Liquor Control Bd. v. OPSEU (2007), 223 O.A.C. 91 (DC)
MLB headnote and full text
Temp. Cite: [2007] O.A.C. TBEd. MR.089
The Crown in Right of Ontario (Liquor Control Board of Ontario) (applicant) v. Ontario Public Service Employees Union – Liquor Board Employees Division (respondent) and Crown Employees Grievance Settlement Board (respondent)
(426/06)
Indexed As: Liquor Control Board (Ont.) v. Ontario Public Service Employees Union – Liquor Board Employees Division et al.
Court of Ontario
Superior Court of Justice
Divisional Court
Ferrier, Howden and Himel, JJ.
February 14, 2007.
Summary:
An employee allegedly physically assaulted another employee at a Liquor Control Board warehouse. Following a police interview, the Liquor Control Board imposed a four day suspension. The union grieved. The Grievance Settlement Board allowed the grievance and held that the suspension was void ab initio. The Liquor Control Board applied for judicial review.
The Ontario Divisional Court dismissed the application.
Labour Law – Topic 9150.1
Public service labour relations – Discipline and dismissal of civil or public servants – Notice of nature of meeting – An employee allegedly physically assaulted another employee at a Liquor Control Board (LCB) warehouse – Following a police interview, the LCB imposed a four day suspension – The union grieved, asserting that there was a violation of art. 26.3 of the collective agreement because the employee was not informed of the purpose of the police interview – The LCB asserted that art. 26.3 was not violated since the provision did not apply to a meeting initiated and run by a third party – The Grievance Settlement Board allowed the grievance and held that the suspension was void ab initio – The interview initiated by the police in response to the complainant’s call to investigate a crime was a meeting within the scope of art. 26.3, since a representative of the LCB was present during the interview – The LCB should have made the employee aware of the purpose of the interview and the right to have union representation at the interview – In failing to do so, the LCB violated art. 26.3 – The LCB applied for judicial review – The Ontario Divisional Court dismissed the application – The decision was not patently unreasonable – See paragraphs 17 and 18.
Labour Law – Topic 9165
Public service labour relations – Discipline and dismissal of civil or public servants – Remedies for wrongful dismissal or suspension – An employee allegedly physically assaulted another employee at a Liquor Control Board (LCB) warehouse – Following a police interview, the LCB imposed a four day suspension – The union grieved, asserting that there was a violation of art. 26.3 of the collective agreement because the employee was not informed of the purpose of the police interview – The Grievance Settlement Board (GSB) allowed the grievance and held that the suspension was void ab initio – The LCB applied for judicial review, asserting that the remedy of automatic voiding was patently unreasonable – The Ontario Divisional Court dismissed the application – In deciding that a breach of art. 26.3 was a substantive breach warranting a vitiation of the discipline proceeding ab initio, the GSB’s determination was consistent with several of its earlier decisions – Good policy reasons supported the GSB’s consistent and informed approach to the consequences of a breach of art. 26.3 – In interpreting the rights granted by the article, such a conclusion was not clearly irrational – See paragraphs 20 to 23.
Labour Law – Topic 9353
Public service labour relations – Judicial review – Decisions of adjudicators, arbitrators or grievance appeal boards – Scope of review (incl. standard) – An employee allegedly physically assaulted another employee at a Liquor Control Board warehouse – Following a meeting with police, the Liquor Control Board imposed a four day suspension – The union grieved, asserting that there was a violation of art. 26.3 of the collective agreement because the employee was not informed of the purpose of the meeting with the police – The Grievance Settlement Board allowed the grievance and held that the suspension was void ab initio – The Liquor Control Board applied for judicial review – The Ontario Divisional Court held that the appropriate standard of review was patent unreasonableness – See paragraphs 10 to 16.
Cases Noticed:
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 10].
Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para.10].
Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, [1998] 1 S.C.R. 1079; 226 N.R. 319; 165 W.A.C. 104; 173 W.A.C. 104, refd to. [para. 11].
Lakeport Beverages v. Teamsters Local Union 938 (2005), 201 O.A.C. 267 (C.A.), refd to. [para. 11].
National Automobile, Aerospace Transportation and General Workers Union of Canada (C.A.W. – Canada), Local No. 27 v. London Machinery Inc. (2006), 209 O.A.C. 226 (C.A.), refd to. [para. 11].
Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 14].
Voice Construction Ltd. v. Construction and General Workers’ Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 15].
Canada Post Corp. v. Canada Union of Postal Workers, [2001] O.J. No. 4412 (C.A.), refd to. [para. 16].
Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577; 2003 SCC 20, refd to. [para. 16].
Medis Health and Pharmaceutical Services Ltd. v. Teamsters, Chemical and Allied Workers, Local 424 et al. (2002), 156 O.A.C. 161 (Div. Ct.), refd to. [para. 22].
Toronto (City) v. Canadian Union of Public Employees, Local 79 et al. (1997), 100 O.A.C. 298 (Div. Ct.), refd to. [para. 22].
Authors and Works Noticed:
Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (4th Ed. 2006), para. 1:3200 [para. 21].
Counsel:
John D.R. Craig and Stephanie Montgomery-Graham, for the applicant;
Ron Lebi, for the respondent, Ontario Public Service Employees Union-Liquor Board Employees Division.
This application was heard on February 14, 2007, at Toronto, Ontario, by Ferrier, Howden and Himel, JJ., of the Ontario Divisional Court. The following endorsement of the court was delivered orally on the same date.
