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
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 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
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
In the view of the court there are only three exceptions to the
exclusive right of unions to engage in and review arbitration
When the collective agreement expressly permits employees to
have such rights.
When the right of the employee to the procedural fairness has
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 employers 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
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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