Recent ADR Cases
Court Did Not Rely on Mediator’s Report
Dunnett v. Punit, 2006 ONCJ 442 (CanLII) – November 14, 2006
Family – Custody and access – Mediation report – The parties participated in open mediation regarding the custody and access of their child – The mediation report suggested a comprehensive parenting plan – The applicant mother requested the Court to make a temporary order on the terms suggested by the Mediator – The respondent father requested the Court to make a different temporary order – The mother argued that the Court should rely on the Mediator’s report because the Mediator was skilled and in the best position to determine a suitable parenting plan – The Court rejected this argument – It is a well-established principle that a trial judge should not delegate decision-making authority to an assessor – This principle is even more pertinent in this case since the recommendations were made by a mediator, not an assessor – The Mediator’s mandate was not to determine what was in the best interests of the child, but to facilitate the resolution of a final parenting arrangement – The Court found that the temporary parenting plan proposed by the father met the child’s best interests more than the Mediator’s plan – Amongst other things, the father’s plan met the objective of the child spending more time with the mother, while preserving the continuity of care that the father and the mother had provided to the child during the weekdays
http://www.canlii.com/on/cas/oncj/2006/2006oncj442.html
Wife Alleges “Bullying” by Husband through ADR Processes
Puigbonet-Crawford v. Crawford, 2006 CanLII 38881 (ON S.C.) – November 20, 2006
Family – Separation agreement – Enforcement of ADR clause – The parties agreed to settle any differences that arose under their separation agreement without recourse to the courts – The dispute resolution process set out in the agreement incorporated both mediation and arbitration – The wife brought a motion for contempt against the husband, which raised issues of interpretation, implementation and enforcement of the separation agreement – The wife alleged that she had been “bullied throughout years of litigation at attempts of conflict resolution” by her husband – She also alleged that that there was a power imbalance because, unlike her husband, she could no longer afford a lawyer – The husband moved for an order staying the wife’s motion pursuant to section 7 of the Arbitration Act – The Court found that both parties were articulate, well educated people – They were represented by experienced counsel at the time that the separation agreement was signed and during the subsequent years of conflict resolution – The Court noted that the arbitration process is a summary one, which can deal fairly and fully with all of the parties’ issues – There were no special circumstances present that warranted refusal to enforce the agreement of the parties to mediate and arbitrate their differences – The wife’s motion for contempt was stayed
http://www.canlii.com/on/cas/onsc/2006/2006onsc16632.html
Collective Agreement Required Employer to Pay OHP
Lapointe-Fisher Nursing Home v. United Food & Commercial Workers International Union, Local 175/633, 2006 CanLII 40970 (ON C.A.) – December 8, 2006
Background Information: Prior to 1990, many unions negotiated collective agreements with their employers that required the employers to pay all or part of the OHIP premium for their employees. In 1989, the Employer Health Tax Act eliminated the requirement that OHIP premiums be paid by Ontario residents and instead, the legislature imposed a “payroll tax” on employers. This new tax regime rendered irrelevant the many provisions in collective agreements relating to an employer’s obligation to pay OHIP premiums for employees. Interestingly, as many collective agreements were renewed, these irrelevant provisions were retained. In 2004 the tax regime changed once again with the enactment of Bill 106 (the Budget Measures Act), which amended subsection 2.2(1) of the Ontario Income Tax Act. Subsection 2.2(1) imposed a tax or premium, called the Ontario Health Premium (“OHP”), based on a person’s taxable income. In light of this change, many unions “dusted off” the collective agreement provisions relating to the employers’ obligation to pay OHIP premiums on behalf of their employees and contended that based on these provisions, employers were now obligated to pay the new OHP. There were numerous grievances in 2004 and 2005 and some arbitrators sided with the unions whereas others sided with the employers. Many of the losing parties applied to the Divisional Court for judicial review. In 5 of these decisions, the Divisional Court upheld the arbitral awards, using the standard of patent unreasonableness. All of the 5 unsuccessful parties applied to the Court of Appeal. The Court grouped these cases together, as they all centred around the same 2 issues: (1) what is the standard of review for the arbitral awards, and (2) based on this standard, was the Divisional Court correct to uphold the awards. The Court used the Lapointe-Fisher Nursing Home v. United Food & Commercial Workers International Union case as its anchor case for these 5 appeals.
Labour arbitration – Standard of review – Collective agreement provisions regarding payment of OHIP and OHP – The Union argued that based on the wording of the OHIP premium payment provisions in the collective agreement, the employer was now also responsible for paying the OHP for its employees – The Arbitrator found in favour of the Union and held that the employer was responsible for paying the OHP – The employer applied to the Divisional Court for judicial review – The Divisional Court held that the standard of review was patent unreasonableness and that the Arbitrator’s award was not patently unreasonable – The employer appealed the Divisional Court’s decision to the Court of Appeal – The appeal raised 2 issues: (1) Did the Divisional Court err by applying the wrong standard of review, and (2) Did the Divisional Court err by not quashing the Arbitrator’s award – The Court of Appeal noted that it is firmly established that the standard of review of labour arbitrators interpreting collective agreements is patent unreasonableness – However, there is one important exception to this standard, namely the standard of correctness is used when the Arbitrator is interpreting a statute of general application – The employer submitted that its case fell within this exception, as the Arbitrator was interpreting Bill 106 and the Income Tax Act – The Court held that although the Arbitrator considered the legislative regime, she did so in the context of interpreting a collective agreement – The interpretation of the collective agreement provision was her essential task and the interpretation of Bill 106 and previous health revenue laws was a secondary and contextual exercise – Accordingly, the Divisional Court did not err by applying the wrong standard of review – The Court of Appeal also held that the Arbitrator did not make any crucial errors so as to render her award patently unreasonable – The appeal was dismissed
http://www.canlii.com/on/cas/onca/2006/2006onca10818.html
Employer Alleges Arbitrator Was Biased
Santa Fe Masonry v. Bricklayers, Masons Independent Union of Canada, 2006 CanLII 42640 (ON S.C.D.C.) – December 14, 2006
Workplace grievance – Application for judicial review – The applicant brought an application for judicial review on the grounds that the Arbitrator erred in law and was biased – The applicant alleged that it was improper for the Arbitrator to act as both Mediator and then Arbitrator in respect of the same grievance – Specifically, the applicant claimed that the Arbitrator acted contrary to subsection 4.8(5) of the Statutory Powers and Procedures Act – The Court held that the Statutory Powers and Procedures Act does not apply to proceedings before an Arbitrator and that subsection 48(14) of the Labour Relations Act specifically permits an Arbitrator to act as a Mediator – The applicant also alleged that the Arbitrator was biased by reason of his comment to the applicant during the mediation that “you better settle with the union because it looks like you are going to lose” – The Court held that this statement does not indicate bias since it was made during the course of the mediation – No union representatives were present at the time that the statement was made – The application for judicial review was dismissed
http://www.canlii.com/on/cas/onscdc/2006/2006onscdc14438.html
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