PUC Services Inc. v. Power Workers’ Union, 2024 ONSC 5470
CITATION: PUC Services Inc. v. Power Workers’ Union, 2024 ONSC 5470
DIVISIONAL COURT FILE NO.: DC-23-00002187
DATE: 20241003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.T. Bale, Nieckarz, Davies JJ.
BETWEEN:
PUC Services Inc.
Applicant
– and –
Power Workers’ Union, Canadian Union of Power Workers Employees, Local 1000
Respondent
COUNSEL:
J. Paul R. Cassan and Jennifer Clay, for the Applicant
Joshua Mandryk and Char Wiseman, for the Respondent
HEARD at Sudbury (by video conference): April 3, 2024
REASONS FOR JUDGMENT
Davies J.
1. Overview
[1] PUC Services Inc. suspended Jeff Priddle for one day for unprofessional and disrespectful conduct. Mr. Priddle was a longtime, unionized employee of PUC and a representative of the Power Worker’s Union, Local 1000. Mr. Priddle was disciplined for his conduct as a union representative during and after a disciplinary meeting involving another PUC employee.
[2] The Power Workers’ Union grieved Mr. Priddle’s suspension. The grievance proceeded to an arbitration under the expedited process set out in the collective agreement. The Arbitrator found that although Mr. Priddle’s conduct was unprofessional and rude, union representatives are to be afforded latitude in their dealings with management. The Arbitrator, therefore, concluded that PUC did not have just cause to discipline Mr. Priddle and struck the suspension.
[3] PUC seeks judicial review of the Arbitrator’s Decision.
[4] PUC advanced two arguments. First, PUC argues the arbitration was procedurally unfair because the Arbitrator refused to allow PUC to raise several preliminary issues and failed to give reasons for his procedural rulings. Second, PUC argues the decision was unreasonable because the Arbitrator applied the wrong legal test for determining the scope of the protection for union representatives.
[5] The Union argues that, through the collective agreement, the parties agreed to an expedited process in which the Arbitrator has authority to make procedural rulings. The Union argues the process was fair. Finally, the Union argues the Arbitrator applied the right test when deciding that Mr. Priddle’s conduct was protected and the decision on the merits was reasonable.
[6] I agree with PUC that the procedure below was unfair because the Arbitrator refused to hear and decide the preliminary objection to the admissibility of evidence. In my view, the arbitration was procedurally unfair. I would, however, decline to exercise my discretion to order a new hearing. I am satisfied the outcome of another hearing would inevitably be the same because the arbitrator accepted PUC’s evidence about the seriousness of Mr. Priddle’s conduct and applied the correct test to decide that his conduct fell within scope of protection for union representatives.
[7] I would, therefore, dismiss the application.
2. Was the arbitration procedurally unfair?
[8] PUC argues the arbitration was unfair in three respects:
a. The Arbitrator refused to hear PUC’s objection to the admissibility of evidence about the circumstances of the other employee’s termination;
b. The Arbitrator refused to grant an adjournment to allow PUC to adduce reply evidence; and
c. The Arbitrator denied PUC leave to cross-examine Mr. Priddle.
[9] PUC also argues that this court cannot meaningfully review any of the Arbitrator’s procedural decisions because the Arbitrator failed to give reasons.
[10] The Union argues the parties agreed to an expedited process, which authorizes the Arbitrator to determine the procedure. The Union also argues the procedural rulings did not relate to a key issue in dispute, so the Arbitrator was not required to give reasons.
[11] For the reasons that follow, I agree that it was unfair for the Arbitrator to refuse to hear PUC’s preliminary objection to the admissibility of some of the evidence adduced by the Union. I am not satisfied the Arbitrator’s decision to deny an adjournment was unfair. I am also not satisfied the Arbitrator’s decision not to grant PUC leave to cross-examine Mr. Priddle was unfair.
[12] Before analyzing the fairness of the process, it will be helpful to briefly set out the chronology of events leading to Mr. Priddle’s suspension and the arbitration hearing.
[13] Mr. Priddle was suspended because of his conduct during and after a disciplinary meeting involving another PUC employee, Tami Nicholas, on October 26, 2020. Mr. Priddle attended that meeting as a union representative. During the meeting, Ms. Nicholas was terminated.
[14] PUC took the position that Mr. Priddle violated the Workplace Violence Policy by (a) making rude and disruptive comments during Ms. Nicholas’s termination meeting that were disrespectful to management and to Ms. Nicholas, and (b) berating and reprimanding a management employee after the meeting in public for how the termination was handled.
[15] The grievance of Mr. Priddle’s one-day suspension was scheduled for arbitration on October 27, 2022, two years after the events in question. A second grievance involving another employee that also arose out of the events surrounding Ms. Nicholas’s termination was scheduled to be heard the same day by the same Arbitrator.
[16] Under the provisions of the collective agreement, the Union should have filed its written brief 15 days before the hearing and PUC should have filed its response 10 days before the hearing. However, PUC and the Union agreed that PUC would file its brief first. Initially, PUC was to file its brief on October 7, 2022, but asked for an extension to October 13, 2022. The Union agreed to the extension on the understanding that its brief would not be filed until October 24, 2022, three days before the arbitration hearing.
[17] PUC submitted five witness statements, including statements from each of the management employees present at Ms. Nicholas’s termination meeting.
[18] The Union filed witness statements from Mr. Priddle, Ms. Nicholas and the one other union representative involved in Ms. Nicholas’s termination meeting. The Union also filed the final order from the grievance of Ms. Nicholas’s termination which set out the details of the resolution of that matter.
[19] On October 26, 2022 – the day before the arbitration – counsel for PUC sent a letter to the Arbitrator raising several issues. First, PUC objected to the admissibility of the evidence filed by the Union about the merits of Ms. Nicholas’s termination. PUC stated it intended to bring a motion to strike those portions of the Union’s evidence at the start of the arbitration and to ask that the grievance be dismissed as an abuse of process. Second, PUC stated that if the Arbitrator found the evidence about Ms. Nicholas’s termination was admissible, PUC would seek an adjournment to file reply evidence because it had “significant evidence to demonstrate [Ms. Nicholas’s] strategic untruthfulness.” Third, PUC stated it intended to seek leave to cross-examine Mr. Priddle. PUC took the position that Mr. Priddle’s credibility would be “determinative of the issue in dispute.”
[20] The Arbitrator refused to hear PUC’s preliminary motion on the admissibility of evidence related to Ms. Nicholas’s termination and refused to receive PUC’s written submissions on the issue. The Arbitrator did not give reasons for refusing to hear PUC’s motion.
[21] PUC sought an adjournment of the arbitration so it could gather relevant reply evidence. The Union objected to the adjournment. The Arbitrator refused to grant an adjournment but allowed PUC to file some additional documents in reply. The Arbitrator did not give reasons for denying an adjournment.
[22] The arbitration proceeded on the evidence filed by the parties. PUC was not permitted to cross-examine Mr. Priddle. The Arbitrator did not give reasons for refusing leave to cross-examine.
[23] I turn now to whether the arbitration met the level of procedural fairness required in the circumstances.
[24] When an administrative decision-maker, like a labour arbitrator, makes a decision that affects the rights, privileges or interests of an individual, the common law duty of procedural fairness is presumed to apply. However, the content of the duty of procedural fairness varies and is context-specific: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 77. To decide whether the process adopted by the Arbitrator was fair, I must consider (a) the nature of the decision, (b) the nature of the “statutory scheme” under which the decision was made, (c) the importance of the decision to those affected by it, (d) the legitimate expectations of the parties, and (e) the choice of procedure made by the decision-maker: Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28.
[25] In terms of the first two factors, this arbitration was governed by the collective agreement negotiated by the parties. Some elements of the process are like a judicial process, which supports a finding that the arbitrator owed greater procedural protections to the parties: Baker, at para. 23. Other elements are quite distinct from a judicial process, which suggests that fewer procedural protections may be required.
[26] The collective agreement states that each grievance will be heard by an independent decision-maker who has authority to determine the procedure to be followed. Under the collective agreement, the arbitrator has the power to make interim orders of either a procedural or substantive nature. The Union and employer have participatory rights in the arbitration. The collective agreement contemplates an adversarial process in the sense that each side is entitled to put forward their best position in writing with the assistance of counsel. These elements are similar to judicial proceedings and support a finding that more robust procedural fairness is required: Baker, at para. 23.
[27] On the other hand, the collective agreement expressly contemplates an expedited process. The collective agreement states that an arbitrator could hear up to 15 cases a day. The collective agreement states that the arbitrator “may admit evidence that would not be admissible in court and may rely on such evidence to render a decision.” Finally, the collective agreement states that arbitrations will proceed on a written record unless the Arbitrator decides oral evidence is necessary. In other words, there is a presumption that witnesses will not be cross-examined. These elements are distinct from a judicial process and support a finding that less robust procedural fairness is required.
[28] The arbitrator’s decisions are final, binding and precedent setting. Greater procedural protections are generally required when there is no route of appeal or when the decision is determinative of the issue: Baker, at para. 24.
[29] The third factor is the importance of the decision to the individual or individuals affected by it. Greater procedural protections are required for decisions that have a significant impact on the lives of those affected: Baker, at para. 25. This arbitration related to the discipline of a unionized employee for his conduct as a union representative. While Mr. Priddle was given only a one-day suspension, the Supreme Court has recognized that disciplinary suspension can have a “grave and permanent” consequence on a person’s career: Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113. The same procedure applies to all grievance arbitration under this collective agreement, including grievances in relation to employee terminations. As a result, the outcome of a grievance arbitration can have a profound impact on the employee involved.
[30] The fourth factor is the reasonable expectations of the parties. Based solely on the language of the collective agreement, the parties agreed to an expedited, summary process for their grievance arbitrations with relaxed rules of evidence. The collective agreement says up to 15 arbitrations could be heard a day. The parties also agreed the arbitration would presumptively proceed on a written evidentiary record. These factors suggest the parties expected the duty of procedural fairness to be significantly reduced in favour of expediency.
[31] While the collective agreement describes an expedited, summary process, that is not how this matter unfolded. First, it took two years for this grievance to be set for an arbitration. Second, only two arbitrations were scheduled that day. Third, the volume of materials filed by the parties belies the suggestion that Mr. Priddle’s grievance was intended to be dealt with summarily and expeditiously. PUC submitted five witness statements totaling close to 700 pages. The Union submitted three witness statements totaling close to 200 pages. The reality of how this hearing unfolded suggests the parties expected more from the process than a quick, summary disposition of grievances on a paper record notwithstanding the language of the collective agreement.
[32] The final factor requires an analysis of the procedural choices made by the Arbitrator. The Collective Agreement gives the arbitrator wide latitude to determine the process to be followed. But the process cannot be arbitrary or unfair.
[33] In my view, one aspect of the proceedings was unfair. It was unfair for the Arbitrator to refuse to hear PUC’s motion to strike evidence it felt was irrelevant and prejudicial. PUC had a right to know the case it had to meet during the arbitration: IWA v. Consolidated Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, at p. 339. Because the Arbitrator refused to even hear PUC’s motion to strike and refused to rule on the admissibility of the evidence about Ms. Nicholas’s termination, PUC did not know the case it had to meet. The absence of reasons explaining why the Arbitrator declined to hear the motion and whether the contested evidence was admissible adds to the unfairness. While reasons are not required for all administrative decisions, the evidentiary issue raised by PUC was important to its ability to know the case it had to meet and to effectively respond to the Union’s grievance. The Arbitrator should have at least considered PUC’s motion and given some reasons to explain whether the evidence was admissible or not.
[34] I am not satisfied the Arbitrator’s decision to deny the adjournment request was unfair. The Arbitrator had the authority to deny an adjournment. Labour arbitrators are experts and are sensitive to the dynamics at play in labour relations disputes: Toronto (City) Board of Education v. OSSTF, District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, at para. 35. It is not realistic to require labour arbitrators, in the context of a collective agreement that contemplates multiple hearings a day, to give reasons for routine procedural decisions. While the Arbitrator denied PUC an adjournment, he allowed PUC to adduce the reply evidence it had available.
[35] Finally, I am not satisfied the Arbitrator’s decision to deny PUC leave to cross-examine Mr. Priddle was unfair. The collective agreement states that the arbitration will proceed on a paper record unless the Arbitrator feels it is necessary to hear oral evidence. Given the presumption in the collective agreement, it was not unfair for the arbitrator to deny leave to cross-examine. And requiring arbitrators to give reasons for not departing from the presumptive process would undermine the intentions of these parties to resolve their labour disputes expeditiously.
[36] I, therefore, find the procedure below was unfair to the extent the Arbitrator refused to hear PUC’s motion to strike some or all the Union’s evidence.
3. Should the matter be remitted back for a new hearing?
[37] In most cases, the Court will order a new hearing when the proceedings below were procedurally unfair. However, judicial review is a discretionary remedy. The court may decline to remit a matter back for a new hearing even if the decision below is flawed, provided the Court is satisfied that the outcome of the new hearing will inevitably be the same and remitting it back will serve no useful purpose: Vavilov, at para. 142.
[38] I am satisfied this case is one of those exceptional cases where remitting it back for a new hearing will serve no useful purpose. The nature of Mr. Priddle’s conduct and whether his conduct fell within the protection afforded to union representatives were the main issues in this grievance. Neither PUC’s motion to strike nor its request to adduce reply evidence to discredit Ms. Nicholas could have changed the result on either issue. First, the Arbitrator did not rely on impugned evidence about the merits of Ms. Nicholas’s termination. Second, even if PUC had been allowed to adduce reply evidence to undermine Ms. Nicholas’s credibility, it could not have changed the result because the Arbitrator entirely accepted PUC’s evidence about the seriousness of Mr. Priddle’s conduct. Third, the Arbitrator applied the right legal test when deciding whether Mr. Priddle’s conduct was protected.
a. The Arbitrator did not rely on any evidence about the merits of Ms. Nicholas’s termination
[39] It was inevitable that some information about Ms. Nicholas’s termination, including the reason for her termination, would form part of the record in Mr. Priddle’s grievance. It was, after all, Mr. Priddle’s conduct during and after her termination meeting that gave rise to the one-day suspension and grievance.
[40] In its Arbitration Brief, PUC took the position that, on the day of Ms. Nicholas’s termination, Mr. Priddle was disrespectful and threatening towards management. PUC also alleged that his conduct was disrespectful towards Ms. Nicholas. PUC argued that Mr. Priddle engaged in a “course of conduct designed to intimidate and embarrass management, contrary to the expectations of professional and respectful conduct in the workplace.” In support of its position, PUC filed statements from the three management employees who were at Ms. Nicholas’s termination meeting.
[41] In its October 26, 2022 letter to the Arbitrator, PUC claimed to have been shocked at the inclusion of material from Ms. Nicholas in the Union’s materials. That assertion is difficult to understand. It could not have come as a surprise to PUC that the Union would file statements from the other people at the meeting, including Ms. Nicholas. Ms. Nicholas was present when Mr. Priddle was alleged to have made the unprofessional, disruptive comments. There was nothing improper or prejudicial about her describing what she remembers about that meeting. Ms. Nicholas also spent time with Mr. Priddle after the meeting ended. She described how she reacted to the news of her termination and how she was feeling immediately after the meeting. Her statement provided some information about the events leading to her termination but focused largely on what happened on the day of her termination and her reaction to the news. Her statement did not discuss the details of the grievance of her termination. Rather, the Union filed a published decision on the preliminary motions from the grievance of Ms. Nicholas’s termination and the final order from the arbitration of the grievance of Ms. Nicholas’s termination which confirmed the damages she received.
[42] Neither the Union nor PUC was entitled to re-litigate the merits of Ms. Nicholas’s termination. That issue was decided in the context of the Union’s grievance in her case. Even if the Arbitrator had heard and dismissed PUC’s motion to strike the evidence adduced by the Union about Ms. Nicholas’s termination, PUC would not have been entitled to adduce evidence in reply to justify her termination. There was, therefore, no purpose in adjourning Mr. Priddle’s grievance to allow PUC to reply to evidence about the merits of Ms. Nicholas’s termination.
[43] Importantly, even if the evidence the Union filed about Ms. Nicholas’s termination or the impact of the termination on her was irrelevant, the Arbitrator did not rely on any of it in his reasons for allowing the grievance of Mr. Priddle’s suspension. The Arbitrator noted the reasons for Ms. Nicholas’s termination as part of the context in which Mr. Priddle’s conduct arose. He also noted parenthetically that there had been a subsequent arbitration award which awarded Ms. Nicholas substantial damages, which is factually true. But the Arbitrator did not rely on evidence about the merits of her termination when assessing Mr. Priddle’s conduct. The Arbitrator’s reasons focused entirely on Mr. Priddle’s conduct and whether the suspension was justified.
b. The Arbitrator accepted PUC’s evidence about Mr. Priddle’s conduct
[44] Even if the evidence about Ms. Nicholas’s grievance was struck and/or PUC was permitted to adduce reply evidence to undermine Ms. Nicholas’s credibility, that could not have changed the Arbitrator’s factual findings about Mr. Priddle’s conduct because, to the extent the Union’s evidence about Mr. Priddle’s conduct differed from what PUC alleged, the arbitrator accepted PUC’s evidence.
[45] In its discipline letter, PUC alleged that Mr. Priddle laughed, snickered and made disrespectful comments during Ms. Nicholas’s termination meeting. PUC also argued that Mr. Priddle used profanities during the meeting to intimidate management.
[46] PUC took issue with two comments Mr. Priddle was alleged to have made during the meeting. First, PUC alleged that Mr. Priddle said, “you’ve got to be kidding me” as management was telling Ms. Nicholas she was being terminated. Second, PUC alleged that Mr. Priddle made the following comment after Ms. Nicholas expressed her disbelief about what was happening: “Tami stop, don’t waste your time. This is unbelievable. We will get in front of an arbitrator and we’ll get the fucking truth.”
[47] PUC alleged that Mr. Priddle also berated management as the meeting ended by saying they should be “ashamed of themselves” and by questioning their ability to sleep at night.
[48] PUC alleged that after Ms. Nicolas’s termination meeting ended, Mr. Priddle told the human resources manager that they had botched the termination and had acted in a disrespectful manner. PUC characterized Mr. Priddle’s conduct as aggressive, disrespectful, disruptive, demeaning, unprofessional, intimidating and insubordinate.
[49] In the statement Mr. Priddle submitted as part of his grievance, he admitted some of the conduct PUC alleged. For example, he admitted he said that PUC management should be ashamed of themselves after the meeting ended. He also admitted he said, “I don’t know how you sleep at night.” Mr. Priddle explained that he was shocked by PUC’s decision to terminate Ms. Nicholas. He said he believed the incident giving rise to Ms. Nicholas’s termination “stemmed from wrongdoing committed by management.” He also described the day of Ms. Nicholas’s termination as “emotionally charged.”
[50] Mr. Priddle said he did not remember making some of the statements attributed to him by PUC management. For example, Mr. Priddle wrote, “while I do not recall making this statement, I also may have said something along the lines of ‘you have got to be kidding me,’ in response to learning Ms. Nicholas had been fired.” Mr. Priddle did not admit he said, “Tami stop, don’t waste your time. This is unbelievable. We will get in front of an arbitrator and we’ll get the fucking truth.” Rather, he suggested he may have said something along the lines of “Tami stop, we will get this to an arbitration.”
[51] Ms. Nicholas also described what she remembers about what was said in the termination meeting. Ms. Nicholas said she does not recall Mr. Piddle saying, “you’ve got to be kidding me.” Ms. Nicholas also said she does not recall Mr. Priddle saying, “Tami stop, don’t waste your time. This is unbelievable. We will get in front of an arbitrator and we’ll get the fucking truth.” In her witness statement, Ms. Nicholas wrote, “I am certain that no one used curse words in the meeting that day.” She also wrote, “I am certain that Mr. Priddle did not use curse words or swear in the termination meeting.” Ms. Nicholas said she recalls Mr. Priddle making comments to the effect of “how do you live with yourselves” and “how do you sleep at night” as they left the meeting. Ms. Nicholas’s statement is silent on whether she heard Mr. Priddle tell the management employees they should be ashamed of themselves.
[52] To the extent Mr. Priddle’s description or Ms. Nicholas’s description of what happened differed from what PUC alleged, the arbitrator accepted PUC’s evidence. The Arbitrator found that Mr. Priddle made comments that were “highly disapproving of what the Employer had done and made sounds showing his contempt for the proceedings.” The Arbitrator found that Mr. Priddle said “Don’t waste your time. This is unbelievable. We will get in front of an arbitrator and we’ll get the fucking truth” after Ms. Nicholas insisted that she had not done what PUC was alleging she had done.
[53] In terms of what happened after the meeting ended, the Arbitrator found that Mr. Priddle told a management employee they had “botched” the termination. The Arbitrator found Mr. Priddle was expressing his views passionately and in a raised voice. The Arbitrator found that Mr. Priddle’s comments were harsh and unprofessional.
[54] Striking some of the Union’s evidence or allowing PUC to adduce evidence to discredit Ms. Nicholas could not change the Arbitrator’s factual findings about Mr. Priddle’s conduct, all of which favoured PUC. Despite not hearing or ruling on PUC’s motions, the Arbitrator did what PUC wanted him to do – he ignored the evidence about the merits of Ms. Nicholas’s termination and he rejected Ms. Nicholas’s evidence about what Mr. Priddle did on the day of her termination.
c. The arbitrator applied the correct test
[55] PUC argues the Arbitrator’s decision is unreasonable because he failed to consider the employer’s obligation under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and applied the wrong test when deciding whether Mr. Priddle’s conduct fell within the scope of protected union activities.
[56] I would not give effect to this argument.
[57] First, PUC did not raise the application of the Occupational Health and Safety Act in its submissions to the Arbitrator. The focus of PUC’s argument before the Arbitrator was that Mr. Priddle’s conduct violated their Workplace Violence Policy, which requires PUC employees to treat all other employees “professionally and respectfully at all times.” Parties are expected to make their best argument at first instance. It is not fair to criticize the Arbitrator’s decision as unreasonable for failing to consider an argument that was not made.
[58] Second, the Arbitrator did not apply the wrong standard for determining the scope of protected union activities.
[59] The Arbitrator described the scope of the protection afforded to union representatives as follows:
Unless a union representative’s actions are malicious or knowingly or recklessly false, or illegal, or actually threatening or intimidating, there is wide scope of protection for communications between collective representatives in the labour relations relationship.
[60] The test articulated by the Arbitrator is consistent with other arbitration decisions. For example, in Re Burns Meats Ltd. and Canadian Food & Allied Workers, Local P139 (1980), 1980 4012 (ON LA), 26 L.A.C. (2d) 379, the Arbitrator held that the protection for union representatives extends to lawful union duties and does not cover illegal or malicious acts, or comments that are knowingly or recklessly false. Physical threats and intimidation are also not protected: Canada Post Corp. and CUPW (Condon), [2013] C.L.A.D. No. 316, at para. 17.
[61] In Canada Post Corp. and CUPW (Condon), a union steward received a one-day suspension for using insulting and vulgar language towards a member of management. The issue in that arbitration was whether the union steward’s conduct fell outside the scope of immunity for union representatives carrying out union activities. After a lengthy review of the caselaw on the scope of the immunity afforded to union representatives, the Arbitrator articulated the test as follows at para. 18:
[T]he tests to be applied in determining whether discipline imposed on a union official is justified may be summarized as follows:
Was the official acting in the capacity of a union representative at the time of the impugned conduct?
Could the conduct be properly characterized as malicious in that statements made were knowingly or recklessly false?
Was the impugned conduct intimidating or physically threatening?
Did the conduct go too far and exceed what might reasonably be considered as a legitimate exercise of a union function?
[62] The Arbitrator applied the same test when deciding whether PUC was justified in disciplining Mr. Priddle.
[63] Contrary to the submissions of PUC, the Arbitrator did not expand the scope of protection to include intimidating or belligerent conduct. Rather, the Arbitrator rejected PUC’s characterization of Mr. Priddle’s conduct. PUC alleged that Mr. Priddle’s conduct during the meeting was aggressive, disrespectful, demeaning, disruptive and insubordinate. PUC also alleged that his conduct was deliberately intimidating. If the Arbitrator had found that Mr. Priddle’s conduct was intimidating or threatening, he should not have been afforded the protection granted to union representatives. But the Arbitrator rejected those characterizations of Mr. Priddle’s conduct during the termination meeting. The Arbitrator found that Mr. Priddle was unprofessional and unnecessarily rude but not intimidating.
[64] In terms of Mr. Priddle’s conduct after the meeting ended, the Arbitrator rejected PUC’s argument that Mr. Priddle’s comments to the human resources manager about the botched termination were intimidating or demeaning. The Arbitrator found that Mr. Priddle’s comments were merely harsh and unprofessional.
[65] PUC’s real complaint is with the Arbitrator’s factual findings about the nature of Mr. Priddle’s conduct. Those findings are entitled to significant deference on review.
[66] The Arbitrator applied the proper test to his findings and concluded that although Mr. Priddle exceeded the bounds of respectful exchanges, it fell within the latitude afforded to union representatives.
4. Conclusion and Costs
[67] While I agree with PUC that the arbitration hearing was unfair to the extent the Arbitrator failed to hear and rule on PUC’s preliminary objection to the admissibility of the evidence, I find the breach of procedural fairness had no impact on the outcome of the arbitration. I would not exercise my discretion to grant the application because I am satisfied the result of a new hearing will inevitably be the same and there is no purpose in remitting this matter for a new hearing.
[68] I would, therefore, dismiss the application.
[69] The parties reached an agreement on the issue of costs. Consistent with that agreement, I would order PUC to pay costs in the amount of $7500 inclusive of HST and disbursements to the Union.
“Davies J.”
“I agree. S.T. Bale J.”
“I agree. Nieckarz J.”
Released: October 3, 2024
CITATION: PUC Services Inc. v. Power Workers’ Union, 2024 ONSC 5470
DIVISIONAL COURT FILE NO.: DC-23-00002187
DATE: 20241003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.T. Bale, Nieckarz, Davies JJ.
BETWEEN:
PUC Services Inc.
Applicant
– and –
Power Workers’ Union, Canadian Union of Power Workers Employees, Local 1000
Respondent
REASONS FOR JUDGMENT
Davies J.
Released: October 3, 2024