COURT FILE NO.: 436/05
DATE: 20070327
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lane, matlow and linhares de sousa jj.
B E T W E E N:
THERMAL CERAMICS
Applicant
- and -
UNITED STEELWORKERS OF AMERICA, LOCAL 16506 and MORLEY GORSKY
Respondent
Thomas A. Stefanik, for the Applicant
Robert Healey, for the United Steelworkers
HEARD at Toronto: March 27, 2007
LANE J.: (Orally)
[1] We are all of the opinion that the application fails. In our view, the arbitrator’s interpretation of s.33(1) is correct. That being so, it is unnecessary to consider whether any other standard of review might be applicable.
[2] The employer’s directive to go to a hospital emergency department conflicted with the language of s.33(1) which clearly gives the employee the right to make the initial choice of the health professional to treat him.
[3] In our view, this right is subject only to the situation envisaged in the guidelines where the circumstances prevent the employee from exercising that choice. While s.38 of the Act obliges the employer to provide transportation as required to a hospital or medical practitioner or to the employee’s home, nothing in that section deprives the employee of the right given to him under s.33 to make the initial choice.
[4] There is a further issue as to whether this was a situation requiring the employee to obey the directive when it was given and bring a grievance later. This kind of issue lies at the heart of the labour relations expertise of the arbitrator and so attracts deference from the Court. Whether the privative clause is strong or not strong as was submitted, in our view the standard of review is at least reasonableness and there is nothing unreasonable in the arbitrator’s finding that as the order given to him was contrary to his rights under the Act, the employee was justified in disobeying it. The alternative of grieving later would have been meaningless because the choice given to him by the section could not thereby be restored.
[5] Accordingly, the application is dismissed.
[6] I endorse the Application Record, “The application is dismissed for reasons delivered orally. Costs to the respondent fixed at $7,500.00, plus disbursements of $718.20 and GST”.
LANE J.
MATLOW J.
LINHARES DE SOUSA J.
Date of Reasons for Judgment: March 27, 2007
Date of Release: March 29, 2007
COURT FILE NO.: 436/05
DATE: 20070327
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lane, matlow and
linhares de sousa jj.
B E T W E E N:
THERMAL CERAMICS
Applicant
- and -
UNITED STEELWORKERS OF AMERICA, LOCAL 16506 and MORLEY GORSKY
Respondent
ORAL REASONS FOR JUDGMENT
LANE J.
Date of Reasons for Judgment: March 27, 2007
Date of Release: March 29, 2007