COURT FILE NO.: 355/06
DATE: 20061215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON and LINHARES DE SOUSA JJ.
B E T W E E N:
NASEEM JAMAL Applicant
- and -
CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD
- and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION
- and - HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY AND SOCIAL SERVICES Respondents
In Person Gavin J. Leeb, for the Respondent OPSEU Fateh Salim and (Felix) Kei Hei Lau, for Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services
HEARD at Toronto: December 15, 2006
ORAL REASONS FOR JUDGMENT
SWINTON J.: (Orally)
[1] The President of the panel presented a summary of facts at the outset of this hearing. Ms. Jamal, the applicant, agreed they were correct.
[2] The applicant seeks an order in the nature of mandamus requiring the Ontario Crown Employees Grievance Settlement Board (the “GSB”) to order the Ministry of Community and Social Services and the Ontario Public Service Employees Union (“OPSEU”) to re-open her file at the GSB. She also seeks to have the settlement, which she signed June 28, 2001, set aside.
[3] Assuming, without deciding, that the letter of June 16, 2006 from the GSB is a “decision”, the applicant has failed to satisfy the requirements to obtain an order in the nature of mandamus. To succeed, the applicant must meet the following requirements:
(i) There is a clear legal right to have the thing sought by her done and done in the manner and by the person sought to be coerced.
(ii) The duty must be actually due and incumbent upon the officer at the time of seeking the relief.
(iii) The duty must be purely ministerial in nature, plainly incumbent upon the officer by operation of law or by virtue of office and concerning which the officer possesses no discretionary powers.
(iv) There must be a demand and refusal to perform the duty.
See Guindon v. Ontario (Minister of Natural Resources), 2006 2051 (ON SCDC), [2006] O.J. No. 303 (Div. Ct.) at paragraph 40.
[4] The applicant has not met the first two requirements. She has no legal right to have the GSB act, as she has no standing before the GSB.
[5] The jurisdiction of the GSB is restricted to resolving and/or arbitrating grievances arising from differences and disputes between the “parties” to a collective agreement, that is, the union and the employer (see s.7(3) of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c.38. The Divisional Court in Smith v. Ontario Public Service Employees Union, [2003] O.J. No. 2139 at paragraph 9, held that a member of the bargaining unit represented by OPSEU does not have standing in his or her own right to process a grievance respecting employment. Only the union may do so. Indeed, the applicant concedes in her material that she does not have standing before the GSB.
[6] Moreover, the GSB owes no legal duty to the applicant to act in the way she requests. Absent a request from OPSEU, the GSB has no jurisdiction to reopen the file pertaining to her grievances. Therefore, this is not an appropriate case in which to order mandamus, given that the legal right and corresponding duty are absent.
[7] Finally, this Court, on an application for judicial review, has no jurisdiction to quash a settlement reached between the union, the employer and a union member.
[8] The applicant submitted that the settlement should be set aside because of union misconduct in failing to disclose certain material facts and in making certain misrepresentations. The union’s responsibility to a grievor is under its duty of fair representation found in s.74 of the Labour Relations Act, 1995, S.O. 1995, c.1. The applicant has availed herself of the proper process to deal with a complaint that the union violated its duty of fair representation. Her complaint to the Ontario Labour Relations Board was denied, and she has exhausted all legal means of challenging that decision. However, the fact that the applicant failed to obtain her desired remedy at the Labour Relations Board does not mean that the GSB or this Court has jurisdiction to set aside the settlement.
[9] Therefore, the application for judicial review is dismissed.
CARNWATH J.
[10] We take the view that this is not a matter for a substantial indemnity award, which we feel in most instances requires the presence of high handed and malicious conduct on the part of the other side. I think that there shouldn’t be a premium to be paid for tenaciousness necessarily. Insofar as the amount is concerned, the panel is of the view that given the reasonable expectations of the parties as conceived in the Boucher decision that there should be an award of $1,500.00 to the union and $1,500.00 to the Ministry, inclusive of fees, disbursements and GST, payable within 30 days.
SWINTON J.
CARNWATH J.
LINHARES DE SOUSA J.
Date of Reasons for Judgment: December 15, 2006
Date of Release: January 23, 2007
COURT FILE NO.: 355/06
DATE: 20061215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON and LINHARES DE SOUSA JJ.
B E T W E E N:
NASEEM JAMAL Applicant
- and -
CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD
- and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION
- and - HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY AND SOCIAL SERVICES Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: December 15, 2006
Date of Release: January 23, 2007