CITATION: Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 847
DIVISIONAL COURT FILE NO.: 363/19 DATE: 20200206
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Lederer and Sutherland JJ.
BETWEEN:
AIR CANADA
Christopher D. Pigott and Megan Beal, for the Applicant
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, AIR CANADA COMPONENT
Adrienne Lei and Matthew Bélanger, for the Respondent Canadian Union of Public Employees, Air Canada Component
– and –
ARBITRATOR STEPHEN RAYMOND
Respondents
HEARD at Toronto: February 6, 2020
ORAL REASONS FOR JUDGMENT
D.L. CORBETT J. (Orally)
[1] This is a judicial review from Arbitrator Raymond’s grievance arbitration award dated March 18, 2019, substituting a thirty-day suspension for the termination imposed by the employer. As Mr. Pigott argued, this sounds a lot like a final disposition, susceptible to judicial review in this court. However, the Arbitrator goes on to state as follows:
I remit the matter back to the parties and remain seized. I am seized in particular with the issue, which has not yet been argued, as to whether reinstatement is an appropriate remedy.
[2] It is clear from this passage that the Arbitrator has not yet finished his work. The final disposition of the issue of remedy has not yet been decided. It should be before the parties have recourse to this court: see Air Canada v. Haydon, 2018 FCA 88 and Canadian Nuclear Laboratories v. International Union of Operating Engineers, Local 772, 2015 ONSC 3436 Div. Ct. and also the frequently cited passage from Justice Stratas in CB Powell Limited v. Canada, 2010 FCA 61, paras. 31 - 33.
[3] There are multiple reasons to find this judicial review premature, not the least of which is that the Arbitrator’s award on remedy and his award on reinstatement both concern the seriousness of the employee misconduct, and there is a material risk of (a) considerable overlap in work, wasting judicial resources; and (b) potential inconsistent decisions on review.
[4] This is not a case where the Arbitrator has finally decided remedy and remained seized only of implementation issues: see In the Matter of Arbitration Under Crown Employees Collective Act before the Grievance Settlement Board, 230 LAC 4th 40 at paras. 90 - 94.
[5] In my view, the appropriate remedy is to stay this judicial review pending decision on remedy. If the stay has not been lifted within twelve months, in the absence of some further court order, the judicial review will be dismissed without costs.
[6] I have endorsed the application record of the Applicant, Air Canada, Volume 1, as follows: “The application for judicial review is stayed as premature. If the stay is not lifted within twelve months, in the absence of further court order, this application shall be dismissed without costs.”
D.L. Corbett J.
I agree
Lederer J.
I agree
Sutherland J.
Date of Oral Reasons for Judgment: February 6, 2020
Date of Release: February 7, 2020
CITATION: Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 847
DIVISIONAL COURT FILE NO.: 363/19 DATE: 20200206
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Lederer and Sutherland JJ.
BETWEEN:
AIR CANADA Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, AIR CANADA COMPONENT
– and –
ARBITRATOR STEPHEN RAYMOND Respondents
ORAL REASONS FOR JUDGMENT
D.L. CORBETT J.
Date of Oral Reasons for Judgment: February 6, 2020
Date of Release: February 7, 2020