CITATION: Windsor-Essex Children’s Aid Society v. Canadian Union of Public Employees, Local 2286.1, 2016 ONSC 6482
DIVISIONAL COURT FILE NO.: 381/16
DATE: 20161014
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
THE WINDSOR-ESSEX CHILDREN’S AID SOCIETY
Applicant
(Moving Party)
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 2286.1
Respondent
(Responding Party)
Anna M. Vannelli, for the Applicant (Moving Party)
James A. Renaud, for the Respondent (Responding Party)
HEARD at Toronto: October 14, 2016
C. HORKINS J. (Orally)
[1] The applicant, The Windsor-Essex Children’s Aid Society (“Applicant”) brings this motion for an order staying the interim award of Arbitrator Ian A. Hunter dated June 1, 2016 and an order that no further proceedings be scheduled in the matter pending the outcome of the Applicant’s application for judicial review of this interim award.
[2] The test on a stay motion is the same as the test for an interlocutory injection as set out in RJR MacDonald v Canada (Attorney General), [1994] 1 SCR 311 at para. 43. The Divisional Court has consistently applied this test on stay motions: see Rew v. Association of Professional Engineers of Ontario, 2016 ONSC 4043 at para. 16.
[3] The Applicant must show: (a) that there is a serious question to be determined; (b) that the Applicant will suffer irreparable harm if the stay is denied; and (c) that the balance of convenience favours making the stay order.
[4] The following background provides context for this motion.
[5] An employee of the Applicant was disciplined. That employee grieved the discipline. The respondent, Canadian Union of Public Employees, Local 2286.1 (“Respondent”) filed an applicant for an expedited arbitration. Arbitrator Hunter was appointed and set May 13, 2016 as the hearing date.
[6] On May 4, 2016, the Applicant wrote a letter to the Respondent that effectively withdrew the various elements of the discipline. It is apparent from this correspondence that the Applicant thought that the letter would resolve the grievance. However, it did not. It was the Respondent’s position that the Applicant could not arbitrarily and unilaterally determine the sufficiency of the grievor’s remedy. The Respondent maintained that the grievor was not made whole and that she was entitled to proceed with her grievance before the Arbitrator.
[7] On May 13, 2016, the parties attended before Arbitrator Hunter. The Applicant maintained that the Arbitrator did not have jurisdiction to proceed because in its view the matter was fully determined by the letter. However, if the matter was not fully determined by the letter, then the Applicant argued that it should be entitled to withdraw its letter and reimpose the discipline.
[8] After the hearing, the Arbitrator issued his interim award. The sole issue that was determined that day was the preliminary issue raised by the Applicant, essentially that the grievor had nothing to grieve about because the Applicant’s letter had withdrawn the discipline and therefore the Arbitrator had no jurisdiction to proceed.
[9] Arbitrator Hunter issued an interim award that identified live issues between the parties. At page 12 of the interim award, he stated:
The grievance goes on to request (a) rescission of the suspension; (b) redress of earnings lost; and (c) removal of the disciplinary letter (Exhibit 3) from the Grievor’s personnel file. This has been done (Exhibit 6); therefore there is no “live” issue remaining between the parties on this aspect of the remedy.
The grievance then specifically requests that “Lisa be made whole”. The Employer considers that this has occurred, and somewhat presumptuously informed the Union and the Grievor that this result shall be “deemed” to have occurred. The Employer cannot dictate to the Union or the Grievor that they shall be satisfied with the Employer’s unilateral action. As Mr. Renaud contended, Exhibit 6 was not sent to the Union as an offer or a proposal; it was a fait accompli. No verbal ledgermain by the Employer can hide the fact that neither the Grievor nor the Union accept that the Grievor has been “made whole”. And Mr. Renaud has given the Employer at least a partial understanding of what additional remedies the Union will be requesting at arbitration to make the Grievor whole (declaratory relief; damages). These issues are not moot and remain a “present live controversy” between the parties.
[10] As a result, the Arbitrator ordered that the grievance would proceed. The Arbitrator rejected the Applicant’s request to effectively reimpose the discipline that the Applicant’s letter had withdrawn. The Arbitrator stated: “This is not going to happen. The Employer unilaterally chose to rescind the discipline imposed in the original letter (Exhibit 3) an I will not allow the Employer to resile from that at arbitration…”. The Arbitrator concluded that he had jurisdiction to proceed “pursuant to the Ontario Labour Relations Act and the Collective Agreement, to hear and determine the remaining issues raised in the grievance (Exhibit 1) which I was appointed to hear and determine…”.
[11] The Applicant then filed an application for judicial review of this interim order. For the following reasons, I dismiss the Applicant’s motion. The Applicant’s motion fails on the first criteria that I will now address: There is no serious question to be determined.
[12] There is nothing exceptional about this case. It is a typical labour relations arbitration. The Applicant disciplined the grievor and then withdrew the discipline without any conditions attached. The Arbitrator accepted the grievor’s position that there were remaining issues to be dealt with and that the Applicant’s letter did not address all of the her remedial issues.
[13] The Arbitrator was appointed under the expedited arbitration provisions of the Labour Relations Act, 1995 and under the Collective Agreement. He clearly had exclusive jurisdiction to determine the matter referred to him, including determining if the matter is arbitrable, and to review the discipline for just cause as well as to provide a remedy as requested and appropriate. It is clear that he started to carry out his statutory mandate through the hearing process. Having decided that he has jurisdiction and has not lost it, he has the remaining remedial issues to determine.
[14] The Applicant argues that the Arbitrator has no jurisdiction to proceed. However, on the record before me, I do not see this as serious question to be determined given the grievor’s position that not all of her remedial issues were resolved by the Applicant’s letter. The Arbitrator has identified those issues. Furthermore, the Applicant agrees that the grievor has the right to advance the claim for the remaining relief. The issue is whether any such relief should be awarded. Further, even if the Applicant has raised a true question of jurisdiction, the law is clear that the need to avoid fragmentation prevails over true questions of jurisdiction. I rely on Hamalengwa v. The Law Society of Upper Canada, 2014 ONSC 1759. In this case, the court refused to grant a stay where the tribunal’s jurisdictions was being challenged. At paras. 9-10 the court stated:
[9] It is not necessary for us to make a finding of whether the applicant’s motion raised a true question of jurisdiction. Even if the question can be characterized in that fashion, the need to avoid fragmentation prevails.
[10] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, the Court of Appeal stated that even matters involving a true question of jurisdiction do not entitle a party to automatic access to the courts. Laskin J.A. stated at para. 61 that characterizing a question as one of true jurisdiction does not determine whether early judicial intervention is warranted. He went on to expand on that at paras. 68-70 in the following language:
…unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily, an affected individual must pursue these remedies before seeking relief from the court.
The rationales for this principle are well known. The principle respects administrative decision-making and the legislature's intent that internal review processes should be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationales for the principle in C.B. Powell v. Canada (Border Services Agency), 2010 FCA 61, 2010 FCA 61 (QL) at paras. 31-32, and I can do no better than quote his words.
Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker's findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.
[15] The Arbitrator in this case has decided that he will proceed and determine the outstanding remedial aspects of the grievance.
[16] The Applicant’s application for judicial review of his interim order is premature. There are no exceptional circumstances that justify issuance of a stay order. To allow the motion would result in interference with the arbitration before it is completed. Such an order would create fragmentation of the administrative process and a piecemeal review of the arbitration proceeding.
[17] Piece-meal review of the arbitration process “undermines the deference we pay to the administrative bodies and is both costly and inefficient.” See Rew at para. 17.
[18] As in Rew, this motion for stay fails on the first criteria of the test and as a result, there is no need to consider the remaining criteria.
[19] Although the Applicant has failed to satisfy the first element of the test, I wish to address the Applicant’s concern that appears to have triggered this motion. Based on the submissions of the Applicant’s counsel, it is fair to say that the Applicant is concerned that the interim award would limit its ability to respond to the grievor’s request for the remaining relief.
[20] I appreciate and respect that it is the Arbitrator’s role to hear the remaining issues, assess the evidence and rule on any admissibility issues.
[21] In every case, damages are to be considered within the context of the facts presented. It seems in this case that the context starts with the employer’s decision to discipline the alleged conduct that triggered the employer’s decision to withdraw the discipline as set out in its May 4, 2016 letter, why it made this decision and the impact that this has had on the grievor. The Applicant seems to be under the impression that the interim award precludes an examination of this factual context and that it is limited solely to the grievor’s alleged suffering. I do not see the interim award imposing such limitations.
[22] In summary, for the reasons provided, the Applicant’s motion is dismissed.
COSTS
[23] For oral reasons provided today, the Applicant’s motion is dismissed. The Respondent was successful and is entitled to costs. It seeks partial indemnity costs of $11,335.12 all inclusive. The Applicant says the costs should be fixed at $4,000. This motion took about 1.6 hours. The law on a stay of motion is clear as were the facts. Costs should be fair and reasonable and for this reason I fix the Respondent’s costs at $5,000.00. This is in line with the costs awarded in Rew.
___________________________ C. HORKINS J.
Date of Reasons for Judgment: October 14, 2016
Date of Release: October 18, 2016
CITATION: Windsor-Essex Children’s Aid Society v. Canadian Union of Public Employees, Local 2286.1, 2016 ONSC 6482
DIVISIONAL COURT FILE NO.: 381/16
DATE: 20161014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE WINDSOR-ESSEX CHILDREN’S AID SOCIETY
Applicant
(Moving Party)
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 2286.1
Respondent
(Responding Party)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: October 14, 2016
Date of Release: October 18, 2016