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Fairness - Remedies. PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
Here the court considers remedies where a breach of procedural fairness is found, focussing on any prejudice that may cause:Should the matter be remitted back for a new hearing?
[37] In most cases, the Court will order a new hearing when the proceedings below were procedurally unfair. However, judicial review is a discretionary remedy. The court may decline to remit a matter back for a new hearing even if the decision below is flawed, provided the Court is satisfied that the outcome of the new hearing will inevitably be the same and remitting it back will serve no useful purpose: Vavilov, at para. 142.
[38] I am satisfied this case is one of those exceptional cases where remitting it back for a new hearing will serve no useful purpose. The nature of Mr. Priddle’s conduct and whether his conduct fell within the protection afforded to union representatives were the main issues in this grievance. Neither PUC’s motion to strike nor its request to adduce reply evidence to discredit Ms. Nicholas could have changed the result on either issue. First, the Arbitrator did not rely on impugned evidence about the merits of Ms. Nicholas’s termination. Second, even if PUC had been allowed to adduce reply evidence to undermine Ms. Nicholas’s credibility, it could not have changed the result because the Arbitrator entirely accepted PUC’s evidence about the seriousness of Mr. Priddle’s conduct. Third, the Arbitrator applied the right legal test when deciding whether Mr. Priddle’s conduct was protected.
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