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No “Passing the Torch”: Only Unions and Employers (Not Grievors) May Bring Judicial Review Applications

Grievance arbitration is intended to be an efficient and cost-effective means to resolve workplace disputes without resort to costly litigation in the courts.  When an arbitrator issues an award, it is intended to be final.  There is no appeal.  Instead, unsatisfied parties may only apply to the court for “judicial review” of the decision, in which the reviewing court gives the arbitrator significant deference and will generally only act where the arbitrator made egregious errors, or the procedure was fundamentally flawed.

Although a union grieves an employer’s alleged violations of an individual employee’s rights under a collective agreement, the parties to that grievance and any arising arbitration are the union and the employer – not the employee.

The Divisional Court recently confirmed that employees unhappy with their union’s handling of a grievance or the result, will not be afforded the opportunity to attack an unfavorable arbitration decision by initiating judicial review proceedings.

In Vallabh v Air Canada and Unifor Local 2002, an employee was suspended and ultimately discharged for time theft.  An arbitrator upheld the termination.  For unknown reasons (that are not germane here), and as is almost always the case, the union did not seek judicial review of the arbitrator’s decision in the courts.

Nonetheless, the employee commenced an application for judicial review before the Divisional Court, arguing that the arbitrator’s award should be set aside. The employer objected, arguing that only the union could bring such an application.  Although it made limited submissions, the union agreed with the employer.

Since the parties to an arbitration are the union and the employer, it is only in very limited circumstances that an individual employee may bring their own application for judicial review, even if the union refuses to bring such an application.  One of those exceptions is where a collective agreement specifically provides that an employee can bring and prosecute grievance on their own behalf, without the involvement of the union (which is rarely the case).

The employee pointed out that the collective agreement allowed him to decline union representation and conduct the grievance himself.  He argued that this language also provided him with the right to pursue judicial review proceedings on his own behalf.

The employee argued that this language allowed a type of “passing of the torch,” by which he was entitled to “pick up” the grievance after the arbitrator’s award and continue with its litigation, even in the face of the union’s refusal to prosecute the matter further.

The Court rejected this argument, agreed with the employer, and dismissed the application for judicial review.

The Court noted that the employee had not, in fact, declined union representation and prosecuted his own grievance as the collective agreement permitted.  Rather, it was the union that brought and argued the initial grievance.  That meant that the party to the grievance was the union and not the individual employee.

The Court pointed out that, had the employee taken carriage of the grievance, he would have been responsible for paying part of the arbitrator’s fees, as well as cross-examining witnesses and presenting argument.

In fact, the arbitrator’s decision specifically noted that the parties to the grievance were the union and the employer.

As a result, because he was not a party to the grievance, the employee lacked the legal “standing” necessary to bring an application for judicial review.

The Court also noted that, if the employee took issue with the union’s representation of him through the grievance process, the employee could file an application with the Ontario Labour Relations Board alleging that the union failed to fairly represent him.  However, even if the union had breached its responsibilities towards the grievor, it still would not imbue the employee with the legal right to judicially review the arbitrator’s decision.

The Divisional Court’s decision, though narrow, is a helpful one.  Grievors may demand that their union apply to have unfavourable arbitration decisions judicially reviewed.  Of course, employees are not usually personally responsible to pay a union’s lawyers, even though such applications are rarely successful.  By confirming that in the vast majority of cases, only a union may initiate the judicial review process after an unsuccessful grievance arbitration, the Court placed a damper on attempts by aggrieved employees to resuscitate or continue weak grievances that their union has abandoned by bringing expensive and time consuming applications for judicial review.

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