CITATION: Canadian Union of Postal Workers v. Canada Post Corporation, 2024 ONSC 5924

DIVISIONAL COURT FILE NO.: 312/24

DATE: 20241028

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Canadian Union of Postal Workers Applicant/Responding Party

AND:

Canada Post Corporation Respondent/Moving Party

BEFORE: O’Brien J.

COUNSEL: J. Esmonde and C. Perri, for the Applicant/Responding Party

C. Pigott and R. Counsell, for the Respondent/Moving Party

HEARD: October 23, 2024 by videoconference

ENDORSEMENT

Overview

[1] Canada Post brings this motion to quash the application for judicial review brought by the Canadian Union of Postal Workers (“CUPW” or “the union”) on the basis that it is premature.

[2] CUPW seeks judicial review of a labour arbitrator’s preliminary award. The union represents a former employee of Canada Post, Mr. Wong, who was terminated because he had dishonestly claimed certain healthcare benefits. The union filed a grievance pursuant to the collective agreement challenging the termination. The grievance is one of several outstanding grievances between Canada Post and CUPW concerning the discharge of employees for dishonestly claiming healthcare benefits following an investigation by Canada Post’s benefits provider, Canada Life.

[3] At the hearing, CUPW raised two preliminary objections. It submitted that the termination was null and void because Canada Post (through Canada Life) had failed to comply with the time limits prescribed in the collective agreement. The collective agreement required Canada Post to place a “report” on the employee’s personal file within ten days of the alleged infraction coming to its attention. The union also submitted the termination was null and void because Canada Post failed to exercise due diligence in its investigation as required by the collective agreement.

[4] In the award CUPW now seeks to have reviewed, the arbitrator dismissed the union’s first preliminary objection. He agreed that Canada Life stood in the shoes of Canada Post with respect to the time limits in the collective agreement, but rejected CUPW’s submission that the report placed on the grievor’s file was not within the required time limit.

[5] A continuation hearing is scheduled for November 12, 2024 before the arbitrator to hear the objection regarding whether Canada Post exercised due diligence in its investigation.

[6] Courts will decline to hear an application for judicial review of an interlocutory decision until the completion of the underlying administrative proceeding, absent exceptional circumstances. This approach prevents fragmentation of the administrative process and a piecemeal court proceeding. By allowing the underlying proceeding to complete its course, this approach also respects the role of the administrative decision-maker: Sudbury and District Health Unit v. ONA, 2023 ONSC 2419, at para. 11; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, (“Volochay”) at paras. 68-69.

[7] The union submits there are exceptional and unique circumstances that justify allowing the application to proceed in this case. It submits the arbitrator made a final determination of a grievor’s substantive rights in the context of a test case. It also emphasizes that the parties and other grievors and bargaining unit members would be prejudiced by the uncertainty of any delays in determining the issue.

[8] For the following reasons, the motion is allowed and the application is quashed.

Are there exceptional circumstances that justify this court exercising its discretion to judicially review the arbitrator’s preliminary award?

[9] The union does not dispute the arbitrator’s award is interlocutory. It is a preliminary award addressing only the question of whether the report placed in the employee’s file was within the time limit required by the collective agreement. The rest of the arbitration proceeding, including whether Canada Post had just cause to terminate the grievor’s employment, remains to be determined.

[10] The union submits exceptional circumstances exist in this case because the arbitrator’s decision was a binding test case with broad implications for other disputes. There are 11 other cases that CUPW says raise virtually identical issues with respect to the ten-day timeline in the relevant article of the collective agreement, article 10.02(b). In its submission, the parties have agreed to, in effect, treat Mr. Wong’s grievance as a test case and adjourn the 11 other similar termination grievances pending the disposition of the preliminary issues. The union also emphasizes that the arbitrator’s decision is “final and binding.” Under a provision of the collective agreement, the arbitrator’s decision binds the parties in all cases involving “identical and/or substantially identical circumstances.” Because of this, the arbitrator’s interpretation of article 10.02(b) will be binding on the 11 test cases.

[11] An agreement to treat the underlying decision as a test case does not on its own justify the court’s early intervention. Toronto Transit Commission v. Amalgamated Transit Union Local 113, 2020 ONSC 2642; (2020), 150 O.R. (3d) 602 was similar in that it involved the employer’s application to judicially review a preliminary issue in a case the parties agreed was one of several test cases. The test cases were also proceeding in the context of numerous grievances arising from terminations following a fraud investigation. Corbett J. on behalf of a panel of this court, found the application to be premature, expressly stating in the first paragraph: “[E]ven in a test case, such as this one, judicial review is generally not available from an arbitrator’s interlocutory decision.” He went on to explain at para. 9:

I appreciate that this is a test case, but in my view the fact that the parties have agreed that the arbitrator’s decision in this case shall be applied in the remaining ten test cases is not sufficient to displace the considerations that weigh against judicial review of an interlocutory order. The case should proceed through the administrative process and any judicial review should be brought thereafter on issues that turn out to be of significance to the result.

[12] The union distinguishes Toronto Transit Commission because of the nature of the issue sought to be judicially reviewed. It submits article 10.02(b) protects a substantive right related to job security. It describes article 10.02(b) as requiring timely notice to allow the employee to seek union representation and prepare a defence while the evidence is fresh.

[13] CUPW also equates the time limit in article 10.02(b) to a limitation period. For that argument, CUPW relies on Corbett J.’s statement in Toronto Transit Commission at para. 21 where, in justifying his finding of prematurity, he noted that the court was not faced with an application from “an interlocutory decision on a preliminary point, such as a limitations defence” which would “have the effect of avoiding the process below, with substantial cost savings.” Overall, CUPW submits the nature of the issue being determined in the test case also adds to the constellation of factors leading to a finding that the circumstances here are exceptional.

[14] The fact that the application addresses a time limit does not persuade me that the circumstances are exceptional. I agree that if the application is allowed to proceed and the union is successful on the application, the application will be dispositive of the arbitration, which would be efficient. On the other hand, if the union is unsuccessful on the application, the arbitration will have been significantly delayed. Further, efficiency on its own does not justify early intervention. In many cases, the court’s early intervention would be efficient for at least one party. This is not sufficient to overcome the policy reasons against fragmenting administrative proceedings. As CUPW acknowledges, Corbett J. went on in Toronto Transit Commission to say that even in cases dealing with limitations issues, “the general principle is to await the conclusion of the process below.”

[15] I also do not find the argument that article 10.02(b) deals with a substantive right persuasive. In Toronto Transit Commission, the application was permitted to proceed even though the ruling permitted the admission of documents over which the union claimed settlement privilege, which is an important protection in our legal system. In Sudbury District Health Unit, the issue was whether the employer had engaged in prima facie discrimination based on creed – again, an important right – but the court found a judicial review of that finding to be premature. The Court of Appeal has emphasized that even questions of jurisdiction or breaches of procedural fairness do not entitle a party to early access to the courts: Volochay, 2012 ONCA 541, at paras. 63 and 67.

[16] Additionally, there is a specific downside to early intervention. In Sudbury District Health Unit, at para. 31, the court emphasized the importance of having all the administrative decision-maker’s findings, rather than their findings only on the isolated issue sought to be reviewed, because those findings may be “suffused with expertise, legitimate policy judgments and valuable regulatory expertise.”

[17] This consideration has force in the circumstances here. The submission that the time limit in article 10.02(b) was not met is or could be related to a determination of the other preliminary issue pending before the arbitrator, whether the Canada Life acted with sufficient diligence in conducting its investigation. In its initial submissions before the arbitrator, the union itself relied on a lack of diligence as part of the reason why article 10.02(b) was not met. It submitted if the arbitrator were to conclude Canada Life did not have sufficient knowledge of the alleged infraction to trigger the ten-day clock earlier, this was because it did not act with sufficient diligence. The court would benefit from the full record of the arbitrator’s findings on these issues before intervening.

[18] The union also relies on Ontario (Ministry of Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085, (2015), 125 O.R. (3d) 732 and London District Catholic School Board v. Weilgosh, 2024 ONSC 3857. These are both cases in which this court permitted early intervention. I disagree that those cases are comparable.

[19] In De Lottinville, the Human Rights Tribunal had joined five applications that all raised the same preliminary issue, which was interpreting a provision of the Human Rights Code, R.S.O. 1990, c. H. 19 to determine whether applicants were foreclosed from pursuing their complaints at the Human Rights Tribunal when those complaints were already the subject of a prior complaint to an administrative body.

[20] In Weilgosh, the Tribunal joined two cases to address the preliminary issue of whether labour arbitrators had exclusive jurisdiction to determine claims of discrimination and harassment falling within the scope of a collective agreement.

[21] CUPW compares the circumstances here to those cases because of what it says is the broad impact of the issue in the current case. In Weilgosh, the court emphasized that delaying the determination of the jurisdictional issue would result in uncertainty for employers, employees, and unions. CUPW’s evidence is that the collective agreement here applies to a bargaining unit of 50,000 members across the country and that article 10.02(b) is commonly raised in arbitration proceedings. It submits the parties and a large number of employees will be faced with uncertainty if the court does not intervene in this case.

[22] I agree with Canada Post that the circumstances in Weilgosh and De Lottinville are distinguishable. They involved the interpretation of legislation of general application across the province rather than a collective agreement between two parties. Although CUPW submits the decision in this case will have broad implications, the date the article 10.02(b) time limit was triggered is at least partly fact-driven. In each article 10.02(b) case, the arbitrator needs to determine “…the date of the employee’s alleged infraction, or of its coming to the attention of the Corporation…”.

[23] It is difficult to predict the degree to which the arbitrator’s finding on the particular facts of Mr. Wong’s case will have broad impact. Assuming they are sufficiently similar to the 11 test cases held in abeyance that they will be binding, they may have less relevance to other types of 10.02(b) cases that arise in a wide variety of factual scenarios.

[24] Perhaps more importantly, in Weilgosh and De Lottinville, the Tribunal itself treated the issue in an exceptional manner. In both cases, the Tribunal constituted a three-person panel and joined together applications that raised the same issue. The Tribunal itself was a party to the proceeding that sought early judicial review. Multiple interveners also intervened in both applications. Here, only one of the parties is requesting the court’s intervention. In my view, the circumstances here are much closer to Toronto Transit Commission than to Weilgosh and De Lottinville. I do not find them to be exceptional.

Disposition

[25] The application is premature and does not warrant early judicial review.

[26] The motion therefore is allowed. As agreed by the parties, CUPW shall pay costs of $5,000 to Canada Post.

O’Brien J.

Released: October 28, 2024