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Fairness - Summary Refusal of Motion. 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".
In these quotes the court find a fairness violation where the labour arbitrator "refused to hear and decide the preliminary objection to the admissibility of evidence":[6] I agree with PUC that the procedure below was unfair because the Arbitrator refused to hear and decide the preliminary objection to the admissibility of evidence. In my view, the arbitration was procedurally unfair. I would, however, decline to exercise my discretion to order a new hearing. I am satisfied the outcome of another hearing would inevitably be the same because the arbitrator accepted PUC’s evidence about the seriousness of Mr. Priddle’s conduct and applied the correct test to decide that his conduct fell within scope of protection for union representatives.
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[24] When an administrative decision-maker, like a labour arbitrator, makes a decision that affects the rights, privileges or interests of an individual, the common law duty of procedural fairness is presumed to apply. However, the content of the duty of procedural fairness varies and is context-specific: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 77. To decide whether the process adopted by the Arbitrator was fair, I must consider (a) the nature of the decision, (b) the nature of the “statutory scheme” under which the decision was made, (c) the importance of the decision to those affected by it, (d) the legitimate expectations of the parties, and (e) the choice of procedure made by the decision-maker: Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28.
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[32] The final factor requires an analysis of the procedural choices made by the Arbitrator. The Collective Agreement gives the arbitrator wide latitude to determine the process to be followed. But the process cannot be arbitrary or unfair.
[33] In my view, one aspect of the proceedings was unfair. It was unfair for the Arbitrator to refuse to hear PUC’s motion to strike evidence it felt was irrelevant and prejudicial. PUC had a right to know the case it had to meet during the arbitration: IWA v. Consolidated Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, at p. 339. Because the Arbitrator refused to even hear PUC’s motion to strike and refused to rule on the admissibility of the evidence about Ms. Nicholas’s termination, PUC did not know the case it had to meet. The absence of reasons explaining why the Arbitrator declined to hear the motion and whether the contested evidence was admissible adds to the unfairness. While reasons are not required for all administrative decisions, the evidentiary issue raised by PUC was important to its ability to know the case it had to meet and to effectively respond to the Union’s grievance. The Arbitrator should have at least considered PUC’s motion and given some reasons to explain whether the evidence was admissible or not.
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