Canada Post Corporation v. Canadian Union of Postal Workers and Burkett, (1991) 54 O.A.C. 128 (DC)

• Judge: Rosenberg, Hartt and Austin, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: December 09, 1991
• Jurisdiction: Ontario
• Citations: (1991), 54 O.A.C. 128 (DC)

Can. Post v. CUPW (1991), 54 O.A.C. 128 (DC)

MLB headnote and full text

In The Matter Of the Judicial Review Procedure Act, R.S.O. 1980, c. 224;

And In The Matter Of an arbitration of National Policy Grievance N-00-88-00001 Retroactivity Payments.

Canada Post Corporation (applicant) and Canadian Union of Postal Workers and Kevin M. Burkett

(respondents)

Indexed As: Canada Post Corporation v. Canadian Union of Postal Workers and Burkett

Ontario Court of Justice

Divisional Court

Rosenberg, Hartt and Austin, JJ.

December 9, 1991.

Summary:

Canada Post Corporation applied for judi­cial review of decisions made by Kevin M. Burkett, arbitrator. The underlying issue was whether Canada Post had violated the col­lective agreement by failing to pay certain "retroactivity" payments.

The Ontario Court of Justice, Divisional Court, allowed the application in part.

Arbitration - Topic 7959

Judicial review - Jurisdiction of arbitrator - Excess of jurisdiction - A mediator mediating a collective agreement between Canada Post Corporation and the Canadian Union of Postal Workers chose the Union's position with respect to the language con­cerning the date certain benefits would be paid by Canada Post - The Union's posi­tion, however, was different than that of its president, who had communicated his view to Canada Post - In a subsequent griev­ance respecting the above mentioned ben­efits, Canada Post claimed that the Union was estopped from proposing something different than what its president outlined - The arbitrator dismissed the complaint - Canada Post sought judicial review on the basis that the arbitrator exceeded his juris­diction - The Ontario Divisional Court affirmed the arbitrator's decision - See paragraphs 28 to 37.

Arbitration - Topic 8403

Judicial review - Grounds, misconduct - Patently unreasonable interpretation - An arbitrator held that retroactivity benefits were payable to casual employees who were "on strength" according to a collec­tive agreement - The Ontario Divisional Court quashed the decision because casual employees "on strength" did not fall under the definition of part-time employees "on strength" for which retroactivity benefits were payable - See paragraphs 16 to 22.

Arbitration - Topic 8403

Judicial review - Grounds, misconduct - Patently unreasonable interpretation - An arbitrator held that casual employees who worked during the retroactive period and who were not formally terminated were entitled to a retroactivity payment under a collective agreement - The Ontario Divisional Court affirmed the decision - See paragraphs 23 to 27.

Labour Law - Topic 7042

Industrial relations - Collective agreement, enforcement - Arbitration - Jurisdiction or powers of arbitrator - Preliminary matters - An employer sought judicial review of an arbitrator's decision on the basis, among others, that he had reversed himself by first declaring that a grievance was a pol­icy grievance and then by proceeding to classify (and treat) the grievance different­ly - The Ontario Divi­sional Court denied the remedy sought - See paragraphs 1 to 15.

Counsel:

Robert P. Armstrong, Q.C., and Mark Hemingway, for Canada Post Corpor­ation;

Thomas A. McDougall, Q.C., and Barbara J. Nichols, for the Canadian Union of Postal Workers.

This application was heard on November 20, 1991 by Rosenberg, Hartt and Austin, JJ., of the Ontario Court of Justice, Divi­sional Court.

The Divisional Court delivered the follo­wing decision on December 9, 1991.