Canadian Union of Public Employees Local 82

v.

Corporation of the City of Windsor

Court File No. 476/13

Heard March 26, 2014

Motion to Stay the Hearing of the Grievance Arbitration

[1]. The parties agree on the legal test for the granting of a stay but are at odds on the application of the test to the facts of this case.

[2]. The first aspect of the test, whether there is a “serious issue to be tried” sets the bar relatively low in terms of the apparent merit to the judicial review application. That said, I am of the view the applicant union barely meets the threshold. The judicial review application challenges interlocutory orders of the arbitrator. This court has traditionally refrained from judicial review until the tribunal process has run its course, with few exceptions and even in circumstances where the challenge is to the tribunal’s jurisdiction. In addition to the jurisdictional issue raised in connection with the collective agreement itself, the judicial review application also alleges that the arbitrator has lost jurisdiction because of a reasonable apprehension of bias. The arbitrator invited the union to make that submission before him but the union declined to do so. It seems to me that the union’s position on the judicial review application is not at all strong on the merits.

[3]. On the question of “irreparable harm”, the union relies on the prejudice to the individual grievor as the primary reason it meets this aspect of the test. The grievor has been suspended without pay for almost two years. There is “still no end in sight” on the completion of the arbitration, now set to resume for a few days next month and thereafter without any dates yet scheduled.

[4]. The apparent prejudice to the grievor is tempered by these considerations:

• The judicial review application was started last October and has still not been perfected by the applicant.
• The arbitration process has proceeded quite slowly and sporadically but there is no allegation that the City has caused any undue delay.
• Even if a stay is granted, the grievor will continue to be suspended without pay.
• Even if the union is successful in its judicial review application, the whole arbitration process will presumably start again from scratch, with the grievor still on unpaid suspension.
• If the union succeeds in the arbitration, the grievor will be retroactively compensated.

[5]. Finally, on the “balance of convenience” aspect of the test there is nothing clearly favouring the applicant. To the contrary, the interests of both sides are probably better served by investing some additional time and money into the advancement of the arbitration process while the judicial review application is pending, a relatively small investment considering the time and money already spent.

[6]. In all the circumstances, I decline to exercise the discretion afforded to me in ordering a stay. The motion is dismissed.

[7]. If counsel are unable to agree upon the costs of this motion and/or the companion motion to strike parts of Mr. Wood’s affidavit, brief written submissions may be served and filed with the Divisional Court office within the next 30 days.

Aston J.