COURT FILE NO.: 06-DV-001253
DATE: November 26, 2007
SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)
RE: CANADIAN UNION OF POSTAL WORKERS and CANADA POST CORPORATION
BEFORE: Cusinato J., Valin J., and Shaw J.
COUNSEL: Barbara J. Nicholls for the Applicant Leslie Sanderson for the Respondent
E N D O R S E M E N T
[1] This is an application by the Canadian Union of Postal Workers for judicial review of paragraphs 2 and 3 on page 5 of the award of Arbitrator K.A. Hinnegan, dated July 7, 2006, in which, as conditions of reinstatement, he ordered that the gievor shall hold no Union position for the remainder of his year of employment and shall retire at age 60 as he undertook to do at the grievance hearing.
[2] The applicant’s objection is that those two conditions in the award were determined by the arbitrator without the parties or their counsel first having an opportunity to make submissions relating to them.
[3] While an arbitrator may grant any remedy that he/she deems appropriate, it is our view that Arbitrator Hinnegan should have afforded counsel the opportunity to make submissions on those two conditions before he made his award.
[4] The purpose of the duty of fairness is not to guarantee specific substantive results, but to ensure that before a decision is made, the party to be affected is given a proper opportunity to be heard. Farm Credit Corp. v. Pipe (1993), 16 O.R. (3d) 49 (C.A.).
[5] In these circumstances, we find there was a lack of procedural fairness. Consequently, conditions 2 and 3 are quashed, and the matter is remitted to Arbitrator Hinnegan for reconsideration following submissions by counsel on those issues.
[6] The applicant is entitled to its costs of the application in the amount of $3,250, inclusive of GST and disbursements.
Mr. Justice A. Cusinato
Mr. Justice G. Valin
Mr. Justice D. Shaw
Date Released: November 28, 2007
COURT FILE NO.: 06-DV-001253
DATE: November 26, 2007
SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)
RE: CANADIAN UNION OF POSTAL WORKERS and CANADA POST CORPORATION
BEFORE: Cusinato J., Valin J, and Shaw J.
COUNSEL: Barbara J. Nicholls for the Applicant Leslie Sanderson for the Respondent
ENDORSEMENT
Date Released: November 28, 2007