CITATION: Canadian Broadcasting Corporation v. Canadian Media Guild, 2023 ONSC 3303

DIVISIONAL COURT FILE NO.: 474/22

DATE: 2023/05/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, D.L. Corbett, J.A. Ramsay JJ.

BETWEEN:

CANADIAN BROADCASTING CORPORATION

Applicant

– and –

CANADIAN MEDIA GUILD AND STEPHEN RAYMOND

Respondents

Bonnea Channe, for the Applicant

Stephen J. Moreau and Sean FitzPatrick, for the Respondent, Canadian Media Guild

HEARD at Toronto by videoconference: April 19, 2023

H. Sachs J.

Overview

[1] This is an application brought by the Canadian Broadcasting Corporation (the “CBC” or the “Employer”) to judicially review certain aspects of an award dated July 26, 2022, issued by Stephen Raymond, who is assigned as the Grievance Procedure Arbitrator under a collective agreement between the CBC and the Canadian Media Guild (the “CMG” or the “Union”).

[2] A member of the Union filed a complaint of harassment against another bargaining unit member. That complaint was investigated by an external investigator. On December 4, 2021, the Union filed a grievance on behalf of the complainant member (the “Grievor”), alleging that the external investigation of the harassment complaint was “botched”, an allegation that the CBC denies.

[3] The collective agreement between the parties (the “Collective Agreement”) mandates that before a grievance is referred to arbitration, it must first go through two steps. Step One requires that it first be dealt with before the Local Grievance Committee. If it is not resolved at that stage, it must be referred to Step Two before a National Grievance Committee. If the grievance is not resolved at Step Two, the grievance may be referred to arbitration.

[4] The Collective Agreement is unique in that it provides for the assignment of a Grievance Procedure Arbitrator (“GPA”) to hear and decide certain procedural disputes arising during the grievance procedure, up to and including the step of assigning an arbitrator who will hear and decide the merits of a grievance. The GPA is a different person from the merits arbitrator. The GPA was assigned for the term of the Collective Agreement, which is from April 1, 2019 to March 31, 2024.

[5] The Collective Agreement provides that the GPA does not have jurisdiction over preliminary matters or arguments that are of a legal nature and would normally be heard by the merits arbitrator. Thus, the jurisdiction of the GPA does not overlap with that of the merits arbitrator.

[6] At Step One of the grievance process in this case, the Union requested that the CBC provide the Local Grievance Committee with a redacted copy of the external investigator’s report. The CBC declined to do so for a number of reasons, including an assertion that to do so would violate the Work Place Harassment and Violence Prevention Regulations, SOR/2020-130 (the “CLC Regulations”), under Part II of the Canada Labour Code, R.S.C. 1985, c.L-2 (the “CLC”). According to the CBC, the CLC Regulations establish certain parameters to protect the privacy and identities of the persons involved, including prescribing a narrow list of recipients who are to receive a copy of an investigation report. This list does not include all the members of the Local Grievance Committee. The CBC also pointed out that it had already provided a redacted version of the report to the Grievor and to a Union staff representative, who also serves as the Union’s national representative during Step Two of the Grievance Process.

[7] The Union maintained its demand for broadened disclosure and requested a hearing before the GPA to deal with this issue and other issues not relevant to this application for judicial review.

[8] After a hearing the GPA ordered the CBC to provide a redacted copy of the investigation report to the Local Grievance Committee prior to its meeting to deal with the matter. The order allowed for further redactions of the report to protect the confidentiality of the participants. It is the GPA’s disclosure order that the CBC seeks to judicially review.

[9] On this application the CBC raises a preliminary issue that the GPA’s decision is not reviewable by this court as the Collective Agreement does not specify that the decisions of the GPA are “final and binding”. If the decision is reviewable, the CBC argues that the GPA had no jurisdiction to make the order he did as making the order involved the determination of a legal matter, which ought to have gone before the merits arbitrator. Finally, the CBC submits that the GPA breached the CBC’s right to procedural fairness.

[10] For the reasons that follow, I find that the decision at issue is reviewable by this Court and that it was reasonable. I also find that there is no merit to the CBC’s assertion that its right to procedural fairness was breached.

Is the GPA’s Decision Reviewable by this Court?

Some Preliminary Observations

[11] There is a peculiar aspect to this application that has not passed unnoticed by the Court. The CBC, who brought this application, is arguing that it should be dismissed while the Union, who would presumably benefit from such a dismissal, is opposing the CBC’s submission that the application should be dismissed. Therefore, I propose to begin by setting out what both parties had to say about why they were taking the positions they did.

[12] The CBC asserts that it is unclear whether the decision of the GPA is reviewable. Therefore, it has raised this issue as a preliminary matter, both because of the obvious relevance to this application and because it will provide the parties with guidance respecting future decisions of the GPA. In its submissions before this Court, the CBC argued forcefully that the decision of the GPA was not reviewable.

[13] The Union acknowledged that it might, at first blush, appear to be in its interests to accede to the CBC’s argument as this would result in the immediate dismissal of the CBC’s application. However, it declined to do so for two reasons. First because, in its view, the CBC’s position on the merits was wrong in law. Second, in the Union’s view, accepting such an argument would have the effect of reinforcing the CBC’s approach of treating Step One of the grievance process as something it can take less seriously. According to the Union, if the Court has no power over the GPA, this would have the effect of limiting the GPA’s role substantially. This in turn might mean that the GPA would be disinclined in the future to order meaningful remedies, effectively eviscerating the first two steps of the grievance process set out in the Collective Agreement. Rather than engaging meaningfully with the Union to resolve disputes amicably at Step One or Step Two, the CBC’s approach would result in too many disputes heading to the merits arbitrator. This undermines the purpose of the Collective Agreement, which placed a GPA process in that agreement to make the grievance process more efficient and effective.

[14] In the end, it is up to the Court to determine the issue of reviewability based on the facts in this case and the law governing this issue.

The CBC’s Position on Reviewability

[15] Pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) the Divisional Court:

may despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[16] With respect to s.2(1)2, the CBC concedes that a labour arbitrator whose jurisdiction is derived from s. 57(1) of the CLC, exercises a statutory power of decision.

[17] s. 57(1) of the CLC states:

Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

[18] The CBC concedes that the arbitrator who determines the merits of a grievance is a statutory tribunal. However, it argues that the GPA is not. It does so on the basis that the decisions of the GPA are not final and binding in the way required by s. 57(1) of the CLC.

[19] The CBC submits that in the Collective Agreement the parties have chosen merits arbitration as the mechanism through which to submit their differences for final settlement. It is the merits arbitrator who has jurisdiction pursuant to s. 57(1). Article 16.7.1 of the Collective Agreement expressly states that the merits arbitrator’s decision will be “final and binding on all the Parties” and that the merits arbitrator must render a decision in writing within three months of the completion of the hearing.

[20] In contrast, the parties did not specify in the Collective Agreement that the GPA’s decisions are final and binding. According to the CBC, this is consistent with the informal and expeditious nature of the GPA process established under Article 16.1 of the Collective Agreement. Article 16.1 provides that hearings are to be held within 48 hours of a party’s request, which may be invoked at any point in the grievance procedure (up to and including the assignment of the merits arbitrator). The GPA must render a decision within 24 hours of the hearing with written reasons to follow if required.

[21] According to the CBC, the function of the GPA is that of a neutral, third-party tasked with providing directions to the parties in their fulfilment of Steps One and Two of the grievance procedure steps, up to and including the assignment of a merits arbitrator who is responsible for rendering a final and binding decision.

[22] If the parties do not comply with a direction of the GPA, then the other party may file a new grievance alleging a failure to fulfil an obligation in relation to the grievance procedure. Since both parties are required to fulfil any such obligations, this would constitute a breach of the Collective Agreement. The events giving rise to the new grievance would be separate and distinct from the events giving rise to the initial grievance that led to the parties’ participation in the grievance process.

[23] The CBC alleges that, for these reasons, any decision rendered by the GPA does not constitute a final settlement of a difference arising under the Collective Agreement within the meaning of s. 57(1) of the CLC. Therefore, the GPA does not exercise a power conferred by or under a statute and his, her or their decision is not reviewable under s. 2(1)2 of the JRPA.

[24] In order for a decision to be reviewable under s. 2(1)1 of the JRPA, the decision must (1) be made by the exercise of state authority, and (2) be of sufficient public character such that public law remedies are available. According to the CBC, the GPA’s decision in this case satisfies neither aspect of this test.

The Union’s Position on Reviewability

[25] The Union submits that the GPA is acting pursuant to s. 57(1) of the CLC. Section 57(1) leaves it to the parties to decide the method of dispute resolution for all workplace disputes, with the only restriction being that it be by “arbitration or otherwise.” The caselaw is clear that the fact the parties have chosen their own method of dispute resolution does not mean that an arbitrator chosen by that method is not a statutory tribunal from which judicial review lies: see Roberval Express Ltd. v. Transport Drivers, Warehousemen & General Workers Union, Local 106, 1982 34 (SCC), [1982] 2 S.C.R. 888.

[26] The GPA is an arbitrator that performs an essential role in achieving the final resolution of workplace disputes pursuant to the Collective Agreement. The GPA is styled as an arbitrator in the agreement and, consistent with s. 57(4)-(6) of the CLC, article 16.1 of the Collective Agreement states that if the parties cannot agree to a GPA, the Minister will appoint the GPA.

[27] The fact that the GPA does not make the final decision on the merits does not mean that the GPA is not exercising a statutory power of decision. The CLC provides a wide range of statutory powers that the arbitrator may exercise, including the power exercised by the GPA in the impugned decision: ordering the production of documents. Section 66 of the CLC provides that “any order or decision” of an arbitrator may, 14 days after it is made, be filed with the Federal Court and enforced as if it were an order of the Federal Court.

[28] The Union also submits that s. 2(1)1 of the JRPA is an alternate basis for this Court to find that it has jurisdiction to judicially review the decision at issue. The decision involved the exercise of state authority and is of a sufficiently public character to justify court intervention.

Analysis on the Issue of Reviewability

The GPA’s Role as Described in the Collective Agreement

[29] Article 16 of the Collective Agreement sets out the Dispute and Resolution and Grievance Procedure. Article 16.1 provides for the appointment of a Grievance Procedure Arbitrator. It provides as follows:

The parties agree to assign a “Grievance Procedure Arbitrator”. The Grievance Procedure Arbitrator shall be seized for the life of the Collective Agreement to determine, by conference call hearing or as otherwise agreed by the Parties, any disputes that arise under this Article concerning the exchange of relevant information, referrals of grievances to the national level, setting agenda items for discussion at the national level, referral of grievances to arbitration, the process for compilation of the list of arbitrators and the assignment of arbitrators from the Parties’ list. Conference call hearings under this provision shall take place within forty-eight (48) hours of being requested by either Party and the Grievance Procedure Arbitrator will render a decision within twenty-four (24) hours of the hearing, with written reasons to follow if requested by either party.

The Grievance Procedure Arbitrator shall also be seized for the life of the Collective Agreement to determine by conference call hearing, (as outlined above) or as otherwise agreed by the Parties, any disputes that arise concerning the assignment of an arbitrator under any other article of the Collective Agreement. The Parties agree that the Grievance Procedure Arbitrator shall not be utilized to hear preliminary matters or arguments that are of a legal nature and would normally be heard by the arbitrator hearing the merits of the case.

In the event that the agreed upon Grievance Procedure Arbitrator resigns or is otherwise unable to continue as the Grievance Procedure Arbitrator, the Parties will by mutual agreement, select another Grievance Procedure Arbitrator, or if the Parties are unable to agree on a replacement, the Parties shall request the Minister of Labour to appoint one forthwith. (Emphasis added.)

[30] Article 16.2 of the Collective Agreement provides for a mandatory complaints process that must be engaged before a grievance is filed. Article 16.3 makes it clear that at any point during the complaint stage or the grievance process the parties may attempt to resolve their dispute through any mutually agreed upon means.

[31] Article 16.4 details how and when a grievance may be filed if a dispute is not resolved at the complaint stage. It also details Step One of the grievance process. Under Step One a grievance that has been filed “must be submitted to the employee’s immediate manager copying the Local Grievance Committee Co-Chairs.” The Collective Agreement provides that local grievance meetings are to be held “as required” and “[u]nless the Parties otherwise agree, a local grievance meeting must take place within (20) business days from the date of the filing of the filing of the grievance.” At the local meeting, “the Parties will exchange relevant information relating to the issue(s) in dispute and will make a sincere effort to resolve the dispute.”

[32] If a grievance is settled at the local level, any such settlement

will be made without prejudice or precedent and will not be referred to or imposed by either Party to this Agreement unless the national representative for the Corporation and the Union jointly agree otherwise. The national representatives may review local level settlements and, where the settlement is deemed to be in violation of the Agreement or the Canada Labour Code, ask the local grievance committee to resolve such a violation.

After a local level meeting, the Parties must prepare a “Summary and Status Form for each grievance” (pursuant to a prescribed form), a copy of which is “forwarded to the Industrial Relations Officer and the National Union representative, at the time the grievance is referred to the national level.”

[33] Article 16.5 of the Collective Agreement details Step Two of the grievance process. If a grievance is not settled at Step One, it must be referred to the national level within ten (10) business days. National Grievance Committees have full authority to resolve the issues in dispute.

[34] If the issue is not settled at the national level, either Party may request that the grievance be resolved by arbitration. Article 16.7.2 provides that if a hearing is referred to arbitration, “[t]he arbitrator shall give his or her decision in writing within three (3) months of the completion of the hearing. The arbitrator’s decision will be final and binding on all Parties.”

[35] In short, the Collective Agreement provides for a three-step grievance process. The first two are aimed at achieving a resolution through a strictly prescribed process that is supervised by a GPA who has the power to make decisions governing the conduct of that process. The third, arbitration, is to be resorted to and decided by the merits arbitrator if resolution at the local and national level is not achieved.

The CLC Provisions

[36] The statutory source for the power of a labour arbitrator to make a decision in a federally-regulated industry is the CLC. The following provisions of the CLC are relevant to the issue of whether the decision of the GPA in this case is reviewable on the basis that it was made pursuant to the exercise of a statutory power of decision.

[37] The starting point for this discussion is s. 57(1), which is reproduced again below (for ease of reference):

Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

[38] Section 57(4) provides that where a collective agreement provides for final settlement of differences by an arbitrator, and the parties cannot agree on that arbitrator, then, on request, the Minister may appoint such an arbitrator.

[39] Section 3(1) defines an “arbitrator” as “a sole arbitrator selected by the parties to a collective agreement or appointed by the Minister under this Part.”

[40] The CLC provides for a wide range of powers that an arbitrator may exercise. These include the power to set procedures, including expediting procedures (s.60(1)(a.4)); to set out how submissions are to be made (s. 60(1)(a.3)); to make interim orders (s. 60(1)(a.2) and to “extend the time for taking any step in the grievance process or arbitration procedure set out in the collective agreement, even after the expiration of time”. By virtue of s. 60(1) of the CLC, an arbitrator appointed under a collective agreement is given powers conferred on the Canada Industrial Relations Board under s. 16 of the CLC, including the power to receive evidence as he, she or they deem fit (s. 16(1)(c)); and order production of documents or information (s. 16(1)(f.1)).

[41] Section 66 of the CLC provides that an order or decision of an arbitrator may be filed in Federal Court and enforced as if it is a judgment of that court.

The Relevant Caselaw

[42] In Roberval, the Supreme Court revisited its earlier decision in Howe Sound Co. v. International Union of Mine, Mill and Smelter Works (Canada) Local 663, 1962 37 (SCC), [1962] S.C.R. 318. There, the Supreme Court found that a tribunal that is set up through a consensual mechanism, as opposed to imposed by statute, could not qualify as a statutory board whose decisions are subject to judicial review. Provisions were added to the CLC following the release of Howe Sound, granting arbitrators the kinds of powers now found in s. 16 and 60 of the CLC. Examining these provisions in Roberval, the Supreme Court concluded that a statutory tribunal is not just one that has been imposed on the parties by statute, but includes a tribunal to which the parties have agreed to submit their disputes and which exercises powers granted to it by statute.

Analysis and Conclusion on the Issue of Reviewability

[43] Section 57(1) requires the parties to include in their collective agreement a method for the final settlement without work stoppage of any differences that may arise between them or the employees bound by the Collective Agreement. Article 16 of the Collective Agreement sets out the method that the parties to this collective agreement have chosen.

[44] Both parties referred to Article 16 as a unique clause in the labour relations context as it provides for the selection of two arbitrators to determine disputes – the GPA and the merits arbitrators. This is because the Collective Agreement includes a three-step process for the final resolution of such disputes. The GPA’s role begins once the grievance is filed and ends when the GPA’s duty to appoint the merits arbitrator is completed. Under the Collective Agreement both forms of arbitrators have essential but distinct roles to play in the process chosen by the parties for the final resolution of their disputes.

[45] It is clear that the parties intended the GPA to be considered an “arbitrator” within the meaning of the CLC. First, that is the word that the parties chose to describe the role in the Collective Agreement. Second, the Collective Agreement incorporates s. 57(4) of the CLC by providing that if the parties cannot agree on the appointment of a GPA, either party may apply to the Minister to make such an appointment.

[46] The duties of the GPA under the Collective Agreement include powers that the CLC confers on arbitrators, most notably, the power at issue in this particular case – the power to order disclosure of relevant information.

[47] The order of the GPA is enforceable under s. 66 of the CLC, which applies to any decision made by an arbitrator.

[48] The fact that the GPA does not finally determine the merits of the dispute between the parties does not detract from the fact that the GPA’s role is an essential component of the mechanism that the parties have chosen for the final resolution of differences between them concerning their collective agreement. In other words, the parties have chosen an unusual consensual mechanism that involves decision making by two different arbitrators, both of whom are exercising powers that are conferred on them by the CLC. Applying the reasoning in Roberval, both the GPA and the merits arbitrator should be considered statutory tribunals.

[49] Thus, I find that the decision at issue is reviewable by this Court, because in making the decision, the GPA was exercising a power conferred on him by statute. Given this finding there is no need to consider whether the GPA’s decision is also reviewable pursuant to s. 2(1)1 of the JRPA.

Is the GPA’s Decision Reasonable?

Applicable Standard of Review

[50] In this section of my reasons, I will be addressing the CBC’s submissions that the GPA erred in ordering disclosure of the investigator’s report. I will deal with the concerns about procedural fairness in the next part of this decision. All parties agree that the applicable standard of review for the issues I will be dealing with in this section is reasonableness.

The GPA’s Decision to Order Disclosure

[51] The GPA began by summarizing the essence of the grievance at issue, which was filed on December 4, 2021 – namely, an allegation that the investigation into the Grievor’s complaint about harassment was “botched”. As noted by the GPA, the grievance alleged that there were “serious doubts about the probity of the investigation, the impartiality of the investigator, the investigator’s diligence in meeting with witnesses and verifying the information gathered.”

[52] The grievance was referred to the grievance procedure, Step One of which mandated that it be dealt with before the Local Grievance Committee. The Union requested that the investigation report be provided to the three Union representatives who would be present at the local grievance meeting. The CBC refused.

[53] The matter went before the GPA who ordered that the CBC was to provide the report to the members of the Local Grievance Committee prior to their meeting. He also ordered that the CBC could further redact the report “so as to further protect the confidentiality of the participants in the investigation” and that if the CBC wished to require that the persons to whom the report was provided sign non-disclosure agreements, it could do so.

[54] The CBC’s primary submission before the GPA was that he had no jurisdiction to order disclosure of the report. Regarding this issue, the GPA acknowledged that:

The jurisdiction of the GPA is narrow, in that, it relates only to those disputes that may arise within the grievance procedure. However, within that narrow scope, the jurisdiction is broad. The jurisdiction is not to determine the merits of any grievance. Instead, it is focused on assisting the parties to processing and resolving grievances, including as here, to resolve disputes about the “exchange of relevant information.”

[55] The GPA found that the report formed the backbone of the complaint. At Step One of the process, the role of the Union representatives required them to do a number of things

First they must present the grievance. In doing so, they must set out the rationale for the grievance, the reasons it was filed and the remedy that is sought. Second, they must listen to the response from the CBC. Third, and most importantly, they must work together with the CBC to see if together they can fashion a satisfactory resolution to the grievance. In carrying out all three of those roles, they must be in a position to fairly assess what the investigator did or did not do. Much of that will become clear to them in reading the Report. To read it, they must have it disclosed to them.

[56] The GPA summarized and responded to the CBC’s reasons for opposing disclosure of the report:

(1) Privacy. The CBC submitted that a further sharing of the report might increase the likelihood that it would not remain private. The GPA acknowledged the legitimacy and importance of this concern, but found that it could be addressed in two ways : confidentiality agreements and further redactions to the report before it is disclosed to protect the identities of the people who participated in the investigation.

(2) Bill C-65. The CBC submitted that the Grievor was in the wrong forum. Instead of initiating a grievance, he should have used the available mechanisms within Bill C-65 to appeal the report. The GPA acknowledged that the CBC “might be right about this.” However, he found that the argument was one that should be made before the merits arbitrator:

[It is the merits arbitrator] who has the role to determine the jurisdictional matter. As the GPA, I am not the arbitrator assigned to hear this grievance. My role is to assist the parties in ushering the grievance through the grievance procedure and doing things to assist them in resolving them. I have no power and it is not my role to make a determination on any argument presented about the grievance.

(3) Chilling Effect: The CBC submitted that ordering the disclosure of the report to the Union representatives would have a chilling effect on others such that they would not bring forward their own complaints. Again, the GPA acknowledged that this “might be a possibility”. However, he found that “permitting the Report to be distributed confidentially to the three union representatives may have the opposite of a chilling effect. A system where an employee can bring a complaint about improper treatment, and, when not satisfied about the manner in which the complaint has been investigated, can also complain about that, creates a more robust set of protections. It is not only that the employee is to be protected from abuse. It is also that the employee is entitled to a fair and impartial investigation of the complaint.”

[57] The GPA concluded that disputes about the exchange of relevant information clearly fell within his jurisdiction. The report was relevant information and that “[n]ecessity that the union representatives at the grievance meeting have the Report is sufficient to overcome the reasons of the CBC to not disclose the Report.” He further found that the most serious of the concerns, privacy, could be addressed by the safeguards he put in place in his order. He then directed the parties, “having had the opportunity to review the Report, to meet and work collaboratively to fully understand each other’s viewpoint and to do the work necessary to attempt to resolve the [Grievor’s] grievance”. This was in keeping, he wrote, with “the intent and spirit of the excellent grievance procedure that the parties have created for themselves.”

The CBC’s Position as to Reasonableness

[58] The CBC submits that the GPA’s decision to order disclosure of the investigator’s report was unreasonable because he lacked the jurisdiction to make the order in question. In making this argument the CBC relies on Article 16.1 of the Collective Agreement, which provides that the GPA cannot “be utilized to hear preliminary matters or arguments that are of a legal nature and would normally be heard by the arbitrator hearing the merits of the case.” According to the CBC, the issues of relevance and the impact of Bill C-65 are legal issues that involve the consideration of legal arguments. Therefore, they must be dealt with by the merits arbitrator.

[59] The CBC argues that the GPA’s jurisdiction over disputes concerning the “exchange of relevant information” is a narrow one. It includes setting a timetable for the parties to complete their exchange of relevant information (where there is no dispute regarding relevance and/or production) during the grievance procedure. It also includes issuing directions on the appropriate arrangements to facilitate an exchange where, for instance, there is voluminous documentation.

[60] The CBC further submits that the unreasonableness of the GPA’s decision to assume jurisdiction was further apparent from the fact that it took the GPA nearly six weeks to provide written reasons.

The Union’s Position on the Reasonableness of the Disclosure Order

[61] In its factum the Union emphasized that the GPA’s disclosure order was consistent with the wording of the Collective Agreement, which was to resolve “any disputes that arise…concerning the exchange of relevant information.” The GPA’s conclusion that the report was relevant information was clearly a reasonable one.

[62] Further, ordering disclosure of the report was consistent with the purposes of the grievance resolution process as the parties expressed it in Article 16.1 of the Collective Agreement. As set out in that article, the purpose of the grievance process is “to ensure that disputes arising out of the application, interpretation or alleged violation of this Agreement are dealt with in an orderly and expeditious manner”.

[63] The GPA’s disclosure order was also consistent with the other stipulations in Article 16.1, namely the parties’ agreement to “give prompt and serious attention to disputes” and the parties’ agreement that it was “in their mutual interest to settle grievances at the local level.”

[64] Finally, ordering disclosure of the report so that matters could be resolved at Step One of the grievance process was consistent with one of the goals of Bill C-65, which is to respond effectively when harassment occurs in the workplace.

[65] In oral submissions, the Union responded to the CBC’s argument about the GPA’s lack of jurisdiction by pointing to the wording of Article 16.1. It does not say that the GPA has no jurisdiction to consider legal arguments. It says that the GPA does not have jurisdiction to consider legal arguments that would normally be heard by the merits arbitrator.

Analysis and Conclusion on the Issue of the Reasonableness of the GPA Disclosure Order

[66] Fundamentally, I agree with the Union’s submissions on this issue. Article 16.1 gives the GPA jurisdiction to hear and determine legal issues that relate to the exchange of relevant information at Steps One and Two of the grievance process as long as that issue is not one that would normally be determined by the merits arbitrator.

[67] The issue of whether the investigative report should be disclosed to the Union representatives who would be at the local grievance committee meeting is not one that the merits arbitrator would normally deal with. As the GPA recognized, the merits arbitrator may have to determine issues that relate to the use and relevance of the report, particularly given the CBC’s argument that the Grievor was in the wrong forum. Thus, he explicitly refrained from dealing with that legal argument.

[68] Article 16.1 gives the GPA jurisdiction to resolve any disputes that may arise concerning the exchange of relevant information. That jurisdiction is broad and not limited to purely scheduling issues as the CBC would suggest. The only limitation on that jurisdiction is the inability of the GPA to hear legal arguments that would normally be heard by the merits arbitrator.

[69] An example of an instance where a GPA might refuse to hear legal arguments that might normally be heard by the merits arbitrator is where the argument against production involves a claim of privilege. Privilege claims are fundamental to the administration of justice. As soon as disclosure is ordered in any context, the privilege asserted is lost. Thus, the GPA faced with a claim of privilege might well decide that that claim should be decided by the merits arbitrator. This is exactly what Brian Kellar, a former GPA appointed under a prior collective agreement between the parties, decided in an arbitration on June 19, 2018.

[70] In this case the interests at stake were privacy interests, interests that the GPA took reasonable steps to protect as part of his disclosure order.

[71] For these reasons I find that the GPA’s decision to order disclosure was reasonable.

Did the GPA violate the CBC’s right to procedural fairness?

[72] Issues of procedural fairness are not subject to a reasonableness review. The process leading to a decision is either procedurally fair or it is not.

[73] The CBC alleges that the GPA violated its right to procedural fairness by failing to consider its submissions and evidence concerning the following issues:

(a) The restrictions on the GPA’s jurisdiction pursuant to Article 16.1 of the Collective Agreement;

(b) That the CBC’s obligations under the CLC Regulations, particularly those related to privacy and confidentiality, prevented the CBC from sharing the investigation report with the Local Grievance Committee; and

(c) That the CBC did not refuse to provide the investigation report to the Union, as it had provided a redacted copy to the Union staff representative involved in the investigation and grievance process.

[74] There is no merit to the CBC’s argument about lack of procedural fairness. First, as the CBC acknowledges, it was given an opportunity to present evidence and make submissions on the issue in dispute. The hearings before the GPA took place on May 5 and June 15, 2022 by video conference. The CBC filed written submissions in advance of the first videoconference of May 5, 2022 and it made oral submissions at the videoconference hearing. No order was issued after the May 5^th^ hearing. Instead, since the Union was also making a request that the CBC answer questions about the investigation report, the GPA asked the Union to provide the CBC with details of the questions it was seeking to have answered. Once those questions were provided and the CBC indicated that it was refusing to answer those questions, the GPA held another videoconference call on June 15, 2022. The CBC made further submissions and filed further evidence prior to and during the second videoconference hearing. At the conclusion of the second hearing, the GPA issued an oral ruling ordering the disclosure of the investigation report subject to certain conditions. Later that day the GPA provided the parties with a draft version of his oral ruling, following which the GPA and both counsel engaged in further communications via email. On June 16, 2022, the GPA sent an email confirming his order. Since written reasons were requested, the GPA provided the parties with a copy of his reasons six weeks later.

[75] The process followed by the GPA in issuing an oral ruling without reasons was consistent with his obligations under the Collective Agreement to give a decision within 48 hours and to provide written reasons only if requested to do so by the parties. The GPA then fulfilled his obligation to provide such reasons. The fact that it took the GPA six weeks to provide those reasons has no bearing on either the reasonableness of the decision at issue or the issue of procedural fairness.

[76] The CBC’s main complaint about procedural fairness appears to be that the GPA did not deal with its submissions. I agree with the Union’s submission that this is an argument that is more properly directed at the reasonableness of the GPA’s decision. However, I find that there is no merit to this submission. The CBC’s main position before the GPA was that he had no jurisdiction to order the report in question. As the GPA’s reasons demonstrate he considered the CBC’s submissions on this point and dealt with them. The fact that he did not specifically advert to the limitations on his jurisdiction under Article 16.1 did not mean that he was not aware of those limitations. In fact, his reasons demonstrate that he was acutely aware of the need not to deal with legal arguments that would normally be dealt with by the merits arbitrator. That was his basis for not dealing with the CBC’s submissions about improper forum.

A Note About Prematurity

[77] Neither party raised the issue of prematurity before us. When it was raised by the court, neither party took the position that the application should be dismissed on the basis of prematurity. Given this and the obvious concern about the reviewability of the GPA’s orders (which could have an impact on further cases), this Court did not press the issue. The only reason I mention it at this point is to make it clear that it was not dealt with by us and that this decision does not stand as a bar to the argument being raised in a future case.

Disposition

[78] For these reasons, the application for judicial review is dismissed. Pursuant to the agreement of the parties, the Respondent Union is entitled to its costs of this application, fixed in the amount of $13,000.00, all inclusive.

Sachs J.

I agree _______________________________

D.L. Corbett J.

I agree _______________________________

J.A. Ramsay J.

Released: June 5, 2023

CITATION: Canadian Broadcasting Corporation v. Canadian Media Guild, 2023 ONSC 3303

DIVISIONAL COURT FILE NO.: 474/22

DATE: 2023/05/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, D.L. Corbett and J.A. Ramsay JJ.

BETWEEN:

CANADIAN BROADCASTING CORPORATION

Applicant

– and –

Canadian Media Guild AND Stephen Raymond

Respondents

REASONS FOR JUDGMENT

SACHS J.

Released: June 5, 2023