CITATION: Williams v. Ontario Labour Relations Board, 2016 ONSC 1239
DIVISIONAL COURT FILE NO.: 327/14 DATE: 20160218
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, RADY AND C. HORKINS JJ.
BETWEEN:
DONALD A. WILLIAMS Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD AND AMALGAMATED TRANSIT UNION LOCAL 113 Respondents
Abba E. Chima, for the Applicant Leonard P. Marvy, for the Respondent, Ontario Labour Relations Board Simon M. Blackstone, for the Respondent, Amalgamated Transit Union, Local 113
HEARD at Toronto: February 18, 2016
SWINTON J. (ORALLY)
[1] The applicant, Mr. Williams, applies for judicial review of a decision of the Ontario Labour Relations Board (“the Board”) dated April 1, 2014. The applicant brought a complaint that the respondent Amalgamated Transit Union Local 113 (“the Union”) violated its duty of fair representation under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“the Act”) because the Union failed to deal appropriately with his complaints about overtime assignments by the employer, the Toronto Transit Commission.
[2] The Board dismissed the complaint with respect to one time period, where the Union settled his grievance with the employer. The Board found that the Union had made reasonable efforts to keep the applicant informed of the grievance process, that the Union investigation of the grievance was reasonable, and that there was no evidence that the Union’s conduct was motivated by hostility, malice or ill-will towards the applicant. With respect to the second time period, the Board held that the Union failed in its duty of fair representation, as it should have inquired into whether the applicant wished to file a grievance with respect to this time period, and it should have investigated his allegations. As a remedy, the Board ordered the Union to file a grievance on the applicant’s behalf and directed the employer to waive any time limits with respect to this grievance.
[3] The applicant submits that he was denied procedural fairness because the Board refused his request to audiotape or transcribe the proceedings, and the Board proceeded by way of consultation rather than a hearing. He also argues that the Board’s decision was unreasonable because it found no violation of the duty of fair representation in respect to the first time period, and because its remedial order for the second period did not include an award of damages or an order that a declaration be posted in the workplace.
[4] The applicant has not demonstrated any denial of procedural fairness in the Board’s proceeding. There is no statutory or common law requirement that the Board transcribe or audio record its proceedings (see Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 386 (SCC), [1997] 1 S.C.R. 793 at paras. 75 and 81). The Board has a longstanding practice of not recording proceedings in the interests of economy, efficiency and informality, and the Board saw no reason to depart from that practice in the present case. The applicant has not shown that the lack of a transcript has prejudiced his ability to make his case on judicial review.
[5] The Board proceeded by way of a consultation, a process that has been found to be consistent with the duty of procedural fairness in other cases (see International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers, 2007 65617 (ON SCDC), [2007] O.J. No. 2460 (Div. Ct.) and International Brotherhood of Electrical Workers, Local 894 v. International Brotherhood of Electrical Workers, First District, Canada, [2014] O.J. No. 1709 (Div. Ct.)). Section 99 of the Act authorizes the Board to proceed by way of consultation when determining a complaint respecting the duty of fair representation, while s. 110 allows the Board to determine its own practice and procedure, while giving full opportunity to the parties to present their evidence and make their submissions. In addition, Rule 41 of the Board’s rules deals with expedited procedures, including those brought under s. 99. Rule 41.3 states:
Where the Board is satisfied that a case can be decided on the basis of the material before it and having regard to the need for expedition and labour relations matters, the Board may decide an application by limiting the parties’ opportunities to present their evidence or to make their submissions, or without a hearing.
Accordingly, the Board was authorized to proceed as it did by way of consultation and reasonably did so on the basis of this record and in light of the dispute before it.
[6] While the applicant argues that he should have been given an opportunity to cross-examine Union witnesses, there was no denial of procedural fairness. The applicant had ample opportunity to be heard through written and oral submissions. He was able to respond to the facts and arguments raised by the Union and the employer. Moreover, I am not satisfied that there were issues of credibility that required cross-examination, as the main issue before the Board was the sufficiency of the Union’s investigation and treatment of the overtime grievance.
[7] I now turn to the Board’s decision on the merits. The standard of review of the decision is reasonableness.
[8] In my view, the Board’s decision with respect to the first overtime period was reasonable. The task of the Board was to determine if the Union acted arbitrarily, discriminatorily or in bad faith. As the Board stated at para. 29 of its reasons, the jurisprudence requires that the conduct be more than merely wrong or mistaken to breach s. 74.
[9] While the applicant disagrees with the Board’s conclusions and characterizations of the Union’s conduct, the Union is not held to a standard of perfection. Based on the material before it, the Board reasonably made its conclusions respecting the adequacy of the communications to the applicant, the adequacy of the investigation, the lack of bad faith, and the reasonableness of the settlement.
[10] I turn now to the remedial order respecting the second overtime period. That order was reasonable, as it made the applicant whole by requiring the Union to launch a grievance on his behalf.
[11] Accordingly, the application for judicial review is dismissed.
COSTS
[12] I have endorsed the Application Record, “This application is dismissed for oral reasons delivered by me today. Costs to the Union fixed at $4,000.00 all inclusive, payable by the applicant. The Board does not seek costs.”
___________________________ SWINTON J.
RADY J.
C. HORKINS J.
Date of Reasons for Judgment: February 18, 2016
Date of Release: February 22, 2016
CITATION: Williams v. Ontario Labour Relations Board, 2016 ONSC 1239
DIVISIONAL COURT FILE NO.: 327/14 DATE: 20160218
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, RADY AND C. HORKINS JJ.
BETWEEN:
DONALD A. WILLIAMS Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD AND AMALGAMATED TRANSIT UNION LOCAL 113 Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: February 18, 2016
Date of Release: February 22, 2016