CITATION: Ali v. Ontario Public Service Employees Union, 2022 ONSC 785

DIVISIONAL COURT FILE NO.: 275/20

DATE: 20220203

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MIR HASHMAT ALI, Applicant

AND:

ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Respondent

BEFORE: Sachs, E. Stewart and Mew JJ.

COUNSEL: Hugh Sher, for the Applicant

David Wright and Esther Song, for the Respondent

Andrea Bowker and Aaron Hart, for the Ontario Labour Relations Board

HEARD at Toronto by videoconference: 24 January 2022

ENDORSEMENT

[1] This application for judicial review arises from ongoing proceedings before the Ontario Labour Relations Board (“OLRB”) involving three grievances filed by the applicant between October and December 2017.

[2] The applicant challenges the decision of an arbitrator dated 10 July 2020 (2020 49164) and his reconsideration decision dated 7 August 2020 (2020 57595), which dismissed the applicant’s fair representation complaint on the basis of prematurity.

[3] The arbitrator ordered completion of the grievance process and dismissed the applicant’s request for independent counsel without prejudice to the applicant filing a complaint once arbitration is complete.

[4] The applicant asserts that the arbitrator’s decisions were unreasonable because they were not supported by the evidence, and that by making a “blanket” ruling without consideration of the applicant’s claims of unfair representation and his request for independent legal representation, he was denied procedural fairness.

[5] For the reasons that follow we would dismiss the application.

Background

[6] The applicant had been an employee of the Ontario Ministry of Health and Long-Term Care (the “Employer”) since January 2007, in the same position under different management teams.

[7] In 2015, the applicant alleges he began to experience harassment and discriminatory treatment from a new acting manager. This continued, and the applicant filed a grievance in October 2017. On 23 October 2017 the applicant resigned from his position, effective 31 December 2017. He says that he was effectively forced to resign. He filed two more grievances in December 2017.

[8] The respondent union (“OPSEU”) says that it referred the grievances for arbitration at the Grievance Settlement Board (“GSB”) in March 2018. OPSEU retained counsel to represent the applicant and the parties held a mediation session in June 2018. The disputes did not settle at mediation and arbitration commenced thereafter.

[9] In December 2019, the applicant filed an application under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”), alleging that OPSEU and the Employer were taking too long to complete the arbitration (thus violating the duty of fair representation) and requested an immediate resumption and timely completion of the hearing process.

[10] OPSEU and the Employer requested the matter be dismissed on a preliminary basis and, after receiving written submissions from the applicant on this issue in a decision dated 7 April 2020, the OLRB granted the dismissal on the basis of prematurity (2020 28015).

[11] In her reasons, the OLRB Vice-Chair McGilvery noted that the applicant did not disagree with the other parties on material points, including that the grievance process was ongoing and there had been thirteen hearing days up to that point. The OLRB also noted that it was not its role to monitor how a union conducts an arbitration while it is before the arbitrator. The applicant remained entitled to pursue a s. 74 complaint after arbitration was completed.

[12] The applicant did not file a request for reconsideration or for judicial review of the 7 April 2020 decision.

[13] In June 2020, while the arbitration continued, the applicant filed another duty of fair representation application under s. 74 of the LRA. The substance of this application was largely the same as that addressed by the 7 April decision. However, in addition, the applicant requested an order allowing him to hire independent counsel, funded by OPSEU, for his grievance arbitration.

[14] In his 10 July 2020 decision, the OLRB Vice-Chair Ross adopted the reasons of the April decision and dismissed the application as premature, noting the precondition to filing a new application – that the GSB arbitration be completed – had not been met, and there were no new facts that could lead him to a different conclusion. The OLRB did not make any other findings of fact or credibility.

[15] The applicant filed a request for reconsideration of the July 2020 decision in August 2020, alleging that he had not had the opportunity to make additional submissions before his application was dismissed.

[16] Vice-Chair Ross dismissed the request for reconsideration. He noted that in making his decision to dismiss the application, he had not relied on OPSEU or the Employer’s responses. Rather, his decision had been based on his conclusion that the application was a clear attempt to re-litigate the 7 April decision. He reiterated that it is not the OLRB’s role to monitor how a union conducts an arbitration while it is ongoing and there was no conflict of interest simply because the applicant had initiated the s. 74 complaints.

Issues

[17] In both his notice of application for judicial review and his factum, the applicant asserted that the arbitrator’s decision was unreasonable because:

a. findings of fact were made without regard to the evidence;

b. there was an unequal and uneven assessment of credibility;

c. the evidence did not support the conclusion that OPSEU and its appointed counsel had been acting in good faith;

d. the determination that the applicant had brought his application for unfair representation and the appointment of independent counsel prematurely was an error of law; and,

e. the alleged failure of the arbitrator to consider evidence of unfair representation and the imposition of a so-called “blanket ruling” amounted to a lack of procedural fairness.

[18] The respondent’s distillation of the issues was:

a. whether the reasons for the decision and the reconsideration decision were transparent and coherent, and whether the results fell within the range of possible outcomes that are defensible with respect to the facts and the law; and,

b. more specifically, whether the OLRB’s decision that the application was premature due to the concurrent arbitration proceedings at the GSB was properly reasoned and fell within the range of possible, defensible outcomes.

[19] However, both parties and counsel for the OLRB agreed that the standard of review is that of reasonableness, a position which is consistent with the issues as framed by the respondent. Accordingly, our analysis has been undertaken with the reasonableness standard articulated in Canada (Ministry of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, as our guide.

The April Decision

[20] As already noted, the applicant’s previous s. 74 application was dismissed on 7 April 2020. In that application he had asserted that OPSEU and the Employer were taking too long to complete the arbitration of the grievances. He asked the OLRB to “issue an order to OPSEU and the Employer Counsel to immediately resume the hearing process and complete the grievance hearing process in the next three months.” He also requested the Board to “issue an order to Employer Counsel to release all required documents as/when needed.”

[21] The sole basis given for dismissal of the application was prematurity. In the circumstances, the Vice-Chair concluded that it was not necessary for her to consider the other alleged grounds that had been raised.

The July Decision

[22] In the July decision, Vice-Chair Ross, after referencing the April 2020 decision and noting that no request for reconsideration or judicial review of that decision had been made, stated, at para. 10:

There is nothing contained on the face of this second application that could lead the Board to a different conclusion that [sic] the one set out above at paragraphs 4 to 7 of the April 7, 2020 decision, and I adopt those reasons. The Board does not consider allegations about how the union conducted itself during ongoing grievance arbitrations until those proceedings are completed. To repeat, it is not the role of the Board to monitor how a union or its counsel conducts an arbitration while it is before an arbitrator.

The Reconsideration Decision

[23] In his request for reconsideration of the July 2020 decision, the applicant asserted that the decision to dismiss his application had been premature because he was not provided with the ability to make additional submissions prior to the application being dismissed. He also included further submissions in support of his position that the OPSEU had violated section 74 of the LRA. One of those new submissions was that the union representatives were in a conflict of interest because he had brought two duty of fair representation applications against them.

[24] After referring once more to the April 2020 decision, the Vice-Chair continued, at para. 7:

…. the applicant has erroneously assumed that I relied on anything contained in the responses filed in deciding to dismiss this application. I did not. There is nothing in my first decision that even references the responding party’s or intervenor’s response. I considered the application on its face and reviewed the reasons given in the first decision. This application is such a clear attempt to re-litigate an issue that had already been fully considered, decided and dismissed, that to permit this application to continue, the Board would have to indulge an abuse of its processes.

[25] Noting that OPSEU’s duty to fairly represent the applicant arises under s. 74 of the LRA, the Vice-Chair served a reminder that if, at the end of the applicant’s ongoing grievance arbitration process currently before the GSB, he continued to believe that the union had failed to represent him, he would be free to file a fresh application pursuant to the directions contained in the July 2020 decision.

Analysis

[26] As a general rule, the decisions of labour relations tribunals are to be afforded the highest levels of judicial deference on matters within their exclusive jurisdiction: Labourers’ International Union of North America, Local 183 v. GDI Services (Canada) LP, 2020 ONSC 1018 (Div. Ct.), at paras. 27-28.

No Blanket Ruling

[27] The principal argument advanced by the applicant was that the OLRB made a “blanket ruling,” the effect of which is that no complaint of a breach of the duty of fair representation can ever be determined before the completion of the grievance process.

[28] In the April 2020 decision, the Vice-Chair cited the OLRB’s decisions in Berry v. Ontario Liquor Boards Employees’ Union, 2000 4417 (ON LRB) (April 11, 2000) at para. 3, McPherson v. S.E.I.U. Local 528, 2006 1622 (ON LRB) at para. 11, and Simpson v. Canadian Union of Public Employees Local 1764, 2004 15609 (ON LRB) at para. 20. In each of those cases fair representation complaints were dismissed as premature. In Berry, Alternate Chair Cummings wrote, at para. 3:

The Board has consistently held that there is no good labour relations purpose to be served enquiring into a duty of fair representation complaint where the grievance at the heart of the complaint is still under discussion in the workplace parties’ grievance and arbitration procedure.

[29] OPSEU acknowledges that, as a general rule, fair representation complaints are not adjudicated until the completion of the grievance process. The rationale for this practice was explained in Zhang v. CUPE Local 79, 2016 48776 (ON LRB) at paras. 39-40:

39. Where a trade union files grievances on behalf of an employee and is continuing to process them in a timely fashion at the time a section 74 application is made to the Board, the section 74 application is described as “premature,” and is not decided by the Board, but is rather dismissed. This approach makes sense as the arbitration hearing may result in an award that is favourable to the Applicant, she may not wish to pursue a complaint against CUPE.

40. Regardless of the outcome of the arbitration hearing, if she wishes to base her complaint on CUPE’s conduct during that hearing, it only makes sense that the hearing run its course and all of her allegations be particularized prior to CUPE being required to respond to her complaint or the Board being required to decide it.

[30] The rule is not, however, inviolable. Section 96(4) of the LRA invests the OLRB with a discretion to inquire into a complaint of a contravention of the LRA, including the duty of fair representation. Indeed, as the Zhang decision intimates, one circumstance in which a departure from the general rule could be warranted is where a grievance is not being processed in a timely fashion.

Result Defensible

[31] It is clear from the April 2020 decision that the tribunal was alive to the concerns about delay raised by the applicant. Hence the Vice-Chair’s reference to the fact, not disputed by the applicant, that there had already been thirteen hearing dates.

[32] The July 2020 decision adopted the reasoning of the earlier decision. However, the essence of the Vice-Chair’s decisions was the conclusion that the second application was a repeat of the first. As the Vice-Chair succinctly put it in the August 2020 reconsideration decision, at para. 6, the fair representation complaint had “already been litigated, considered and dismissed,” without prejudice, of course, to such a complaint being resubmitted when the proceedings before the GSB have been completed.

[33] A litigant does not get a second crack by grafting on an additional remedy to an otherwise identical complaint that has already been dismissed. Simply put, it is an abuse of process. By so deciding, the OLRB was well within the authority conferred on it by s. 110(16) of the LRA to determine its own practice and procedures.

[34] Furthermore, while the OLRB’s conclusion that the application was premature was in accord with the Board’s past practices and decisions not to interfere with a matter that is currently proceeding through the arbitration process, it was not, as the applicant asserts, a “blanket ruling.” Rather, it is clear that consideration was given to the circumstances, which included the fact that there had already been thirteen hearing dates.

[35] In our view, the OLRB’s determination that the matter was premature and thus would not be considered on its merits was well within the range of possible acceptable outcomes. Moreover, the conclusion that the second application was a repetition of the first is unassailable.

Decision

[36] It is over four years since the applicant left his position with the Employer. It is understandable that he feels it has taken too long for his grievance to be adjudicated. But it may be stating the obvious to observe that the applicant has elected to pursue his complaint about his representation, rather than see through the grievance process first. It is now time for the parties to return to the GSB and complete that process as expeditiously as possible.

[37] The application is dismissed with costs.

[38] In accordance with the parties’ agreement on costs, the applicant shall pay the respondent costs in the all-inclusive amount of $12,500. The OLRB does not seek costs.

Sachs J.

E. Stewart J.

Mew J.

Released: 03 February 2022