Canadian Union of Postal Workers v. Canada Post Corp. et al., (1991) 54 O.A.C. 134 (DC)

• Judge: O'Driscoll, Steele and Rosenberg, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 13, 1991
• Jurisdiction: Ontario
• Citations: (1991), 54 O.A.C. 134 (DC)

CUPW v. Can. Post (1991), 54 O.A.C. 134 (DC)

MLB headnote and full text

The Canadian Union of Postal Workers (Applicant) v. Claude D'Aoust (Arbitrator) and Canada Post Corporation (respondent)

(271/91)

Indexed As: Canadian Union of Postal Workers v. Canada Post Corp. et al.

Ontario Court of Justice

General Division

Divisional Court

O'Driscoll, Steele and Rosenberg, JJ.

December 16, 1991.

Summary:

A union applied for judicial review of an arbitrator's decision to determine his juris­diction over a griev­ance.

The Ontario Divisional Court held that the decision of the arbitrator was within his jurisdiction.

Administrative Law - Topic 1417

Finality - Privative clauses - Scope of - The Ontario Divisional Court stated that the "... decision of an administrative tribu­nal protected by a privative clause is not reviewable by the courts unless the tribu­nal answers a question within its jurisdic­tion in a patently unreasonable manner or errs with respect to a matter that is juris­dictional - See paragraph 21.

Administrative Law - Topic 9001

Boards and tribunals - Jurisdiction - General - The Ontario Divisional Court stated that a "... pragmatic and functional analysis is to be applied in determining whether or not a question is within the jurisdiction of the tribunal. The factors to be considered in making this determination include: the wording of the enactment conferring jurisdiction on the tribunal, the purpose of the statute creating the tribunal, the reason for the existence of the tribunal, the expertise of the tribunal and the nature of the problem before the tribunal" - The court further stated that the same standard applied to a decision of an arbitrator pro­tected by a privative clause - See para­graphs 22 and 23.

Arbitration - Topic 3590

The arbitrator - Powers - Termination - Functus officio - An arbitrator rendered a decision, dealing with grievances of dis­missed employees relating to incidents which led to the dismissal - The court rendered a second decision, addressing an employee's grievance of the dismissal - The union applied for judicial review of the arbitrator's jurisdiction to render the second award - The Ontario Divisional Court concluded that the arbitrator was not functus officio at the time of rendering the decision - See paragraphs 24 to 28.

Arbitration - Topic 7956

Judicial review - Jurisdiction of arbitrator - General - Exhaustion of jurisdiction (functus officio) - [see Arbitration Law - Topic 3590 ].

Arbitration - Topic 7959

Judicial review - Jurisdiction of arbitrator - General - Excess of jurisdiction - An agreement between a union and an employer created an informal and expedited arbitration procedure - "Dis­missal grievances" were excluded and to be formally arbitrated under the relevant collective agreement - An employee, who had earlier grievances pending, grieved his discharge - The arbitrator concluded that all the grievances came within the exclu­sion and should be formally arbitrated - The union applied for judicial review, alleging that the arbitrator had exceeded his jurisdiction by referring grievances not in issue to formal arbitration - The Ontario Divisional Court dismissed the application - See paragraphs 29 to 36.

Arbitration - Topic 7959

Judicial review - Jurisdiction of arbitrator - General - Excess of jurisdiction - An agreement between a union and an employer created an informal and expedited arbitration procedure - "Dis­missal grievances" were excluded and to be formally arbitrated under the relevant collective agreement - An employee, who had earlier grievances pending, grieved his discharge - The arbitrator concluded that all the grievances came within the exclu­sion and should be formally arbitrated - The union applied for judicial review, alleging that the arbitrator exceeded his jurisdiction by amending the collective agreement and limiting the parties access to available procedures - The Ontario Divisional Court dismissed the application - See paragraphs 37 to 38.

Arbitration - Topic 8000

Judicial review - Jurisdiction of arbitrator - Error of law on the face of the record - Adjudication on question not specifically referred to arbitrator - [see first Arbitra­tion Law - Topic 7959 ].

Labour Law - Topic 7058

Industrial relations - Collective agreement - Enforcement - Jurisdiction or powers of arbitrator or board - Alteration or amend­ment of collective agreement - [see second Arbitration - Topic 7959 ].

Cases Noticed:

Paccar of Canada Ltd. v. Canadian Asso­ciation of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437, refd to. [para. 21].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (C.S.N.) v. Union des em­ployés de service, local 298 (F.T.Q.) et al., [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C 244, refd to. [para. 21].

Dayco (Canada) Ltd. and National Auto­mobile, Aerospoace & Agricultural Im­plement Workers Union of Canada et al. (CAW-Canada) (1990), 40 O.A.C. 219; 73 D.L.R.(4th) 718 (Ont. C.A.), refd to. [para. 23].

Chandler v. Alberta Association of Archi­tects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321; 62 D.L.R.(4th) 577, refd to. [para. 24].

Nelsons Laundries Ltd. and Laundry, Dry Cleaning & Dye House Workers' Inter­national Union, Local No. 292, Re (1964), 44 D.L.R.(2d) 463, refd to. [para. 24].

Jonquière (Cité) v. Munger, [1964] S.C.R. 45, refd to. [para. 24].

Air Care Ltd. v. United Steel Workers of America et al. (1976), 3 N.R. 267 (S.C.C.), refd to. [para. 37].

Statutes Noticed:

Canada Labour Code - see Labour Code.

Labour Code, R.S.C. 1985, c. L-2, sect. 58(1) [para. 20].

Counsel:

Paul J.J. Cavalluzzo, for the applicant;

David I. Wakely, for the respondent;

This application as heard on November 13, 1991, before O'Driscoll, Steele and Rosenberg, JJ., of the Ontario Divisional Court. Rosenberg, J., released the following judgment on December 16, 1991.