Court File and Parties

DIVISIONAL COURT FILE NO.: 600/07

DATE: 20081114

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C.J., CARNWATH and BELLAMY J.J.

B E T W E E N:

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

Applicant

• and -

THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR) and THE CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD

Respondents

Counsel: Mr. Ronald N. Lebi, for the Applicant Lisa Compagnone and Omar Shahab, for The Crown in Right of Ontario (Ministry of Labour), Respondent

HEARD: November 13, 2008

Reasons for Decision

BY THE COURT:

[1] This application raises two discrete issues. First, should it be dismissed, as the respondent suggests, because of delay, and second, if not, was the decision of the arbitrator unreasonable. Both parties agree the standard of review of the arbitral decision is reasonableness.

1. Delay

[2] The arbitrator’s decisions were issued April 11, 2007 and April 24, 2007. The applicant served its notice of motion December 10, 2007, seven and one half months after the decisions being appealed from were issued. The application record from the Grievance Settlement Board was received January 8, 2008. By not perfecting its claim within 30 days of receiving the application record, the applicant breached Rule 68.04 of the Judicial Review Procedures Act. The application was not perfected until April 24, 2008, 107 days later with no explanation. It is now November 13, 2008 and the application is being heard, over a year and a half after the issuance of the arbitrator’s decisions. As this court stated in Gigliotti v. Conseil d’Administration du Colleges des Grands Lacs, [2005] O.J. No. 2762 (Div.Ct.) at para. 29:

The Divisional Court has repeatedly stated that in judicial review proceedings, the applicant is obliged to commence and perfect the application as expeditiously as possible (Retail, Wholesale and Department Store Union, Local 414 v. Dominion Stores Limited, supra, at para. 4; United Food and Commercial Workers International Union, Local 617P v. Welling, supra, at paras 4-6; International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, supra at para 31).

[3] And at para. 30:

Indeed, the Divisional Court has held on numerous occasions that delay on the part of an applicant of six or more months in the commencement of an application and/or 12 or more months in the perfection of an application could be serious enough alone to warrant the dismissal of the application (Bettes v. Boeing/De Havilland, [2000] O.J. No. 5413 (S.C.J.), at para. 71.

[4] Some of the factors to be considered in determining whether to dismiss for delay are length of delay, whether time has been a reasonable explanation for it, and whether the delay has prejudiced the respondent.

[5] In the present case, we are satisfied all the factors are present. The unexplained delay earlier noted, while perhaps not unprecedented, is sufficiently egregious and without question has caused prejudice to the respondent. As a result, on that basis alone, we would dismiss the application. The reason disputes such as these ought to be resolved in a timely way is to encourage and preserve workplace harmony. Needless to say, this delay has prevented the parties from moving beyond this contentious litigation. We can only presume this delay in coming to a final resolution has “perpetuate(d) a fostering dysfunction in labour relations in this sector”. (See Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworks [2003] O.J. No. 2044 (Div.Ct.).) We can only presume this has prejudiced the respondent.

2. Reasonableness of the Arbitrator’s Decision

[6] There can be no question that labour arbitrators are entitled to significant judicial deference. (See Dunsmuir v. New Brunswick, [2008] (S.C.C.) 9.) In our view, Vice Chairman Brown’s decision denying back wages between the grievor’s discharge and her re-instatement was not only within his jurisdiction, but entirely reasonable in the circumstances. In his decision of April 11, 2007, the arbitrator reserved on the issue of a full and final remedy. That is entirely clear from his words, “The only remaining issues are remedial in nature.” Counsel for the applicant agrees that an arbitrator has broad remedial jurisdiction to deal with penalty. Their argument in this regard is simply that he exercised it in an unreasonable way. Counsel for the applicant also agrees the arbitrator was not functus after his initial decision. Having said that, we are all of the view that the arbitrator had the authority to substitute the penalty he did for the ultimate penalty, dismissal. (See Heustis v. New Brunswick (Electric Power Commission) [1979] S.C.J. No. 70, p. 10 (S.C.C.).) The remedial authority of the arbitrator in matters such as these is broad. As was stated in Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] S.C.J. No. 24 (S.C.C.) at para. 54:

For arbitration to be effective, efficient and binding it must provide lasting, practicable solutions to workplace problems. Commensurate with the notion of exceptional circumstances as developed in arbitral jurisprudence is the need for arbitrators to be liberally empowered to fashion, appropriate remedies, taking into consideration the whole of the circumstances. (emphasis added)

[7] Moreover, s. 48(17) of the Labour Relations Act, 1995, S.O. 1995, provides arbitrators with broad discretion when dealing with penalty in the absence of a specific penalty provision in a collective agreement. In the circumstances of this case, involving performance that can only be described as substandard, if not derelict, the arbitrator was well within a reasonable range of available sanctions. Indeed, the jurisprudence is rife with examples of lengthy suspensions being substituted for discharges.

[8] Finally, there is no merit in the applicant’s argument that it was taken by surprise and that they were denied an opportunity to make penalty submissions. The whole issue of the appropriate remedy was in play throughout the hearing and the arbitrator so found. The applicant’s ability to make full submissions was in no way circumscribed by the arbitrator. Of course, procedural fairness requires that the parties be given a full opportunity to present evidence and make submissions. The Union in our view was wrong to conclude that the only remaining issue after the release of the first award was whether the arbitrator would consider the Ministry’s alternative argument.

[9] Throughout, the Union sought reinstatement with compensation for lost wages and benefits. The Ministry argued that the case warranted dismissal.

[10] Termination was found by the arbitrator to be excessive and he reserved on the issue of appropriate penalty, including whether reinstatement should be denied and the remedy limited to damages. This, in our view, did not, nor should it have precluded the arbitrator from arriving at a disposition he thought appropriate. All remedial possibilities were on the table and the Union should have been alive to that. There was certainly no denial of natural justice or procedural fairness.

[11] The application is dismissed with costs to the respondent, as agreed, fixed at $3,000 all inclusive.

Cunningham A.C.J.S.C.J.

Carnwath J.

Bellamy J.

Released: November 14, 2008