CITATION: Canadian Union of Public Employees, Local 5001 v. University Health Network, 2020 ONSC 4256
DIVISIONAL COURT FILE NO.: 765/18 and 788/18
DATE: 20200713
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Pattillo and Favreau JJ.
BETWEEN:
Canadian Union of Public Employees, Local 5001
Applicant
– and –
University Health Network
Respondent
Amanda Montague-Reinholdt and Saranjit Singh Cheema, for the applicant
Stephen J. Shamie, Julia M. Nanos and Amanda Cohen for, the respondent
HEARD: June 19, 2020
Favreau J.:
[1] The applicant, Canadian Union of Public Employees, Local 5001 (CUPE), seeks to judicially review two arbitration decisions. In response to the applications, the respondent, University Health Network (UHN), raised a preliminary argument that the applications for judicial review are premature.
[2] At the hearing, after hearing arguments on the issue of prematurity, we dismissed the applications as premature for reasons to follow. These are the reasons.
Background
[3] CUPE brought a grievance against UHN arising from the termination of one of its employees.
[4] The employee, Sonya Grizzle, worked as an administrative support clerk at UHN. UHN terminated her employment on November 9, 2017. In the letter, UHN stated that Ms. Grizzle was being terminated due to her absence from work on November 6, 7 and 8, 2017. The letter also raised issues about UHN’s suspicions that Ms. Grizzle had accepted work at another hospital. The November 9, 2017 termination letter read as follows:
You did not report to work on October 30, October 31, November 1 and November 2. On November 2, 2017 you were couriered and emailed a letter which detailed Article 9.03(d) of the CUPE clerical collective agreement:
“An employee shall lose all seniority and service and shall be deemed to have terminated if he/she is absent from scheduled work for a period of three (3) or more consecutive working days without notifying the Hospital of such absence and providing to the Hospital a satisfactory reason”
In the letter issued to you on November 2, 2017, you were advised that your job was in jeopardy and you were directed to report to work on November 3, 2017. You were also advised that failure to report to work as directed by the Hospital could result in your termination from UHN.
During our fact-finding meeting on November 3, 2017, you refused to answer any questions regarding your previous absences without the union representative of your choice despite the fact that a union representative was present. Moreover, your actions and behaviour exhibited on November 3, 2017 were disruptive, aggressive and disrespectful. You would have been asked about the fact that the Hospital had credible information that you were requesting emergency/personal leave so that you could work at Sunnybrook Health and maintain your position at UHN.
On November 5, 2017, you sent an email whereby you placed yourself on an emergency/personal leave of absence effective immediately. On November 6, 2017, the Hospital advised you via couriered letter and email that the leave was denied as the reasons provided in your email did not qualify as emergency leave of absence and did not justify a personal leave of absence. You were directed to report to work on November 7, 2017. You were also advised that the Hospital intended to meet with you and discuss your previous absences, your actions from November 3, 2017 and your current absence from work. You failed to report to work as directed by the Hospital.
Consequently, you have been absent from work on November 6, 2017, November 7, 2017 and November 8, 2017 despite being directed to report to work.
As a result, your employment with the Hospital is deemed terminated effective immediately.
First Arbitration Decision
[5] To justify its termination of Ms. Grizzle, UHN relied on Article 9.03(d) of the collective agreement (absent from scheduled work for three or more consecutive days without notice or satisfactory reason) or in the alternative, based on after acquired evidence, just cause due to alternate full-time employment.
[6] The parties agreed to participate in an arbitration and Bernard Fishbein was appointed as the arbitrator (the Arbitrator).
[7] In advance of the arbitration, UHN proposed an agreed statement of facts, but CUPE did not agree to the statement. The agreed statement of facts proposed by UHN was nevertheless included in the materials provided to the Arbitrator. The agreed statement of facts had various documents attached that UHN and CUPE agreed could be considered by the Arbitrator.
[8] The hearing took place on September 18, 2018 and November 8, 2018. The Arbitrator released his initial decision on November 20, 2018.
[9] In his decision, the Arbitrator mistakenly relied on the agreed statement of facts proposed by UHN, quoting it in its entirety at the beginning of the decision.
[10] The Arbitrator went on to describe the issues between the parties and the agreement regarding the arbitration process as follows:
The Union argued that, as applied by the Hospital in these set of circumstances, Article 9.03 could not justify the termination of Ms. Grizzle. Alternatively, to its reliance on Article 9.03, the Hospital argued that there was after acquired (post-discharge) evidence that would allow it to justify the discharge of Ms. Grizzle on a just cause basis in the circumstances here – essentially that Ms. Grizzle was attempting to unsuccessfully invoke the leave provisions of the Collective Agreement to excuse her absences from work and to disguise the fact that she had taken full-time employment at another hospital, Sunnybrook Health Sciences Centre (“Sunnybrook”).
The parties agreed that I should first deal with argument about the application of the automatic or deemed dismissal clause to this set of facts. In the event that the employer was successful, the Grievor would then be automatically discharged and the grievance would end. In the event that the Union was successful, the automatic termination would not stand and I should then deal with the alternative argument of the Hospital. However, I should only deal with whether the Hospital could be permitted to make this alternative argument in these circumstances. In the event that I ruled that the Hospital was able to make this argument, the grievance would then be remitted back to the parties to see if it could be resolved, or scheduled for further hearings later.
[11] In his November 20, 2018 decision, the Arbitrator found that UHN could not rely on Article 9.03(d) of the collective agreement because it failed to comply with the “strict requirements” of that provision. Specifically, the Arbitrator found that, on November 6, 2018, UHN gave notice to Ms. Grizzle that she was to report to work on November 7th, but then improperly counted November 6th as one of the three days on which she had failed to report for work. The Arbitrator held that “I do not think that it is unduly onerous or unreasonable to expect the Hospital, having chosen to invoke an automatic termination clause in order to avoid, in this case, a number of outstanding grievances and a likely seriously contested just cause for discharge case, to be held to a strict and technical compliance with the Article”.
[12] The Arbitrator went on to find that UHN could rely on the alternative ground of just cause for dismissal despite not raising it explicitly as a reason for dismissing Ms. Grizzle in its termination letter of November 9, 2017. In making this determination, the Arbitrator accepted that, while UHN had suspicions that Ms. Grizzle had accepted alternative employment at the time she refused to show up for work, UHN had not been able to ascertain that this was the case, in part due to Ms. Grizzle’s and CUPE’s behaviour. In addition, the Arbitrator found that, while UHN did not explicitly invoke this alternative ground for dismissing Ms. Grizzle in its termination letter, it did give notice of its suspicions and, therefore, CUPE and Ms. Grizzle could not say that they were taken by surprise by the fact that UHN now argues that it had just cause to terminate Ms. Grizzle’s employment.
[13] The Arbitrator concluded his decision by describing the next steps in the arbitration process as follows:
Accordingly, as agreed between the parties, the matter is remitted back to the parties to deal with this ruling. I will leave it to the parties to contact me if they wish to proceed before me with the merits of the just cause case.
Second Arbitration Decision
[14] On November 28, 2018, after receiving the decision, counsel for CUPE wrote to the Arbitrator to advise that the union intended to bring an application for judicial review seeking an order quashing the decision and remitting it to a different arbitrator.
[15] Following receipt of the letter from counsel for CUPE, the Arbitrator wrote to the parties advising that, while he was unaware of the grounds for the application for judicial review, he was aware that he erroneously referred to the statement of facts in his arbitration award and that he would be issuing a revised decision.
[16] CUPE’s counsel then served its notice of application for judicial review with a letter addressed to the Arbitrator taking the position that he was functus officio and therefore had no jurisdiction to issue another award.
[17] The Arbitrator nevertheless released a Supplementary Award with an Amended Award on December 7, 2018.
[18] In the Supplementary Award, the Arbitrator acknowledged the error he made in referring to UHN’s proposed agreed statement of facts. He stated that he had reproduced the content of the statement in his initial award because he found it to be a helpful summary of all the information contained in the documents filed on consent by the parties. However, in his view, the agreed statement of facts was not necessary to his Award because all the relevant information could be gleaned directly from the documents:
Following the release of the Original Award, it came to my attention (and I understand the attention of the parties) that I had wrongly simply referred to an Agreed Statement of Facts agreed to by the Hospital and the Union. This was incorrect, an error I did not catch before the release of the Original Award and for which I apologize. The Union explicitly did not agree to the Statement of Facts but rather, agreed only to the admission of all the documents attached to the Statement of Facts (at least for the purpose of this portion of the hearing) which included, inter alia, various statements of the Hospital’s witnesses about what had transpired at various events leading to the discharge of the Grievor. Because there were many such documents, the Original Award reproduced the Agreed Statement of Facts (at least for narrative purposes), as I regrettably found it more convenient to reproduce that Statement of Facts than reproduce the many documents. The Union made clear it was agreeing to those documents and their contents (at least for this portion of the hearing) so it could rely on them to make its argument opposing the Hospital’s alternative (and second) submission that the Hospital should be able to argue just cause on the basis of after acquired evidence. Since the documents accepted by the Union so extensively covered so many, if virtually not all, of the events alluded to in the Agreed Statement of Facts, I negligently and incorrectly failed to state the distinction in the Original Award.
Again, I apologize for this error. However, I have reviewed the Original Award, and the documents that the Union did not question but accepted, and for the purposes of the Original Award, I do not think the distinction the Union makes, although technically correct, matters here. The parties certainly agreed that I proceed and decide what is outlined in the Original Award, in the fashion they agreed upon that is also outlined at para. 4 of the Original Award. Upon review of the Original Award, it is not only clear to me but I can confirm that I do not believe that I have relied on anything that was not contained in the documents which the Union did accept. Essentially, the parties only argued what may be loosely described as a preliminary or legal questions. Should the matter come back before me, the parties are free to adduce any viva voce evidence they wish, which I believe was made clear in the Original Award. Accordingly, although the Original Award should certainly have more accurately reflected what the parties did agree to, it does not affect, at least in my view, in any material or significant way, the outcome of the Original Award.
[19] The Amended Award is similar to the initial award, but it includes an explanation about there being a proposed agreed statement of facts but only agreement with respect to the documents. It also includes references to the documents filed by parties in support of the facts set out in the award.
Applications for judicial review
[20] CUPE commenced a second application for judicial review after the Arbitrator released the Supplementary Award and Amended Award.
[21] The applications were scheduled to proceed before us together.
[22] In the applications for judicial review, CUPE takes the position that the Arbitrator’s reliance on the agreed statement of fact and subsequent correction of his award were procedurally unfair and demonstrate a reasonable apprehension of bias. CUPE also takes the position that the Arbitrator’s finding that UHN could pursue a just cause argument was unreasonable.
Analysis
[23] UHN argued that the applications for judicial review are premature because the arbitration has not been completed. If the parties cannot resolve the issue of whether UHN had just cause to dismiss Ms. Grizzle, then this issue still remains to be decided by the Arbitrator.
[24] CUPE agrees that the arbitration process is not complete but argues that this is an exceptional circumstance in which the Court should decide the issue even if the proceedings are not complete.
[25] In my view, this is not an exceptional circumstance that justifies judicial intervention before the arbitration process is completed.
[26] This Court does not usually interfere in administrative proceedings, including arbitrations, until the proceedings are complete. As held in Toronto Transit Commission v. Amalgamated Transit Union Loc. 113, 2020 ONSC 2642, at para. 5, ordinarily the Divisional Court “will not entertain judicial review of an interlocutory decision on the basis of ‘prematurity’: the court requires the parties to complete the process below, to a final decision on the merits, and then judicial review may be sought on issues pertinent to the final result”. In Toronto Transit Union, at para. 9, the Court also noted that “[l]abour arbitration cases should almost always be decided finally before review is taken in this court…”
[27] In Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at para. 32, the Federal Court of Appeal explained that the rationale for avoiding judicial intervention before administrative proceedings are completed is to avoid the fragmentation and piecemeal approach to administrative proceedings, to eliminate unnecessary costs and delays, and to avoid the waste associated with applications for judicial review in cases where the issue may become moot at the end of the administrative process.
[28] The courts have recognized that there are exceptional circumstances in which an application for judicial review of an interlocutory decision may be appropriate. However, these are very rare. In Ackerman v. Ontario Provincial Police, 2010 ONSC 910, at para. 19, this Court stated that exceptional circumstances may exist where “the tribunal clearly lacked jurisdiction to proceed”, “where the decision, although interlocutory in most respects, determines a particular issue” or “where proceeding with the hearing would result in an unfair hearing or a breach of natural justice”. The Court went on to say that ‘[e]ven in those extreme situations, the remedy is discretionary and will be exercised sparingly”. In C.B. Powell Limited, at para. 33, the Federal Court held that, even concerns about procedural fairness or allegations of bias on their own are not sufficient to give rise to exceptional circumstances, especially where the ongoing administrative process allows for the issues to be raised and an effective remedy to be granted.
[29] In this case, CUPE argues that there are exceptional circumstances because the decision making process was fundamentally flawed and cannot be cured by allowing the arbitration to proceed before the same Arbitrator. Specifically, the initial decision lacked procedural fairness because the Arbitrator relied on the agreed statement of facts without giving CUPE an opportunity to address the evidence the Arbitrator purported to rely on. Then, the Arbitrator demonstrated real or apprehended bias by trying to fix his decision and justifying his findings after the fact.
[30] In my view, these circumstances are not sufficient to give rise to exceptional circumstances.
[31] First, I note that the parties agreed that the arbitration would proceed in two phases. CUPE is now attempting to resile from that agreement by asking the Court to intervene partway through the proceedings and referring the matter to another arbitrator.
[32] Second, CUPE does not take the position that it was improper for the Arbitrator to see the agreed statement of facts, but rather that he should not have relied on its contents in his award. This distinction is important because it diminishes any argument that the decision making process was irreparably tainted.
[33] Third, the first issue raised on the arbitration, namely the application of Article 9.03(d) of the collective agreement, was decided in CUPE’s favour. The Arbitrator has not decided the second issue of whether UHN had just cause to terminate Ms. Grizzle’s employment. He only decided that the issue meets the threshold for moving on to a full hearing if the parties are not able to resolve this issue. He has made clear that CUPE will be entitled to lead viva voce evidence at that hearing. In the event CUPE is successful at the hearing, there will be no need for an application for judicial review that considers the issues of procedural fairness and bias raised on this application. In the event CUPE is unsuccessful at the just cause hearing, CUPE can bring an application for judicial review that raises the issues raised on these applications and the issues that may arise on the hearing on the merits. This is far more efficient than stopping the arbitration in its tracks now and sending it to a new arbitrator to decide afresh.
[34] CUPE argues that this is unlike other cases where courts have refused to decide applications for judicial review that raise issues of procedural fairness or bias. In this case, unlike in other cases, there is no process within the arbitration that can cure the procedural defects. This is not entirely accurate. If the matter goes to a second phase, CUPE can bring a recusal motion to the Arbitrator, and it is in fact generally required that issues of bias first be raised before the original decision maker.
[35] At the hearing before us, in her reply submissions, counsel for CUPE also argued that we had not given her a chance to make her full argument on the issues of bias and procedural fairness and we were therefore not in a position to fully understand the basis for CUPE’s argument that there are exceptional circumstances in this case. I note that CUPE’s factum addresses its arguments on these issues and therefore the Court does have the benefit of CUPE’s position. In addition, this is not an appropriate issue to raise in reply. If CUPE’s argument is that there are exceptional circumstances that warrant hearing an application to judicially review an interlocutory decision, then that argument should have been fully developed at the outset of the argument and not in reply.
Conclusion
[36] For the reasons above, the application for judicial review is dismissed. The respondent is entitled to $7,500 in costs as agreed between the parties.
Favreau J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Pattillo J.
Released: July 13, 2020
CITATION: Canadian Union of Public Employees, Local 5001 v. University Health Network, 2020 ONSC 4256
DIVISIONAL COURT FILE NO.: 765/18 and 788/18
DATE: 20200713
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Pattillo and Favreau JJ.
BETWEEN:
Canadian Union of Public Employees, Local 5001
Applicant
– and –
University Health Network
Respondent
REASONS FOR JUDGMENT
Favreau J.
Released: July 13, 2020