leave be granted, can appeal the decision of the Divisional Court on the application for judicial review, such stay could last for months or even a year. Delay in the return of Ms. Glasco can only work to the benefit of the Ballet. Ms. Glasco is fully aware that she is entering the final stage of her career. A year ago she predicted she had another six years left as a principal dancer. Delays in the litigation and arbitration process has already cost her a full year. While she is making every effort to retain her endurance and skill, only performing and the preparation therefor can keep her skills honed to the highest level. She is 39 years of age but she is by no means a has- been. That can be deduced from the article by dance critic Deirdre Kelly which appeared in The Globe and Mail on April 17, 1999. I quote from that article:

If it was her swan song, which it could be depending on the outcome of an independent review of her dismissal from the National Ballet of Canada, Kimberley [sic] Glasco showed no signs of giving in to sadness when she performed the eponymous lead in Manon at Place des Arts last night.

The controversial principal dancer, who has been embroiled since December in a public battle with the National Ballet, was noticeably serene and confident when she stepped on stage for nearly 2.1/2 hours of polished, impassioned dancing.

Her steps flowed smoothly and there was a remarkable sense of subtlety about her portrayal of the prostitute from eighteenth-century France. She was in complete control throughout the evening and showed absolutely no signs of having lost the talent that has made her a prominent member of the National for these past 18 years. While management still contends that Glasco is beyond her prime, there were many in last night's audience (including 20 supporters from Toronto) who begged to differ.

When the 38-year old ballerina took her bows, the entire audience jumped to its feet and cheered loudly. Flowers were laid at her feet. Most surprising of all, when the house lights came on, a prolonged din could be heard from behind the curtain. Glasco's fellow dancers were themselves loudly proclaiming their admiration for her. The level of emotion was palpable. Glasco proved last night that she is still one hell of a dancer -- and popular at that.

[23] Glasco is a mature artist in the final stages of her career, performing at the highest level. Any further hiatus in her dancing is likely to prevent her from being able to resume her career. Such a loss to her is impossible to measure and cannot be adequately compensated for by monetary damages.

[24] The National Ballet of Canada will not suffer a fatal blow if the order for reinstatement stands but Ms. Glasco's dancing career will likely be finished if she is kept from dancing any longer.

[25] Ballet loses on the balance of convenience test. Ms. Glasco will suffer a far greater loss if a stay is ordered than Ballet will experience if the reinstatement order stands. The concerns of Ballet including the concern that the authority of the Artistic Director Mr. Kudelka will be undermined and he may quit because of the return of Ms. Glasco pales when compared to the ruin of Ms. Glasco's career if she is not reinstated.

[26] I therefore refuse the request for a stay of the reinstatement order made by the arbitrator. Costs of the motion to stay are reserved to the court hearing the judicial review application.

Motion dismissed.