CITATION: Tropak v. The University of Toronto, 2019 ONSC 178
DIVISIONAL COURT FILE NO.: 110/17
DATE: 20190108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MORAWETZ, R.S.J., MULLINS and MATHESON JJ.
BETWEEN:
IHOR TROPAK
Applicant
– and –
THE UNIVERSITY OF TORONTO and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3261
Respondents
O. Parsons, for the Applicant
F. Cesario, for the Respondent University of Toronto
D. Paul, for the Respondent Canadian Union of Public Employees, Local 3261
HEARD in Toronto: October 31, 2018
REASONS FOR DECISION
BY THE COURT:
[1] The Applicant, Ihor Tropak, has brought this Application for Judicial Review challenging the decision made by arbitrator Mary Ellen Cummings (the “Arbitrator”) issued on November 13, 2014, in respect of a labour arbitration between the Canadian Union of Public Employees, Local 3261 (the “Respondent CUPE”) and the University of Toronto (the “Respondent U of T”) arising from the discharge of the Applicant. The Application was not commenced until March 7, 2017.
[2] The Arbitrator upheld the decision of the Respondent U of T to terminate the Applicant’s employment for just cause because the Applicant had fabricated an allegation of workplace violence against another employee.
[3] The Applicant requests an order setting aside the Arbitrator’s decision and reinstating the Applicant’s employment. The Applicant submits that the Arbitrator erred in law, misapprehended the evidence, exceeded her jurisdiction, and interpreted and applied s. 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”) in a manner that infringed his freedom of expression under s. 2(b) and liberty under s. 7 of the Charter rights.
[4] For the reasons set out below, this Application is dismissed.
Background
[5] In June 2013, the Respondent CUPE filed a grievance on behalf of the Applicant challenging the Respondent U of T’s decision to terminate his employment. The basis for the discharge stems from a complaint the Applicant made to the Respondent U of T that a co-worker threatened him in a stairwell with a knife (the “Knife Incident”). The University investigated the matter and determined that the Applicant had fabricated the allegation. The University determined that the Applicant’s actions constituted gross misconduct, represented a fundamental breach of the employment obligations, and established just cause for termination.
[6] The hearing of the discharge grievance took place for a total of eleven days in the period from January to June 2014.
[7] On November 13, 2014, the Arbitrator issued her decision dismissing the grievance. The Arbitrator assessed the evidence, as set out in detail in her reasons for decision, and concluded that the Applicant had “made up the story of the threat in the hallway to hurt [his co-worker] and to protect himself.” The Arbitrator’s consideration of the evidence and related credibility issues was extensive, as shown in her reasons for decision.
[8] The Arbitrator also considered whether she would substitute a lesser penalty than the discharge. In balancing the mitigating and aggravating factors, the Arbitrator held there was “no good reason to substitute another penalty” and upheld the Respondent U of T’s decision to terminate the Applicant’s employment.
[9] The grievance was dismissed. The Respondent CUPE did not challenge that decision by bringing an application for judicial review. Over two years later, this Application was commenced by Mr. Tropak personally.
Issues
[10] This Application for Judicial Review gives rise to the following issues:
whether the Application should be dismissed for lack of standing;
whether the Application should be dismissed for delay;
whether the Arbitrator’s decision and interpretation of s. 50 of the OHSA infringed the Applicant’s s. 2(b) and s. 7 Charter rights; and,
whether the Arbitrator’s decision was reasonable.
[11] We conclude that the first two issues dispose of this Application. There is therefore no need to deal with the remaining issues.
Standard of Review
[12] The parties agree that the standard of review is reasonableness: CAW-Canada, Local 1451 v. Kitchener Frame Ltd., 2010 ONSC 3890, 270 O.A.C. 336 (Div. Ct.), at para. 31.
Lack of Standing
[13] “Generally, an employee cannot seek judicial review of an arbitration award when the union decides not to do so, as the decision is one for the union to make, balancing the various competing interests”: Yee v. Trent University, 2010 ONSC 3307 (Div. Ct.), at para. 7.
[14] As set out by the Supreme Court of Canada in Société d'énergie de la Baie James c. Noël, 2001 SCC 39, [2001] 2 S.C.R. 207, “a union, once certified in a workplace, has exclusive rights to represent bargaining unit members in the determination of their terms and conditions of employment… the union controls the grievance and the arbitration process unless there is express language in the collective agreement giving an individual employee the right to file grievance and take it to arbitration: Yee, at para. 7; Noël, at para. 45.
[15] There are three “exceptional situations” in which the above general rule may be set aside to grant standing to an individual employee:
(1) where the collective agreement confers upon individual employees the right to pursue a matter to arbitration;
(2) where the union takes a position adverse in interest to the employee; and
(3) where the union’s representation of the employee has been so deficient that the employee should be given a right to pursue judicial review: Yee, at para. 8.
[16] In this case, the Applicant submits the Respondent CUPE’s representation of him was so deficient that he was “unfairly or inadequately represented by the union”. The Applicant argues that the Respondent CUPE misrepresented the evidence before the Arbitrator by providing the incorrect and/or changing the date as to when the Knife Incident occurred. The Applicant submits that this resulted in the Arbitrator to err in her “properly surveying the totality of the evidence” and made the Applicant’s evidence appear non-credible. Additionally, the Applicant submits the Respondent CUPE failed to assist in bringing the Application.
[17] The Applicant has not made out the “exceptional situation” exemption. It is apparent from the Arbitrator’s reasons for decision that the grievance was unsuccessful because the Arbitrator did not accept the evidence of the Applicant himself and not because of the Respondent CUPE’s representation. We are satisfied that the record does not support the conclusion that the Respondent CUPE’s representation of the Applicant was deficient.
[18] The Applicant also seeks to invoke the criteria for the grant of public interest standing in support of his position. In oral submissions, the Applicant’s counsel submitted that the Arbitrator’s decision would have a chilling effect on those who make complaints in their respective workplaces if a single incident of fabrication can lead to dismissal of just cause. The Applicant also seeks to challenge the Arbitrator’s decision as arising in a particular work setting.
[19] Courts have the discretion to grant public interest standing to a party seeking to challenge administrative action. The test for public interest standing was set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 37:
In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.
[20] With respect to the first criterion, the Applicant has not raised a serious justiciable issue in this case. The Arbitrator’s decision is heavily based on the extensive evidentiary record before her and in turn on the specific circumstances surrounding the Applicant’s dismissal rather than some more general issue. Further, this is not a reasonable and effective way to bring the issue before the courts. In the context of labour relations, allowing this judicial review to proceed runs contrary to the general view that arbitration represents the normal and exclusive method of resolving conflicts that arise in the course of administering collective agreements, including disciplinary action. As the Supreme Court of Canada stated in Noël, at para. 62:
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.
[21] Accordingly, we would not exercise our discretion to grant this Applicant standing based upon public interest standing. We find that the Applicant lacks standing to bring this Application, which is sufficient for us to dispose of this Application.
Delay
[22] If we had not dismissed this Application on the preliminary issue of standing, we would have dismissed it on the issue of delay. The Arbitrator’s award was issued on November 13, 2014. Two years and four months later, on March 7, 2017, the Notice of Application was issued.
[23] Although there is no statutory limitation period for judicial review, this Court has provided a presumptive timeline for commencing judicial review applications – namely, that an application be brought within six months. A longer delay could be serious enough to warrant dismissal.
[24] The factors the Court will consider in determining whether an application for judicial review will be dismissed for delay are the following:
a. the length of the delay;
b. whether there is a reasonable explanation for the delay; and
c. whether the party responding to the application has suffered prejudice as a result of the delay: Gigliotti v. College des Grandes Lacs (Conseil d’administration) (2005), 2005 23326 (ON SCDC), 76 O.R. (3d) 561 (Div. Ct.).
[25] The only explanation that the Applicant has offered for the delay is that he could not convince the Respondent CUPE to bring this Application. However, the Respondent CUPE was not obligated to bring an application for judicial review and the Applicant has not established that the Respondent CUPE is responsible for all or any significant part of the delay in its decision-making process. The Applicant has failed to provide any reasonable explanation for any delay, let alone a delay of more than two years. We would therefore also dismiss this Application on account of the Applicant’s delay.
Order
[26] The Application is dismissed with costs to the Respondent CUPE and the Respondent U of T, each fixed at $2,500 inclusive of disbursements and HST.
Morawetz, R.S.J.
Mullins, J.
Matheson J.
Released: January 8, 2019
CITATION: Tropak v. The University of Toronto, 2019 ONSC 178
DIVISIONAL COURT FILE NO.: 110/17
DATE: 20190108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MORAWETZ, R.S.J., MULLINS and MATHESON JJ.
BETWEEN:
IHOR TROPAK
Applicant
– and –
THE UNIVERSITY OF TORONTO and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3261
Respondents
REASONS FOR dECISION
Released: January 8, 2019