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Unionized Employee Cannot Seek Judicial Review of Labour Arbitrator’s Decision Without Union

dismissed
The Ontario Divisional Court recently quashed an application for judicial review brought by an individual employee seeking to overturn an arbitrator's decision denying his discharge grievance. The Court ruled in Ali v United Food and Commercial Workers Canada that an individual employee lacks standing to apply for the review of an arbitration award. Subject to limited exceptions, only the union had the right to commence, withdraw or challenge arbitration proceedings.

The proceeding in question was brought by an employee who was terminated for alleged cause by his employer. The termination was grieved by the employee's union and the matter proceeded to arbitration. The arbitrator upheld the termination and dismissed the grievance.

The union advised the employee that, in its view, there was no basis for seeking judicial review and warned him that he lacked standing to initiate an application for review of the arbitrator's decision.

Despite this, the employee applied to the Ontario Divisional Court for judicial review of the decision. The employee argued that he had been denied procedural fairness and that the union had failed to provide fair and adequate representation. The employee claimed that the failure to provide him with a language interpreter breached natural justice and procedural fairness. The union and the employer filed a motion asking the Divisional Court to quash the application.

The Court granted the motion and quashed application. The court emphasized that collective bargaining "means exactly what the words say." Employees surrender their rights to deal with the employer in order to act together collectively under the representation of the union. The union held the exclusive right to engage in grievance procedures contained in the collective agreement.

In the view of the court there are only three exceptions to the exclusive right of unions to engage in and review arbitration proceedings:

  1. When the collective agreement expressly permits employees to have such rights.
  2. When the right of the employee to the procedural fairness has been breached.
  3. When the employee was treated unfairly or inadequately represented by the union.

In the Court's view the employee was invoking the second and third exception but was not persuaded on the facts that either had taken place. It was apparent to the court that the employee did not require an interpreter. The Court was additionally concerned that these issues had never been raised by the employee at any time during the arbitration.

The result reinforces the law that employees will only rarely be permitted to go ahead without their unions to judicially review labour arbitrators. Courts will not open their doors to judicial reviews made at the behest of employees contrary to their union's wishes in all but the rarest of situations. The unionized employment relationship necessitates that employees give up their individual rights to litigate employment issues in exchange for collective representation. This is the basic quid pro quo of labour relations applied in the judicial review context.

Note: This is a reprint of an article by Michael Torrance of Norton Rose Fulbright Canada LLP.


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