Bell Technical Solutions v. Unifor, Local 1996-O, 2021 ONSC 3680
CITATION: Bell Technical Solutions v. Unifor, Local 1996-O, 2021 ONSC 3680
DIVISIONAL COURT FILE NO.: DC-19-290-0000-JR
DATE: 20210520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Lederer and Favreau J.J.
BETWEEN:
BELL TECHNICAL SOLUTIONS
Applicant
– and –
UNIFOR, LOCAL 1996-O
Respondent
– and –
ARBITRATOR IAN ANDERSON
Respondent
COUNSEL:
Maryse Tremblay, for the Applicant
Douglas J. Wray, for the Respondent Unifor, Local 1996-O
HEARD by videoconference at Toronto: May 18, 2021
REASONS FOR DECISION
Dambrot J.:
Bell Technical Solutions (“BTS”) brings this application for judicial review of a “Preliminary Award with Respect to Jurisdiction” of Arbitrator Ian Anderson dated May 3, 2019.
BACKGROUND
[1] On June 2, 2017, Unifor, Local 1996-O (the “union”) filed a grievance on behalf of Mr. Paul Reidt, an employee of BTS (the “grievor”), in relation to a fall while climbing from a ladder at a BTS training exercise. The union claims that the griever was ordered to participate in the climbing exercise over his objection and despite the fact that he was the subject of an accommodation plan as a non-climber. The union alleges that BTS breached the collective agreement and other statutory obligations in a variety of ways, which need not be enumerated here.
[2] BTS raised the following three preliminary objection to the hearing of the grievance: (1) the grievance was untimely; (2) the union was seeking to improperly expand the grounds of the grievance; and (c) the Arbitrator had no jurisdiction to deal with the grievance as a result of 26(2) of the Workplace Safety and Insurance Act, S.O. 1997, c.16, Sched. A, as amended (“WSIA”), which provides that entitlement to benefits under the insurance plan is in lieu of all legal rights of action. In this case, the grievor had already been compensated by virtue of a decision of the Workplace Insurance Safety Board.
[3] The Arbitrator considered only the third objection in his preliminary award. He concluded that insofar as the grievance was a claim for damages as a result of a BTS manager breaching BTS’s accommodation plan and engaging in a discriminatory practice on the basis of disability, it was not a claim by reason of the accident and was not barred by s. 26(2). He was skeptical about the grievance insofar as it related to health and safety issues arising from the fall but decided not to strike that aspect of the claim “at this time.”
[4] In addition, the Arbitrator refused to strike a second claim in relation to bullying and harassment on the basis of disability “at this time” but did indicate that he had no jurisdiction to hear two other claims, subject to further argument by the union.
[5] Following the Preliminary Award with Respect to Jurisdiction, and before the Arbitrator determined either the remaining two preliminary objections or the merits of the grievance, BTS brought this application for judicial review.
[6] In its factum, the union argues that the Court ought to refuse to entertain this application because it is premature. It notes that in Ontario, the Courts will generally not entertain applications for judicial review of administrative tribunals and in particular, labour arbitrators, prior to the release of a final award, unless there are exceptional circumstances.
[7] We required the parties to address this issue before addressing the merits of the application. At the conclusion of the submissions on the issue of prematurity, the panel dismissed the application for judicial review as premature with reasons to follow. These are the reasons.
ANALYSIS
[8] In the administrative law context, the courts, and this court in particular, have consistently applied the doctrine of prematurity, both in appeals and applications for judicial review, and refused to review preliminary decisions of administrative tribunals in order to prevent fragmentation of the administrative process and delay absent exceptional circumstances.
[9] The applicant argues that this application is exceptional because it deals with what it calls “a true issue of jurisdiction involving the jurisdictional line between two independent tribunals that is not dependent upon the evidence.” While judicial support for this approach exists, it has been overtaken by more recent jurisprudence. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 67, the Court of Appeal adopted the view of Stratas J.A. in C.B. Powell Ltd. V. Canada (Border Services Agency), 2010 FCA 61, that the use of the label “jurisdiction” to justify judicial interference with ongoing administrative decision-making processes is no longer appropriate. The Court further stated that even a true question of jurisdiction is not, of itself, an exceptional circumstance justifying judicial review before judicial proceedings are completed.
[10] Counsel for the applicant argued that the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 overtakes Volochay by implication. At para. 63 of Vavilov, the Court stated that the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies. This, she says, creates an exception to the usual practice of dismissing premature applications for judicial review. Even assuming that correctness is the standard of review on this issue in this case, a question we do not reach, I do not agree. First, this statement in Vavilov was nothing new. The same was said in Dunsmuir v. New Brunswick, 2008 SCC 9, and several earlier decisions of the Supreme Court of Canada. And second, the argument conflates the need for a consistent understanding of the boundary between administrative decision makers provided by review on the standard of correctness, and the asserted need to fragment administrative proceedings in order to have an early determination of that question. There is no such need.
[11] Further, there is no reason to apply the doctrine of prematurity differently on review of administrative decisions on a correctness standard, typically in statutory appeals from administrative decisions, than on review on a reasonableness standard. The jurisprudence of this court is clear on the issue. For a recent example, see Coughlin v. Ontario Disability Program (Director), 2021 ONSC 1236 at para. 8.
[12] We see no other exceptional circumstance in this case that would justify proceeding with a judicial review application in this matter prior to the completion of the arbitration. On the contrary, the fact that the preliminary award dealt only with one of the three preliminary issues raised by the applicant, and even then did not finally decide all aspects of that issue, highlights the risk of fragmented proceedings if we were to decide the issue raised on this application now, and strongly militates against our doing so.
DISPOSITION
[13] The application is dismissed as premature.
COSTS
[14] The parties agreed that costs should be awarded to the successful party in the amount of $5,000. We make that order.
Dambrot J.
I agree _______________________________
Lederer J.
I agree _______________________________
Favreau J.
Released: May 20, 2021
CITATION: Bell Technical Solutions v. Unifor, Local 1996-O, 2021 ONSC 3680
DIVISIONAL COURT FILE NO.: DC-19-290-0000-JR
DATE: 20210520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Lederer and Favreau J.J.
BETWEEN:
BELL TECHNICAL SOLUTIONS
Applicant
– and –
UNIFOR, LOCAL 1996-O
Respondent
– and –
ARBITRATOR IAN ANDERSON
Respondent
REASONS FOR DECISION
Dambrot J.
Released: May 20, 2021