|
Arbitration - Judicial Review. United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre
In United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre (Div Ct, 2021) the Divisional Court granted a judicial review and ordered a new arbitrator to conduct the remand:[73] The Union has asked the Court to order a rehearing before another arbitrator. In the alternative, the Union says that this Court should provide directions to the Arbitrator so that he can conduct a fresh hearing on damages or, at the very least, issue a fresh award that appropriately addresses the problems identified by the Court.
[74] When a decision is quashed on judicial review, the appointment of a new arbitrator may be appropriate and necessary even when there is no evidence of actual or reasonably apprehended bias. In Universal Settlements International v Duscio, 2011 ONSC 968, var’d in part at 2012 ONCA 215, the Court of Appeal observed that a decision-maker may have difficulty in divorcing themselves from conclusions they have already reached and truly considering an issue afresh.
[75] Although Universal Settlements is not a labour arbitration case, this reasoning applies here. The Arbitrator’s reliance on stereotypical reasoning is also a concern.
[76] For that reason, I would set aside the portion of the Award dealing with the second grievance and direct that a fresh hearing be held before a new arbitrator.
|
