Court File and Parties
COURT FILE NO.: 693/01
DATE: 20021022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, FLINN AND CHARBONNEAU JJ.
B E T W E E N:
MARILYN GARSHOWITZ Applicant
- and -
MINISTRY OF COMMUNITY AND SOCIAL SERVICES
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
- and -
ONTARIO LABOUR RELATIONS BOARD Respondents
Counsel: Stephen G. Giles, for the Applicant John Smith, for the Respondent Ministry Timothy G. M. Hadwen, for the Respondent OPSEU Voy T. Stelmaszynski, for the Respondent Ontario Labour Relations Board
HEARD: October 22, 2002
Oral Reasons for Judgment
CHARBONNEAU J.: (Orally)
[1] Applying the functional and pragmatic approach dictated by the Supreme Court of Canada in the case of Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Royal Oak Mines v. Canada Labour Relations Board et al. (1996), 133 D.L.R. (4th) 129, the proper standard of review is one of patent unreasonableness. The applicant's suggestion in her factum that less deference should be shown to this particular decision because the issue under review did not engage the Board's specialized labour relations expertise, is unfounded.
[2] The Board's decision is protected by both a full privative clause and a finality clause. The Board's jurisdiction was clearly engaged under the provisions of s.74 of the Act. The Board, in the exercise of its jurisdiction, properly made a finding of fact on the evidence before it and that decision has to be afforded substantial deference.
[3] The Board properly reviewed the whole of the evidence, addressed all the contentious points raised by the applicant and rejected them. Ultimately, the Board found that the final settlement agreement reached by the parties was as outlined in their written Memorandum of Settlement. This decision was not patently unreasonable; indeed it was a reasonable decision on the evidence as a whole.
[4] Having found that the parties had in fact not agreed that the employer would be liable to repay any E.I. premiums received by the applicant, the Board came to the conclusion that the Union had not failed to properly incorporate all of the agreed terms of the settlement in the memorandum nor failed to subsequently enforce the excluded term as alleged by the applicant.
[5] As a result, the Board found that the Union did not "act in a manner that is arbitrary, discriminatory or in bad faith in the representation of the applicant". The Board in the circumstances could come to no other conclusion. For all of the above reasons, the application for judicial review is dismissed.
[6] No order as to costs.
CARNWATH J.
FLINN J.
CHARBONNEAU J.
Date of Reasons for Judgment: October 22, 2002
Date of Release: October 25, 2002
COURT FILE NO.: 693/01
DATE: 20021022
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, FLINN AND CHARBONNEAU JJ.
B E T W E E N:
MARILYN GARSHOWITZ Applicant
- and -
MINISTRY OF COMMUNITY AND SOCIAL SERVICES
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
- and -
ONTARIO LABOUR RELATIONS BOARD Respondents
ORAL REASONS FOR JUDGMENT
CHARBONNEAU J.
Date of Reasons for Judgment: October 22, 2002
Date of Release: October 25, 2002