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PROCESS AND PROCEDURE - Arbitration - Bars

Thursday, December 19, 2019 @ 6:26 AM  


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Application by the Union for permission to appeal a decision by the Alberta Labour Relations Board. In February 2016, the Union grieved the termination of an employee of the respondent Employer. In June 2016, the Union advised it intended to pursue arbitration. A 26-month delay ensued prior to the appointment of an arbitrator. At the hearing, the Employer raised a preliminary objection based on delay. The arbitrator allowed the objection based on the equitable doctrine of laches and dismissed the grievance. The Union applied to the Board for review of the arbitrator's decision. The Board dismissed the application, finding that the arbitrator's decision was within the range of acceptable outcomes. The Union sought permission to appeal on the sole ground of whether the legal test for laches allowed a labour arbitration board to infer prejudice from mere delay and the type of grievance before it.

HELD: Application allowed. The requirement to prove prejudice was a fundamental principle of laches that an arbitrator was unable to alter. The proposed appeal had a strong chance of success based on the Union's contention that presumption of prejudice from the passage of time and nature of the grievance constituted a legal error. The matter involved unsettled law and was significant to the practice, as resolution would provide greater clarity and consistency on the law of laches in the context of labour arbitration. Permission to appeal on the proposed ground was thus granted.

United Food and Commercial Workers Canada Union, Local No. 401 v. Sofina Foods Inc., [2019] A.J. No. 1457, Alberta Court of Appeal, J. Antonio J.A., October 31, 2019. Digest No. TLD-December162019008