Court File and Parties

CITATION: Gilinsky v. Arbitrator Joseph D. Carrier, 2012 ONSC 5497

DIVISIONAL COURT FILE NO.: DC-11-00000284-00JR

DATE: 20121001

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: John Gilinsky, Applicant

AND:

Arbitrator Joseph D. Carrier, Peel District School Board (PDSB), and Ontario Secondary School Teachers' Federation, Respondents

BEFORE: Pardu J.

COUNSEL: John Gilinsky in person

Roy Filion and Lauren Chang McLean, for the Peel District School Board

Simon Blackstone and Karen Ensslen, for the Ontario Secondary School Teachers' Federation

HEARD: September 25, 2012

ENDORSEMENT

[1] The Applicant moves to set aside a Registrar's order dismissing his application for judicial review on the ground that it had not been perfected within a year. He is a teacher who was placed on a medical leave against his wishes. The union, Ontario Secondary School Teachers' Federation ("OSSTF") filed a grievance and sought reinstatement to active teaching and reimbursement for the loss of sick leave credits and other losses. Mr. Gilinsky filed a Notice of Application for Judicial Review of the decision of an arbitrator which dismissed the grievance, upheld the decision by the Peel District School Board and concluded that Mr. Gilinsky's "medical condition has and continues to be impede his ability to perform all aspects of his teaching profession as required." (See para. 19, decision of Joseph P. Carrier, December 4, 2010.)

[2] The Applicant submits in his Notice of Application for Judicial Review that the arbitration was procedurally unfair, that the arbitrator was biased, that counsel for the Board and the union contributed to the unfairness of the hearing, that counsel for the union did not represent him in good faith, did not adequately consult with him or keep him informed, and did not represent him fairly.

[3] The union and the employer submit that the motion should be dismissed on the ground that Mr. Gilinsky does not have standing to bring an application for judicial review of the arbitration to which the union and the employer were parties, although his interests were at stake at the hearing.

[4] The test applicable to a motion to set aside an order of the registrar made in these circumstances was summarized in Paulsson v. Cooper, 2010 ONCA 21 at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

In that case where there was no real chance of success in the appeal, the motion to set aside the registrar's dismissal order was dismissed.

[5] In Noël v. Société d'énergie de la Baie James, 2001 SCC 39, the court discussed the reasons why an employee does not have standing to challenge an arbitration award he or she believes to be unreasonable.

Given the day-to-day reality of managing collective agreements, the interpretation of arbitration awards, and the abundance of litigation in this area, a union cannot be placed under a duty to challenge each and every arbitration award at the behest of the employee in question on the ground of unreasonableness of the decision, even in dismissal cases. The rule is that the employer and the union are entitled to the stability that results from s. 101 L.C., which provides: "The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned...". Judicial review must therefore not be seen as a routine way of challenging awards or as a right of appeal. Accordingly, even in discipline and dismissal cases, the normal process provided by the Act ends with arbitration. That process represents the normal and exclusive method of resolving the conflicts that arise in the course of administering collective agreements, including disciplinary action. In fact, this Court gave strong support for the principle of exclusivity and finality in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, at pp. 956-957 and 959, per McLachlin J. That approach is also intended to discourage challenges that are collateral to disputes which, as a general rule, will be definitively disposed of under the procedure for administering collective agreements. While judicial review by the superior courts is an important principle, it cannot allow employees to jeopardize this expectation of stability in labour relations in a situation where there is union representation. Allowing an employee to take action against a decision made by his or her union, by applying for judicial review where he or she believes that the arbitration award was unreasonable, would offend the union's exclusive right of representation and the legislative intent regarding the finality of the arbitration process, and would jeopardize the effectiveness and speed of the arbitration process.

[6] In Lee v. Trent University, 2010 ONSC 3307, Swinton J. elaborated on the jurisprudence which has followed:

Generally, an employee cannot seek judicial review of an arbitration award where the union decides not to do so, as the decision is one for the union to make, balancing the various competing interests. Indeed, the Supreme Court of Canada stated in Noël that an individual employee cannot require a union to pursue judicial review of an arbitration award as a matter of course (at para. 62).

However, the case law has identified three exceptional situations in which an individual may have standing to pursue arbitration or judicial review: where the collective agreement confers a right on the individual to pursue a matter to arbitration, where the union takes a position adverse in interest to the employee, and where the union's representation of the employee has been so deficient that the employee should be given a right to pursue judicial review (Re Hoogendoorn and Greening Metal Products (1967), 1967 20 (SCC), 65 D.L.R. (2d) 641 (S.C.C.); Singh v. Laurentian University, [1991] O.J. No. 526 (Div. Ct.); Yashin v. National Hockey League (2000), 2000 22620 (ON SC), 192 D.L.R. (4th) 747 (Ont. S.C.J.) at paras. 20-21).

[7] Here, nothing in the collective agreement gives a teacher the right to judicial review of an arbitrator's decision. The union counsel supported Mr. Gilinsky's position that he should return to teaching, and did not take a position adverse to him. There is no affidavit evidence before me that counsel for the union acted inappropriately. The allegations in the Notice of Application for Judicial Review describe matters that are more differences of opinion as to how union counsel should have participated in the arbitration. As observed with approval in Woldetsadik v. Yonge Street Hotels, 2012 ONSC 1580 at para. 8 "it is well established that a union, let alone its counsel is not required to take instructions from the grievor with respect to how to present a grievance at arbitration".

[8] I see no basis in the evidence before me upon which Mr. Gilinsky could have standing to bring judicial review of the arbitrator's decision. If he wishes to complain that his union did not fairly represent him his proper course would have been an application before the Ontario Labour Relations Board. Section 74 of the Labour Relations Act provides:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

[9] Accordingly the motion to set aside the Registrar's dismissal order, and for other consequential relief is dismissed.

[10] The Respondents do not seek costs from the moving party.

Pardu J.

Date: October 1, 2012